Appeal from the District Court of the United States for the Southern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The appellant Greenhaus was convicted in the District Court for violating sections 338 and 88 of title 18 of the United States Code (18 U.S.C.A. §§ 88, 338). There were fourteen substantive counts for devising a scheme to defraud through the use of the mails, and one conspiracy count. On March 6, 1931, the appellant was sentenced by Judge Knox as follows:
"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 and on condition that defendant violate no State or Federal Law, that he behave himself well and shall not engage in any shape or form in any stock or bond sale."
Under the foregoing judgment the appellant began to serve his sentence at Atlanta. He was released from prison on December 17, 1934, and directed to report to a probation officer to whom he made semimonthly personal reports.
On the 10th of February, 1936, a petition was filed in the District Court by the chief probation officer for the Southern District of New York, which recited that the appellant had "again returned to the crime for which he was placed on probation, namely, illicit sale of securities, and is now wanted for violation of the New Jersey Securities Act for the embezzlement of $20,000 * * *." Upon the petition a bench warrant was issued for his arrest and a hearing had before Judge Byers, at which testimony was taken, and it was ordered that his probation should be revoked and that he should be committed to the custody of the Attorney General for imprisonment in a federal penitentiary or prison camp for a period of three years and eight months.
The appellant has appealed from the order revoking his probation and directing that he be committed to prison. The chief basis of his appeal is that after the court had directed a prison sentence under the odd numbered counts, it no longer had any power to suspend the execution of sentence and invoke the Probation Act (18 U.S.C.A. §§ 724-727) in respect to the even numbered counts. He argues that because of the invalidity of the suspension and probation under the even counts that the sentence itself was void and that he should be discharged from custody.
If the suspension of execution of the sentence on the even numbered counts in the indictment was lawful, there certainly was every justification for the action of the chief probation officer. The proof was ample that Greenhaus shortly after release from serving his prison sentence left the jurisdiction of the court without permission and actively engaged in swindling. We are satisfied, however, that the suspension of sentence and accompanying probationary control were not lawful, and while under our view of the law that fact cannot result in any benefit to Greenhaus, it becomes important to determine the powers of the courts to suspend sentences and admit to probation in future cases that may arise.
In United States v. Murray, 275 U.S. 347, 48 S. Ct. 146, 72 L. Ed. 309, it was held that where a person had begun to serve his sentence, the court was without power under the Probation Act (18 U.S.C.A. §§ 724-727) to suspend further execution and grant probation even though in that case the term at which sentence was imposed had not expired. The ground of the decision was that the probation system was inaugurated in order to give first offenders a chance to mend their ways and to that end they should be kept out of prison and not subjected to the contaminating influence of hardened criminals who are serving their terms. Following the reasoning of that decision, it has been held that where sentence is suspended and probation follows it cannot be made conditional on serving a prior sentence. White v. Burke (C.C.A.) 43 F.2d 329; United States v. Praxulis (D.C.) 49 F.2d 774, and Archer v. Snook (D.C.) 10 F.2d 567. Doubtless the language of the Probation Act was capable of a broader construction as indeed Taft, C.J., intimated in his opinion in United States v. Murray, 275 U.S. 347, 358, 48 S. Ct. 146, 72 L. Ed. 309; but we think that the reasoning of that decision settled the law that probation cannot be made conditional upon serving a prior portion of a sentence both on the grounds we have mentioned and also because such a mode of construing the act might subject defendants to conflicting disciplines by the courts, the Executive, and the parole board. More than that, it would result in confusion in determining the rates of commutation of sentence to be applied under the Commutation Act, § 1. U.S.C. § 710, title 18 (18 U.S.C.A. § 710).
If in the present case there had been a single sentence with suspension and probation as to part, the decision in United States v. Murray, 275 U.S. 347, 48 S. Ct. 146, 72 L. Ed. 309, would clearly apply. The question here is whether to treat the original sentences as essentially for a single term, or as entirely separate judgments for separate terms. If they are to be treated as for a single term, then the suspension with probation was unlawful under United States v. Murray, 275 U.S. 347, 48 S. Ct. 146, 72 L. Ed. ...