ARNOLD W. ELLIS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5900 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A1-A6) is reported at 907 F.2d 12. JURISDICTION The judgment of the court of appeals was entered on July 5, 1990. The petition for a writ of certiorari was filed on October 3, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the government properly held petitioner in confinement beyond his discretionary parole date in order to make the determination that he was not indigent and had the ability to pay his fine. STATEMENT In 1983 petitioner was convicted of conspiracy to import marijuana into the United States, in violation of 21 U.S.C. 952(a), 960, and 963, conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 846, two counts of importing marijuana into the United States, in violation of 21 U.S.C. 952 and 960, and two counts of possession of marijuana with intent to distribute, in violation of 21 U.S.C. 841(a)(1). He was sentenced to a total of 12 years' imprisonment and a "stand committed" fine of $60,000, which requires him to remain in prison until the fine is paid. Pet. App. A2. 1. The Parole Commission set a presumptive parole release date for petitioner of June 23, 1989. Gov't C.A. Br. 3. On May 5, 1989, petitioner applied to the Bureau of Prisons for a determination of his ability to pay the fine; the Bureau of Prisons forwarded this application to the district court for the scheduling of an indigency hearing pursuant to 18 U.S.C. 3569. Ibid. Section 3569 provides that when a convict sentenced to pay a fine "has been confined in prison, solely for the nonpayment of such fine," he may apply to the magistrate for an indigency hearing. If the magistrate determines that the convict is unable to pay the fine and has no non-exempt property exceeding $20 in value, Section 3569 requires that the convict be discharged. /1/ Thereafter, on June 16, 1989, the Bureau of Prisons advised the district court that petitioner's release date had been postponed until October 21, 1989, and requested that the court postpone any action on petitioner's indigency application. The Bureau of Prisons explained that the delay of petitioner's release date was due to petitioner's failure to obtain an approved release plan. The lack of an approved release plan was the result of petitioner's failure to obtain post-release employment. Gov't C.A. Br. 3. On September 27, 1989, the Bureau of Prisons requested the magistrate to schedule a hearing on petitioner's indigency application, and an indigency hearing was conducted on October 20, 1989. At the hearing, the government established that petitioner and his wife owned a house worth approximately $200,000, upon which there remained only a small mortgage, and that petitioner could borrow against his equity in the house to pay the fine. Petitioner introduced no convincing argument to the contrary, nor any evidence to support his claim of indigency. The magistrate accordingly denied petitioner's release request, and on December 17, 1989, the district court upheld the magistrate's ruling. Pet. App. A2. 2. Petitioner appealed the district court's decision. While the appeal was pending, on May 24, 1990, the Regional Director of the North Central Regional Office of the Bureau of Prisons found, pursuant to Section 3569, that petitioner had sufficient funds and other assets to satisfy the committed fine. The Regional Director further found that payment of the fine would not jeopardize petitioner's ability to support either himself or his family. The Regional Director accordingly ordered that petitioner not be released until the fine was satisfied. Pet. App. A5; United States' Further Supplemental Report Pursuant to Oral Argument, Addendum A. The court of appeals affirmed (Pet. App. A1-A6). The court agreed with petitioner that the Constitution forbids the incarceration of a person solely because of indigency. However, the court questioned whether "a Parole Commission determination to suspend a discretionary parole date while administrative proceedings to determine indigency are held amount(s) to holding a person in prison because of indigency, at least where administrative proceedings are timely" (Pet. App. A4). The court declined to address that issue, however, because the record demonstrated that petitioner "is not indigent, in the constitutional sense, as measured by any plausible standard" (Pet. App. A5). The court found that petitioner had made no plausible showing that he could not, "consistent with a reasonable need to support himself and his family, use the house to obtain the necessary money" (ibid.). The court concluded (ibid.): "We can find nothing in the Constitution that would forbid holding a person with substantial equity in a $200,000 house in prison past his parole release date, until he pays the fine." ARGUMENT Petitioner claims (Pet. 7-12) that he was deprived of his equal protection rights when he was confined in prison beyond his presumptive release dates while administrative proceedings were conducted to determine his indigency. Discharge of an indigent prisoner sentenced to a "committed fine" /2/ is governed by 18 U.S.C. 3569. That statute provides that a convict claiming an inability to pay a committed fine may apply to the nearest United States magistrate for a hearing to determine his indigency. If the magistrate determines that the convict is unable to pay the fine and does not have any non-exempt property exceeding $20 in value, the magistrate is required to discharge the convict upon execution of a "pauper's oath." If the magistrate determines that the prisoner has non-exempt property exceeding $20, Section 3569 and its implementing regulations (see 28 C.F.R. 0.96(i), 0.97, 571.53-571.56) direct the Regional Director of the Bureau of Prisons to determine if the prisoner needs to retain all or part of such excess property for his support or that of his family. In the event the Regional Director determines that all of the prisoner's non-exempt property exceeding $20 is reasonably necessary for his or his family's support, he is required to discharge the prisoner. Nothing on the face of this statute or in the manner in which it was applied to petitioner renders it unconstitutional. It is established, of course, that a prisoner may not be incarcerated solely because of his inability to pay a fine. See Bearden v. Georgia, 461 U.S. 660 (1983) (State cannot revoke probation for failure to pay a fine and make restitution, in absence of finding that defendant's failure to pay was his fault or that alternative punishment was inadequate); Tate v. Short, 401 U.S. 395 (1971) (State cannot convert a fine into a jail term solely because defendant is indigent); Williams v. Illinois, 399 U.S. 235 (1970) (State cannot impose prison sentence beyond statutory maximum solely because defendant is too poor to pay fine). The record plainly establishes, however, that petitioner is not indigent: based on evidence of the value of his house, the magistrate found that petitioner has more than $20, and a Bureau of Prisons Regional Director found that payment of the fine would not jeopardize petitioner's ability to support either himself or his family. Accordingly, at no time was petitioner impermissibly held in prison based solely on an inability to pay the fine. /3/ Relying on United States v. Estrada de Castillo, 549 F.2d 583, 584 (9th Cir. 1976), and United States v. Mack, 655 F.2d 843, 846-847 (8th Cir. 1981), petitioner nonetheless argues (Pet. 10-11) that Section 3569 is unconstitutional because it fails to require that the final determination of indigency be made prior to a prisoner's scheduled release date. As an initial matter, given the ultimate finding that petitioner is not indigent, it is of no moment that the Regional Director made his determination of non-indigency only after the Bureau of Prisons revoked petitioner's presumptive release date. Moreover, Estrada de Castillo and Mack addressed an earlier version of 18 U.S.C. 3569, which required a defendant to wait 30 days beyond his normal release date before applying for discharge of his committed fine on the basis of indigency. /4/ The amended version of Section 3569 that governs the instant case, however, imposes no such requirement. Further, Bureau of Prison regulations currently provide that an inmate with a committed fine is to be apprised of his right to apply for an indigency hearing 75 days prior to the inmate's pending release date. /5/ Thus, unlike the earlier version of Section 3569, the current statute allows a prisoner to seek an indigency hearing prior to his presumptive release date, and the regulations contemplate that the indigency determination will be completed in advance of that date. Here, petitioner's presumptive release date was not revoked until after the magistrate determined that petitioner was not indigent under 18 U.S.C. 3569. To be sure, the Regional Director's determination that petitioner was not indigent did not occur until after petitioner's release date had been revoked. However, as the court of appeals observed (Pet. App. A4), it is highly questionable whether "a Parole Commission determination to suspend a discretionary parole date while administrative proceedings to determine indigency are held amount(s) to holding a person in prison because of indigency." /6/ In any event, the issue is of little continuing importance. The Sentencing Reform Act of 1984, Chapter II of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987, effectively abolished "stand committed" fines. Implementation of a sentence of fine is now governed by 18 U.S.C. 3614, which provides that a defendant can be imprisoned for failure to pay a fine only after the court determines that the defendant has willfully refused to pay the fine or has failed to make bona fide efforts to pay the fine. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney DECEMBER 1990 /1/ Section 3569 provides in pertinent part: When a poor convict, sentenced for violation of any law of the United States * * * to be imprisoned and pay a fine * * * has been confined in prison, solely for the nonpayment of such fine, * * * such convict may make application in writing to the nearest United States magistrate in the district where he is imprisoned setting forth his inability to pay such fine, * * * and after notice to the district attorney of the United States, who may appear, offer evidence, and be heard, the magistrate shall proceed to hear and determine the matter. If on examination it shall appear to him that such convict is unable to pay such fine, * * * and that he has not any property exceeding $20 in value, except such as is by law exempt from being taken on execution for debt, the magistrate (shall discharge him after administering an oath of indigency). In case the convict is found by the magistrate to possess property valued at an amount in excess of said exemption, nevertheless, if the Attorney General finds that the retention by such convict of all such property is reasonably necessary for his support or that of his family, such convict shall be released without further imprisonment solely for the nonpayment of such fine * * *; or if he finds that the retention by such convict of any part of such property is reasonably necessary for his support or that of his family, such convict shall be released without further imprisonment solely for nonpayment of such fine * * * upon payment on account of his fine * * * of that portion of his property in excess of the amount found to be reasonably necessary for his support or that of his family. Section 3569 was repealed as of November 1, 1987, but continues to apply to offenses committed before that date. See Pub. L. No. 98-473, Title II, Sections 235, 238(h), 98 Stat. 2031, 2039 (1984), as amended by Pub. L. No. 99-217, Section 3, 99 Stat. 1728 (1985). /2/ A "committed fine" is "a monetary penalty imposed with a condition of imprisonment until the fine is paid." 28 C.F.R. 571.51(1). /3/ Petitioner argues (Pet. 4 & n.2) that the Bureau of Prisons impermissibly canceled his earlier presumptive release date of June 23, 1989, solely for his failure to pay the committed fine. In fact, however, the June 23 release date was revoked for failure of petitioner to obtain an approved release plan. As petitioner notes (Pet. 4 & n. 2), release on parole is contingent upon establishing a suitable release plan. 28 C.F.R. 14(b), 2.28(e), 2.33(a). One factor that is considered as an element in the prisoner's release plan is the availability of legitimate employment. 28 C.F.R. 2.33. Petitioner claims (Pet. 4 & n.2) that he had arranged for a job upon his release from prison at the Correctional Alternative Center in Lawrence, Massachusetts. The record reflects, however, that petitioner had failed to obtain employment at the time the Bureau of Prisons postponed his release date and that the Bureau of Prisons recited petitioner's failure to obtain an approved release plan -- not his failure to have undergone an indigency hearing under Section 3569 -- as the reason for postponing his presumptive release date. Gov't C.A. Br. 3 n.2. ##FN4 /4/ The earlier version of Section 3569 provided in pertinent part: (a) When a poor convict, sentenced * * * to be imprisoned and pay a fine * * * has been confined in prison thirty days, solely for the nonpayment of such fine * * *, such convict may make application in writing to the nearest United States magistrate (for an indigency hearing.) 18 U.S.C. 3569 (1982) (emphasis added). The words "thirty days" were deleted by Pub. L. No. 98-596, Section 3(1)(B), 98 Stat. 3136 (1984). /5/ 28 C.F.R. 571.52(c) provides: Staff shall interview an inmate with an unpaid committed fine at least 75 days prior to the inmate's pending release date. Staff shall explain to the inmate that to secure release without paying the committed fine in full, the inmate must make an application, on the appropriate form, to * * * the U.S. Magistrate for a determination on whether the inmate is considered indigent under 18 U.S.C. 3569. /6/ Petitioner further argues (Pet. 9 n.4) that "(t)he $20 threshold in 18 U.S.C. 3569 is itself scarcely a constitutionally sufficient indicator of indigency to warrant continued confinement." However, as the court of appeals properly observed (Pet. App. A3), Section 3569 directs the Attorney General to release him or to reduce his fine, even if he has property worth more than $20, to the extent that any additional property "is reasonably necessary for his support or that of his family."