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UNITED STATES v. SMITH

January 29, 1993

UNITED STATES, Plaintiff,
v.
FRANK SMITH, Defendant.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 By this motion, the Federal Bureau of Prisons requests this court to clarify its July 17, 1992 Judgment and Commitment order sentencing defendant Frank Smith to a term of federal incarceration to be served prior completing his state sentence. The precise issue presented is whether a federal court may interrupt a state term of imprisonment to recommend that the state prisoner first serve a subsequently imposed federal sentence. Because the mechanism by which a federal court orders production of a defendant for the purpose of prosecution -- a federal writ of habeas corpus ad prosequendum -- merely effects a "loan" of that defendant, a federal court lacks the power to interfere with the original state sentence. Once the federal prosecution is complete, the defendant must be returned to the state institution in which he was incarcerated initially. Any consecutive federal sentences do not commence until the prisoner completes service of his stage sentence and is delivered into federal custody.

 FACTS

 In May of 1989, the Supreme Court for the County of New York imposed a fifteen-years-to-life sentence on defendant Frank Smith for a narcotics trafficking conviction. On December 12, 1990, this court issued a writ of habeas corpus ad prosequendum to the Warden at Shawamgumk Correctional Facility -- the New York State facility where defendant was incarcerated; that writ ordered the United States Marshal to produce Smith for prosecution under a federal indictment. Smith subsequently entered into a written agreement with the United States government by which he pleaded guilty to two counts of superseding information charging him with conspiring to burglarize Federally insured banks in violation of 18 U.S.C. § 371. The plea agreement provided that the government would not "oppose a request by FRANK SMITH to serve any period of Federal incarceration prior to the completion of his unexpired New York State prison term." Since the offenses to which Smith pleaded occurred before November 1, 1987, the Sentencing Reform Act of 1984 did not govern his sentence.

 On July 17, 1992, this court sentenced Smith to two three-year terms of incarceration, to run concurrently with each other and consecutive to Smith's New York State sentence. In its Judgment and Commitment Order, this court made the recommendation currently at issue in this motion: that the Attorney General allow defendant to serve his federal sentence first, before returning him to state custody to complete his pending state sentence. The Federal Bureau of Prisons (the "Bureau") now asserts that the above recommendation is flawed, for it is inconsistent with principles of comity and incorrectly presumes that a federal prosecution can interrupt a state sentence. The Bureau therefore moves this court to clarify its July 17, 1992 Judgment and Commitment order and remand defendant to state custody so that he can complete his state sentence. *fn1"

 Defendant responds to the Bureau's motion by arguing that the court's recommendation should be upheld under both governing precedent and the language of the plea agreement; alternatively, defendant requests this court to modify his sentence, pursuant to former Rule 35 of the Federal Rules of Criminal Procedure, so that he can serve concurrently the two periods of incarceration. For the reasons described below, the Bureau's motion is granted. Defendant Smith is hereby remanded to the custody of New York State to complete his state sentence, at which time he is to be delivered to federal custody and commence serving his federal sentence.

 DISCUSSION

 I. Commencement of Smith's Federal Sentence

 Before discussing the principles of comity that are central to this decision, some background on sentence computation is helpful. Under applicable statutory provisions -- 18 U.S.C. § 3585 for offenses committed after November 1, 1987 and repealed 18 U.S.C. § 3568 for offenses committed prior to that date -- the Attorney General is responsible for computing sentences. United States v. Wilson, U.S. , 112 S. Ct. 1351, 1354 (1992). Title 28 of the Code of Federal Regulations delegates that authority to the Federal Bureau of Prisons. 28 C.F.R. § 0.96 (1992). Computing a federal sentence requires two separate determinations: first, when the sentence commences; and, second, to what extent the defendant in question may receive credit for any time already spent in custody.

 A federal sentence does not commence until the Attorney General of the United States receives the defendant into his custody for service of that sentence. Pinaud v. James, 851 F.2d 27, 30 (2d Cir. 1988) (citing repealed 18 U.S.C. § 3568); Salley v. United States, 786 F.2d 546, 548 (2d Cir. 1986); see also United States v. Pungitore, 910 F.2d 1084, 1118-19 (3d Cir. 1990) ("a federal sentence does not begin to run until the defendant is delivered to the place where the sentence is to be served") cert. denied, 114 L. Ed. 2d 98, 111 S. Ct. 2009-11 (1991). When a federal court imposes a sentence on a defendant who is already in state custody, the federal sentence may commence if and when the Attorney General or the Bureau agrees to designate the state facility for service of the federal sentence. Barden v. Keohane, 921 F.2d 476, 481-82 (3d Cir. 1990); see 18 U.S.C. § 3621 (vesting designation authority in Bureau); 28 C.F.R. § 0.96 (delegating authority of Attorney General under repealed 18 U.S.C. § 4082 to Bureau).

 A federal sentence does not begin to run, however, when a defendant is produced for prosecution in federal court pursuant to a federal writ of habeas corpus ad prosequendum. Rather, the state retains primary jurisdiction over the prisoner, *fn2" and federal custody commences only when the state authorities relinquish the prisoner on satisfaction of the state obligation. Thomas v. Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992); Hernandez v. United States Attorney General, 689 F.2d 915, 918-19 (10th Cir. 1982); Roche v. Sizer, 675 F.2d 507, 509-10 (2d Cir. 1982); see also Thomas v. Brewer, 923 F.2d 1361, 1366-67 (9th Cir. 1991) (producing state prisoner under writ of habeas corpus ad prosequendum does not relinquish state custody); Salley, 786 F.2d at 547-48 (defendant produced and sentenced in federal court via writ of habeas corpus ad prosequendum did not begin to serve consecutive federal sentence until delivered into federal custody).

 This rule derives from the fact that the federal writ of habeas corpus ad prosequendum merely loans the prisoner to federal authorities. Whalen, 962 F.2d at 361 n.3; In re Liberatore, 574 F.2d 78, 79 (2d Cir. 1978); Crawford v. Jackson, 191 U.S. App. D.C. 170, 589 F.2d 693, 695 (D.C. Cir. 1978) ("When an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be 'on loan' to the federal authorities so that the sending state's jurisdiction over the accused continues uninterruptedly. Failure to release a prisoner does not alter that 'borrowed' status, transforming a state prisoner into a federal prisoner."), cert. denied, 441 U.S. 934 (1979); see also In re Sindona, 584 F. Supp. 1437, 1442-43 (E.D.N.Y. 1984) (opinion of this court discussing purpose of writ). Principles of comity require that when the writ is satisfied, the second sovereign return the prisoner to the first sovereign. In this case, New York State has primary jurisdiction over Frank Smith, for he was arrested and sentenced by the state prior to any federal proceedings in connection with his federal crimes.

 Reference to the Second Circuit opinion of In re Liberatore, 574 F.2d 78 (2d Cir. 1978), helps elucidate the respective powers of state and federal jurisdictions upon issuance of a writ of habeas corpus ad prosequendum. While serving a two-year state sentence, the defendant in Liberatore was removed to federal court pursuant to a federal writ of habeas corpus ad testificandum. Id. at 80. The purpose of this removal was so that defendant could provide information to a federal grand jury. Defendant refused to provide this information, and the federal district court held him in civil contempt. Id. at 81. As part of its contempt order, the district court tolled defendant's state sentence during the time defendant was under confinement in federal court. On appeal, the Second Circuit affirmed the finding of contempt, id. at 82-84, but held that the district court had no authority to ...


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