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In re Grand Jury Investigation


August 2, 1976


542 F.2d 166.

Seitz, Chief Judge, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges. Aldisert, Circuit Judge.

Author: Per Curiam


Alexander Hartzell has petitioned for rehearing in this case. The petition having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. The failure of a petition to achieve the necessary votes for rehearing does not, notwithstanding any intimation to the contrary in Judge Aldisert's dissenting opinion, imply any judgment on the merits and has no jurisprudential significance.


Aldisert, Circuit Judge.

The full court having accepted the panel majority's conclusion that there was jurisdiction in the district court in 1976 to order a de facto alteration of the 1975 sentence, it now becomes necessary for me to state why I believe the full court should examine the statutory and constitutional hypotheses upon which the panel majority sustained the action of the district court.

To the extent that my brothers Gibbons and Garth rely on the construction given 18 U.S.C. § *fn35681 in United States v. Liddy, 166 U.S. App. D.C. 289, 510 F.2d 669 (1974) (in banc), they rest on shaky premises. Liddy contended that § 3568 did not permit tampering with a valid sentence. He argued that the statute "establishes a strict method of sentence calculation that cannot be varied without some specific statutory authority," ibid. at 673, and that there could be no interruptions that would delay his serving the sentence imposed on him.*fn2 The Liddy court's answer to this important contention was not responsive: "[When] Congress enacted section 3568, it was primarily concerned with the commencement date of a sentence, not with its subsequent calculation and termination date." 510 F.2d at 674.

Obviously, the legislature was not interested in the commencement date in vacuo. In § 3568, Congress specifically set forth the date a sentence begins to run with an awareness of the importance of that date, particularly with regard to deduction for good conduct:

[Computations] for deduction for good conduct shall be computed beginning with the day on which sentence commences to run. These provisions [of § 3568] are very necessary to remove confusion under existing practices. There is often uncertainty as to when a sentence does commence to run and as to the date from which computation of good conduct deductions shall be computed.

S. Rep. No. 803, 72d Cong., 1st Sess. 2 (1932); see 510 F.2d at 674. The legislative interest in the commencement date had the deliberate purpose of fixing that date so that the release date, including deduction for good conduct, could be calculated with some degree of certainty and uniformity. "Read more broadly [§ 3568] is a manifestation of a legislative purpose that individuals sentenced to imprisonment shall not be denied the opportunity to commence service of their terms by administrative delay or preliminary confinement." 510 F.2d at 681 (MacKinnon, J., dissenting).

To the extent that the Liddy court concluded that Congress was not primarily concerned with sentence termination, it was guilty of a classic non sequitur, "acceptance of a conclusion which does not follow logically from given premises or from any antecedent statements."*fn3 To the extent that the Liddy court concluded that Congress was not primarily concerned with sentence calculation, the court was simply wrong. The statute itself says that "[no] sentence shall prescribe any other method of computing the term."

Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974), cert. denied, 420 U.S. 962, 43 L. Ed. 2d 440, 95 S. Ct. 1353 (1975), a second case relied on by the majority, does not meet the critical issue of interfering with the prisoner's right to a timely release with appropriate deduction for good conduct. Aside from quoting the statute, the Anglin court's entire discussion of it was this:

The language of section 3568 is unambiguous. Credit shall be given for time spent "in connection with the offense or acts for which sentence was imposed" and "offense" is defined as a "criminal offense." The confinement for which petitioner seeks credit was imposed in connection with a civil contempt (refusal to testify) and not in connection with the criminal offense "for which sentence was imposed" (theft from interstate shipment and illegal use of firearms). Hence the language of section 3568 does not support petitioner. The parties have not directed us to any pertinent legislative history relative to either section 3568 or 28 U.S.C. § 1826(a) nor have we discovered any which would tend to solve the issue on appeal.

504 F.2d at 1167. Martin v. United States, 517 F.2d 906 (8th Cir.), cert. denied, 423 U.S. 856, 46 L. Ed. 2d 81, 96 S. Ct. 105 (1975), blindly followed Liddy and Anglin without perceiving the illicit reasoning and illegitimate conclusion. Williamson v. Saxbe, 513 F.2d 1309 (7th Cir. 1974), the final case relied on by the majority, also followed Anglin without reasoned analysis of the serious issues involved.*fn4

I find Judge MacKinnon's dissenting opinion in Liddy, 410 F.2d at 677-88, and Judge Heaney's dissenting opinion in Martin, 517 F.2d at 910-16, well reasoned and persuasive. Accordingly, I would have in banc consideration of the statutory question whether sandwiching an additional period of incarceration in the midst of a sentence being served violates 18 U.S.C. § 3568 as interfering with the computation of the sentence and affecting the right to deduction for good conduct from the commencement of the sentence.

Should the court in banc find no statutory violation, it then properly could consider two important constitutional issues which lurk in this proceeding. First, does the sandwiching of the additional period of incarceration - with consequent effects on early release - violate the Fifth Amendment's double jeopardy prohibition? See United States v. Benz, 282 U.S. 304, 306-07, 75 L. Ed. 354, 51 S. Ct. 113 (1931). This is an important issue that has not been thoroughly considered in any of the opinions. Second, does the thirty-day limitation for disposition of appeals in 28 U.S.C. § 1826(b)*fn5 deprive a defendant of due process of law? I now have second thoughts about my previous agreement with the majority on this point. It is no answer that courts traditionally cannot adhere to this unreasonable and unworkable deadline. Thus, though this appeal was filed on April 15, it was submitted on May 4, and not decided until June 22, 68 days after filing. Nevertheless, appellant had counsel appointed under the Criminal Justice Act as of April 20 (he appeared pro se in the trial court) and was necessarily required to file his brief by April 30, two weeks after filing the appeal and ten days after the appointment of counsel. It is one thing to conclude, as the panel did, that the briefs in this case were adequate. It is quite another to conclude that a procedure which requires the briefing of novel and complex issues within such a short period passes due process muster. I would have the full court meet this issue too.

Accordingly, I dissent from the order denying rehearing in banc.

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