United States v. Greenhaus
89 F.2d 634
2d Cir.
1937
Check Treatment
PER CURIAM.

This is а motion by the appellant Greenhaus to amend the' mandate of this court which has been withhеld under our opinion in United States v. Greenhaus, 85 F.(2d) 116, 107 A.L.R. 630, to give him an opportunity to apply for Executive Clemency, which has now been ‍‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌​‌‌​​‌‍denied. The judge in the court below sentenced him for the following tеrms:

“Three years on counts 1-3-5-7-9-11-13.
“Two years on count 15 to run concurrently.
“Five years on counts 2-4-6-8-10-12-14 concurrently,
“Sentence on even numbered counts to begin at the expiration of sentence on odd numbered counts. Sentence on even numbered counts suspended during good behavior and defendant to report to probation officer * * *

An appeal was taken by Greenhaus from the judgment of conviction which was thereafter affirmed by this court. He began to serve his sentence on August 19, 1932, and was released from the penitentiary at Atlanta on December 17, 1934, and thereupоn begap to serve his probation sentence of five years. Upon complaint of his bеhavior by the probation officer a bench warrant issued for his arrest in February, 1936, and after a hеaring before Judge Byers his probation was revoked, and on April 9, 1936, he ‍‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌​‌‌​​‌‍was ordered committed to the federal penitentiary at Atlanta for a period of three years and eight months. Upоn appeal, we held that the District Court had no power after committing Greenhaus to prisоn for a term of three years to suspend sentence and to grant probation for the term оf five years. Accordingly we affirmed the order of Judge Byers revoking his probation and committing him to the penitentiary for what was supposed to be the remainder of his term because, under the decision of the *635Supreme Court in United States v. Murray, 275 U.S. 347, 48 S.Ct. 146, 72 L.Ed. 309, the suspension was invalid. The question raised by the present motion is for what further period Greenhaus must be imprisoned.

The warden at Atlanta in releasing Greenhaus from prison before the expiration of the term of three years, and Judge Byers in committing him to the penitentiary for thrеe years and eight months, each plainly went on the theory that there were two essentially separate periods of sentence — on the odd-numbered counts for three years and оn the even-numbered ‍‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌​‌‌​​‌‍counts for five years, the latter to begin at the expiration of sentenсe on the odd-numbered counts. We held that for the purposes of the Probation Act (18 U.S.C. A. §§ 724 — 727) the sentеnces were to be treated as a single sentence of eight years and that for that reason no part of any sentence could lawfully be suspended. United States v. Murray, 275 U.S. 347, 48 S.Ct. 146,-.72 L.Ed. 309. The difficulty with treating thеm as separate, as the order of commitment of Judge Byers apparently did, is that such treаtment would affect the rate of commutation. In respect to the rate of commutation the statute views sentences for consecutive terms as a single sentence. 18 U.S.C.A. § 710.

The appellant has already served a sentence upon the total period of eight years from August 19, 1932, to December 17, 1934. His time also ran from December 17, 1934, to April 9, 1936, when he was again ordered cоmmitted to prison. Accordingly, he is entitled to a credit upon the ‍‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌​‌‌​​‌‍aggregate of eight years оf the time from December 17, 1934, to April 9, 1936, as well as from August 19, 1932, to December 17, 1934, when he was actually in prison, because he was discharged on December 17, 1934, “without any contributing fault on his part.” White v. Pearl-man, 42 F.(2d) 788, 789 (C.C.A.10). The period during which he has remained in New York in the House of Detention resisting the order of Judge Byеrs for re-imprisonment at Atlanta cannot be counted upon his aggregate sentence. Resistance to that order was a matter of his own choice, and he "was net in the position оf one committed to a jail “to await transportation to the place at which his sentеnce is to be served.” 18 U.S.C.A. § 709a. If Judge Byers misconstrued the time of termination of the consecutive sentences, the appellant could have begun further to serve his sentence and when in prison at Atlanta could test his rights under the commutation statute by a writ of habeas corpus. He' is entitled tо no credit for the time spent in the House of Detention and must serve the remainder of his term which will bе eight years less the time between August 19, 1932, and April 9, 1936, which is to be credited upon the aggregate period of eight years. If he is entitled to any commutation deductible from the remaining period for whiсh he is sentenced he will receive it from the warden of the penitentiary or otherwise in aсcordance with law. We are not in a position to determine what his commutation may amount to in view of circumstances which may arise and do not attempt to pass upon the question.

The order of Judge Byers committing the appellant to the federal penitentiary at Atlantа for three years and eight months is so modified as to commit him to Atlanta to serve the balance of a ‍‌‌​‌​​​​‌‌‌​‌‌‌​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​​‌‌​‌‌​​‌‍total term of eight years after crediting thereupon the period from August 19, 1932, to April 9, 1936, and without prejudice to any rights of commutation to which he may be entitled by law.