Joseph v. United States of America Brief Amici Curiae

    In the

Imtrfr fla irs  Court of Apprals
F ob t h e  F if t h  C ir c u it

No. 25352

Louis J o s e p h ,

-v-
Appellant,

U n it e d  S ta tes  o f  A m er ic a ,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AND NATIONAL 
OFFICE FOR THE RIGHTS OF THE INDIGENT, AS 
AMICI CURIAE

J a ck  G r een berg  
M ic h a e l  M e l t sn e r  
H aywood B u r n s

10 Columbus Circle 
New York, New York 10019 

Attorneys for the N.A.A.C.P. 
Legal Defense and Educational 
Fund, Inc., and National Office 
for the Rights of the Indigent



Isr the

Intteii i>tatp£ QJourt ni Appeals
F or t h e  F if t h  C ir c u it

No. 25352

Louis J o s e p h , 

U n it e d  S tates o f  A m er ic a ,

Appellant,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

REPLY BRIEF FOR THE N.A.A.C.P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AND NATIONAL 
OFFICE FOR THE RIGHTS OF THE INDIGENT, AS 
AMICI CURIAE

A R G U M E N T
This Court Should Reject Any “Conclusive Presump­

tion” Test as Being Violative of the Due Process Clause 
of the Fifth Amendment to the United States Constitu­
tion.

Amici curiae urged that appellant is entitled to credit 
for time served prior to trial by reason of being unable 
to make bail due to his poverty. The government has 
agreed—conceding that “the contrary proposition is re­
plete with constitutional infirmaties [sic] and distorts the 
Congressional purpose of the statute” (Appellee’s brief,



2

p. 9). This is also now the view of this court as stated 
explicitly in Bryans v. Blackwell, No. 24641 (December 
20, 1967), slip opinion p. 7: persons “who have not been 
given the benefit of uncounted time served” must be given 
sentence credit for such a period (emphasis in original). 
Thus, Louis Joseph is entitled, as a matter of constitu­
tional right, to credit for the 34 days he spent in jail prior 
to trial. The rub is that the government would ask this 
court to “conclusively presume” that credit for this period 
has already been given, because, as a matter of mathe­
matical calculation, it could have been given.

Our Constitution does not countenance such a glib and 
cavalier treatment of a constitutional right.

It is an elemental principle of our system of justice that 
in order to sustain a presumption there must be a rational 
connection between the facts shown and the fact presumed. 
Tot v. TJ. S., 319 U. S. 463 (1943); United States v. Romano, 
382 U. S. 136 (1965); see also, Note, 55 Colum. L. Rev. 
527 (1955). No such nexus exists here. In fact, as this 
court so clearly pointed out in Bryans v. Blackwell, supra 
at 5-6, one of the major reasons Congress found it necessary 
in 1966 to pass a statute extending sentence credit to all 
convicted persons was that its prior assumption that judges 
in all eases were allowing pre-sentence credit was ill- 
founded. The truth was that in some cases credit was being 
extended and in others it was not.

The flimsiness of the presumption that the government 
asks this court to indulge is underscored by a considera­
tion of the subsidiary presumptions that are implicit in 
this major presumption. To support its conclusion that 
credit was given because it could have been given, the 
government is, in effect, asking the court to presume that



3

(a) Judge Christenberry was one of the judges who prior 
to 1966 gave credit for time served prior to trial; (b) he 
did so in this case, although the record is silent on this 
point; and (c) he actually intended that the defendant’s 
sentence here be 31 months and 4 days, rather than the 2 
years and 6 months sentence he pronounced at the time 
of conviction.

If there is a constitutional right to credit, as is conceded, 
and the sentence passed is not clear as to whether credit 
has been given, then the sentence must, of necessity, be 
invalid. As this court said, as recently as December 4, 
1967, in passing on an unclear sentence: “It is our view 
that the sentence is ambiguous and for that reason invalid.” 
Smallwood v. U. S. A., 386 F. 2d 175, 176 (1967). The 
court quoted with approval the language of the Seventh 
Circuit in United States ex rel. Chasteen v. Denemark, 
138 F. 2d 289 (1943) to the effect that:

“A sentence in a criminal case should be clear and 
definite . . . and be so complete as to need no con­
struction of a court to ascertain its import.”

That clearly cannot be said of the sentence in the instant 
case. Nor can doubts surrounding it be removed by the 
manipulation of a slide rule. See, Dwnn v. United States, 
376 F. 2d 191, 194 (4th Cir. 1967).

The Government urges that its test, and its test alone, 
is “congruent with effective judicial administration” (Ap­
pellee’s brief p. 14). This statement raises the basic ques­
tion of what are the goals that the administration of justice 
is meant to serve. Certainly ours is not a system that 
vaunts efficiency and convenience over the fundamental 
rights of those before the bar. The protection of consti­



4

tutional rights is of primary importance. At any rate, 
the government has failed to come forward with anything 
other than a bare assertion to carry its heavy burden of 
showing that administrative inconvenience is sufficient to 
render a constitutional right meaningless in practice. The 
government exaggerates the disruption that would take 
place and underestimates the capability of our courts to 
cope with the number of cases that would be brought 
should the constitutional right to sentence credit be ac­
corded full recognition for those convicted between the 
time that the sentencing discrepancy was created by the 
1960 amendment to 18 U. S. C. §3568 and the time it was 
eradicated by the 1966 amendment. Our focus is actually 
upon a relatively small group of convicted persons. Deal­
ing with the claims they may raise certainly should not be 
an unmanageable task for a system that has witnessed 
the retroactive application of criminal rules of a far more 
wide-ranging character without seriously jeopardizing the 
stability of the administration of justice. See e.g., Gideon 
v. Wainwright, 372 U. S. 335 (1963).

In this connection it is important to note that the United 
States Court of Appeals for the Fourth Circuit has not 
deemed the administrative burden to be so large as to 
justify vitiating a vital constitutional right. Originally, 
the court in the slip opinion in Dwrm, supra, had adopted 
a “conclusive presumption” test. However, upon a further 
realization of the import of such an approach, the court 
withdrew all language in the opinion sanctioning such a 
test, and made it clear that the question of whether credit 
had been given must be decided according to the facts in 
the particular case. Dtmn, supra at 193; see also, Bryans., 
supra at 9; Padgett v. United States, No. 11,495 (4th Cir., 
July 5,1967).



5

It is true that the court in the Bryans case, supra, used 
the mathematical formula test. But it appears from a read­
ing of the opinion that the serious question of the con­
stitutionality of such an approach was not considered by 
the court. It was concerned with deciding whether sen­
tence credit was required, as a matter of law—not the 
method by which it would be determined whether the 
credit had been given. If the question of whether the “con­
clusive presumption” test can pass constitutional muster 
had been before the court in Bryans, amici submit that 
that court would have had to answer the question in the 
negative. That question is now squarely before this court 
and amici urge that it do no less.1

The constitutional infirmity of a “conclusive presump­
tion” test is pointed up by appellee’s own brief. Though 
it advocates what it labels a “conclusive presumption,” 
it elaborates a standard that would permit inquiry into 
the record to see whether credit was given. This at least 
amounts to a rebuttable presumption, which would permit 
Joseph to show on remand that he had not received credit.

While even this solution would be superior to a con­
clusive presumption we do not believe that the burden of 
proof can be so shifted with respect to a constitutional 
right to equitable sentencing. The burden to make its 
criminal sentences unambiguous and its presumptions ra­
tional is imposed upon the trial court by the United States 
Constitution—a burden amici submit it has not met.

1 As the question of the constitutionality of a “conclusive pre­
sumption” test was not presented or decided in Bryans, this court 
should assiduously avoid finding a conflict with that case on this 
issue. This is especially true since an en banc hearing would be a 
cumbersome: and unrealistic way of dealing with the problem, given 
the present posture of this case.



6

CONCLUSION

Wherefore, this Court should reject the “conclusive 
presumption” test, reverse the judgment of the Court 
below, and remand this case to it with instructions to 
credit appellant with the presentence time served in cus­
tody if an appropriate hearing does not indicate that 
this has already been done.

Respectfully submitted,

J a ck  G r een berg  
M ic h a e l  M e l t sn e r  
H aywood B u r n s

10 Columbus Circle 
New York, NewT York 10019 

Attorneys for the N.A.A.C.P. 
Legal Defense and Educational 
Fund, Inc., and National Office 
for the Rights of the Indigent



7

CERTIFICATE OF SERVICE

I hereby certify that on February 28, 1968, I served a 
copy of the foregoing Reply Brief Amicus Curiae on Mr. 
Louis Joseph, PMB 89652, Atlanta, Georgia 30315, and 
Louis C. LaCour, Esq., United States Attorney Eastern 
District of Louisiana, 500 St. Louis Street, New Orleans, 
Louisiana 70130 by prepaid, First Class mail.

M ic h a e l  M e l t sn e r  
Attorney for Amici Curiae



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