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December 13, 1956

David RIBLER, Defendant

The opinion of the court was delivered by: EDELSTEIN

The defendant has moved for resentencing, on the ground of health and for other reasons directed to the discretion of the court. While serving a sentence in a state penitentiary, imposed by a New York court, he was brought before this court on a habeas corpus ad prosequendum to plead to a ten count indictment. Upon a plea of guilty to all counts, I sentenced him, on December 30, 1952, to one year on count one, to begin after completion of the sentence he was then serving at Sing Sing Prison; imposition of sentence on the remaining counts was suspended and he was placed upon probation for two years after the completion of the sentence on count one. The judgment and order of commitment ordered the issuance of a bench warrant. The defendant was returned to sing Sing where he served until his release on November 20, 1956. Upon his release he was arrested by a United States Marshal and conveyed to the United States Courthouse, Foley Square, New York, where he was placed in the marshal's cell block. The marshal endorsed the bench warrant, on November 20, 1956, as follows: 'Received this warrant 30th day of Dec., 1952 at New York City and executed the same by arresting the within named David Ribler at Sing Sing Prison, Ossining, N.Y., on the 20th day of Nov. 1956, and have his body now in Court, as within I am commanded.' The notice of motion for resentence was served on the United States Attorney while the prisoner was being detained in the cell block in the courthouse. He was taken to Federal Detention Headquarters at 5:33 p.m. of the same day.

The relief sought is the suspension of the execution of the one year sentence, pursuant to 18 U.S.C. § 3651. The time is long past for a reduction of the sentence under Rule 35, Federal Rules of Criminal Procedure, 18 U.S.C., but the time within which probation may be granted is governed by the Probation Act and not by Rule 35. Phillips v. United States, 8 Cir., 212 F.2d 327; Kelley v. United States, 10 Cir., 209 F.2d 638. The probationary power of the court ceases with the beginning of the service of the sentence. United States v. Murray, 275 U.S. 347, 357, 48 S. Ct. 146, 72 L. Ed. 309. Where there are consecutive sentences composing a single cumulative sentence, the probationary power ceases immediately upon imprisonment for any part of the cumulative sentence. Affronti v. United States, 350 U.S. 79, 76 S. Ct. 171, 100 L. Ed. 62. But inasmuch as the consecutive state and federal sentences imposed upon Ribler do not constitute a single cumulative sentence, the issue to be determined, in order to ascertain the court's power to grant probation at this time, is whether the motion was made before the prisoner commenced his federal sentence.

 Section 3568 of Title 18 U.S.Code, provides:

 'If any * * * person shall be committed to a jail or other place of detention to wait transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place of detention.'

 The prisoner was in the courthouse cell block when the motion was made. The problem posed, therefore, is whether he was then in a place of detention awaiting transportation to the place at which his sentence was to be served, so as to commence the running of his sentence.

 It was held in Moody v. Johnston, 9 Cir., 70 F.2d 835, that a detention room adjoining a courtroom was not a place of detention where sentence could commence. It is doubtful that a cell block in the courthouse is in a different category from such a detention room. Even if it should be, it cannot be said that the prisoner was in a place of detention to await transportation to the place at which he was to serve his sentence. He did not go to such a place from the courthouse cell block, for he was taken directly to Federal Detention Headquarters at West Street. He could not have started on his journey to prison from the courthouse cell block, for the Attorney General had not (from all that appears in the affidavits) designated the institution in which he was to be confined. There appears to have been no intention to detain the prisoner in the courthouse until his journey to the penitentiary should begin. He was taken there, apparently, for the convenience of the marshal, before his delivery to West Street. It was at West Street where he awaited transportation to a penitentiary, as evidenced by the marshal's endorsement on a certified copy of the judgment and commitment order: 'I have executed the within Judgment and Commitment as follows: * * * Defendant delivered on Nov. 20, 1956 to Warden, Federal Detention Hdqrts., New York, N.Y. for service of sentence at that institution, or for transportation to another institution designated by the Attorney General, by prison van.'

 In any event, it appears from the marshal's endorsement on the bench warrant that his prisoner was, when brought to the courthouse, delivered into court. And since he was not at that time transferred to executive custody, he cannot be said to have commenced to serve the term of imprisonment provided for in the sentence imposed. Walton v. United States, 92 U.S.App.D.C. 26, 202 F.2d 18.

 Accordingly, I conclude that the court has the power to resentence. A disposition on the merits will await the affidavit of the United States Attorney, or, if necessary, a hearing.

 Supplemental Memorandum.

 It has been represented to the court on behalf of the defendant, toward the exercise of the court's discretion in the matter of his resentencing, that his life would be in peril because of extremely bad health if he were to be imprisoned now; and it has been further represented that 'Since December 30, 1952 it has become apparent that David Ribler is innocent of the charge for which he was imprisoned in Sing Sing * * *.'

 The Government, in opposing the motion to resentence, submits a letter from the Chief Medical Officer of the Federal Detention Headquarters where the defendant is currently being held. From this letter, it is apparent that the defendant is a sick man, although the doctor expressed no opinion on the peril to his life from continued imprisonment. The Medical Officer gave the diagnosis of pulmonary emphysema, advanced with pleural fibrosis, and the prognosis of 'poor'.

 On the matter of the defendant's alleged innocence of the crime for which he was imprisoned in Sing Sing, the Government takes the position that it is irrelevant to the consideration of the motion, inasmuch as it is a matter which has been passed upon by the courts of the State of New York. However, the affidavit of the Assistant United States Attorney indicates that 'In the interest of justice * * * the facts relating to this allegation that have come into the possession of the Government following investigation have been called to the attention of this Court.'

 The imposition of a sentence on a convicted defendant is not an exercise in mathematics or pure logic. Would that it were. For it is beyond question the most intellectually trying, painfully difficult, heart-rending and soul-searching task a judge has. There are, of course, some guideposts for the exercise of the power. The statutes present, for the most part, broad limits. Within those limits, the judge is guided by varied and oft-times conflicting theories. He may impose a sentence with no other objective than to punish the transgressor. Or he may feel it necessary to remove a criminal from intercourse with society in order to prevent future harm. Or he may feel that the deterrence of others from the path of crime is the indicated approach. Or he may be moved by reason, compassion or insight to provide an opportunity for rehabilitation. Any of these motives or any combination of them may be brought to bear in any particular case, and the judge may yet be left with the feeling of an unsatisfactory result. Each defendant presents his own problem, and, perhaps, so does each judge. Be that as it may, I must sentence this defendant as justly as it is within my power to do so, consistently with the dictates of my conscience.

 The fact that the defendant may not be in peril of his life by continued imprisonment is not necessarily an argument that continued imprisonment is indicated. He is unquestionably quite ill, and after an imprisonment of over four years in a state prison, it would seem that an indulgence in mercy would not be a distortion of justice. In his condition he is not likely to offend the law, should he be permitted to leave prison. In the circumstances, to inflict additional imprisonment would be to detract from ...

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