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."