Appeal from the United States District Court for the Eastern District of Pennsylvania.
Gibbons and Garth, Circuit Judges, and Cohen, District Judge. Seitz, Chief Judge, and Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis and Garth, Circuit Judges.
VAN DUSEN, Circuit Judge.
On January 13, 1976, a federal grand jury sitting in the Eastern District of Pennsylvania returned Indictment No. 76-22, charging Louis Thompson in two counts for distribution of a controlled substance (heroin), in violation of 21 U.S.C. § 841.
On April 6, 1976, the district court issued a writ of habeas corpus ad prosequendum directing the United States Marshal and the Warden of the Philadelphia Detention Center to produce the defendant, then being held at the Holmesburg Prison for service of a state criminal sentence of three to twenty-three months,*fn1 for arraignment on April 9, 1976. On that date the defendant was arraigned at the United States Court House, 601 Market Street, Philadelphia, Pennsylvania, and then returned to state custody at the Holmesburg Prison. On May 3, 1976, the defendant appeared before the district court for trial pursuant to a second writ of habeas corpus ad prosequendum.
Prior to trial the defendant filed a motion to dismiss the indictment pursuant to Article IV(e) of the Interstate Agreement on Detainers Act (the Detainer Agreement), 18 U.S.C. App. p. 232 (1977 Supp.). After oral argument, the district court denied the motion on May 3, 1976, ruling that "the Interstate Agreement on Detainers Act is not applicable in a case in which the federal government is trying a prisoner serving a state sentence within the geographical limits of the state in which the federal court is sitting." (A-30).*fn2
On May 5, 1976, after a jury trial, defendant was found guilty on both counts of the indictment. On July 9, 1976, the defendant was sentenced to two years' imprisonment and a consecutive three-year special parole term. This appeal by defendant followed.
This court directed the listing of this appeal for rehearing en banc by order of January 28, 1977.
A summary outline of the Detainer Agreement appears in United States ex rel. Esola v. Groomes, 520 F.2d 830, 833-34 (3d Cir. 1975). The purposes underlying the Interstate Agreement on Detainers are set forth in an opinion filed earlier today in United States v. Sorrell, 562 F.2d 227 (3d Cir.).
Particularly because the appellant was not as available to his counsel in the period between April 9, 1976, when he was produced at the United States Court House, 601 Market Street, and May 3, 1976, when he appeared for trial, as he would have been if the federal authorities had retained custody of him during this period,*fn3 we cannot say that the failure to comply with the Detainer Agreement's purpose of having him tried, with the effective assistance of counsel, promptly after his custody is first transferred from state to federal authorities is so insubstantial that the wording of Article IV(e) of the Detainer Agreement*fn4 should not be applied according to its terms. If Thompson had remained in federal custody on and after April 9, the vehicles of the United States Marshal making regular weekday trips from the Holmesburg Prison to the United States Court House at 601 Market Street could have brought him to a place of easy accessibility to his lawyer, whereas a trip to Holmesburg Prison, which was required for consultation between attorney and client as long as he was in state custody and the lawyer had to go to him and return, would take his lawyer at least one-half a day. Furthermore, we believe the Detainer Agreement should be enforced according to its terms without the district court's being required to judge those terms, including IV(e), in the light of the Detainer Agreement's statutory purposes, as stated in Article I (see Sorrell at pages 4-5 of the slip opinion), every time the prosecutor chooses to ignore its wording. If Congress had wanted the district courts, in their discretion, to apply the clear provisions of Article IV(e) of the Detainer Agreement in the light of the purposes of such Agreement, such wording would have been included in Article IV(e).*fn5
The judgment of the district court will be reversed and the case remanded with directions that the district court dismiss the indictment for the reasons stated above.
WEIS, Circuit Judge, dissenting:
The Interstate Detainers Act is obviously written to cope with problems arising when prisoners confined in one state are charged with crimes in another. Both prosecution and defense may have an interest in securing a speedy trial of outstanding charges. The state may seek to have a trial without the delay attendant on extradition. The prisoner may wish to have a determination of pending charges so that he may seek the advantages of concurrent sentences or earlier parole. Moreover, the prisoner may be denied rehabilitative programs because of interruptions caused by travel and attendance at criminal proceedings in other states.
When the Interstate Detainers Act was proposed by the Council on State Governments as Suggested State Legislation in 1957, state statutes were contemplated. Not until 1970 did the federal government adopt the Act and include itself as a "state." The legislative history is quite brief and demonstrates that Congress did not fully explore the legislation's ramifications as they affected the federal government.
So long as the Act included only states and not the federal government, geographical and sovereignty concepts posed no particular difficulty. But when the federal legislation adopted the text of the state compacts and involved the United States simply by including it within the definition of a "state," serious problems of interpretation arose. As an example, the Act's reference to trial being "commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State," is clear and understandable if the prisoner is being transferred from New Jersey to Pennsylvania. Similarly, a transfer from New Jersey to the District of Columbia is workable under the federal version of the Act. Confusion arises, however, if the prisoner is being transferred from a state institution in Pennsylvania to a federal court in that state. In that instance, the prisoner has been in the United States, the "receiving state", continuously.
To enforce the speedy trial provisions of the Act, therefore, the federal courts must interpret "receiving state" to mean custody of the federal government. See United States v. Ford, 550 F.2d 732 (2d Cir. 1977). Since this interpretation carries out the Act's announced intention to afford a speedy trial, the semantic revision may be justified. If the statute were read literally, however, there could be no enforcement of the one hundred and twenty day limitation because there is no arrival date in a "receiving state."
Similarly in Article V(h), Interstate Agreement on Detainers Act § 2, Art. V(h), 18 U.S.C. App. at 233 (Supp. 1977), the statute provides that responsibility for the prisoner rests with the receiving state from the time "a party State receives custody . . . . until such prisoner is returned to the territory and custody of the sending State . . . ." Where the prisoner is transferred from a federal institution to a state, he has never left the United States. Does United States "territory" mean the confines of a federal institution? If a state prisoner is taken to a federal court located in the same state, when does the prisoner return to the "territory" of the state?
The government in this case has argued, as on other occasions, that Congress contemplated the federal government being affected only as a sending, not a receiving state. That interpretation makes the statute workable and reasonable.*fn1 The government's position, however, has been consistently rejected in the courts reviewing it. See United States v. Mauro, 544 F.2d 588 (2d Cir. 1976), United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977). Article II, 18 U.S.C. App. at 230-231 (Supp. 1977), defines the United States as a "state" without any qualification, and the legislative history furnishes no support for the government's interpretation. It is apparent that in adopting the Interstate Agreement Congress has attempted to fit a square peg into a round hole.
In United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), a panel of this court concluded that the Agreement on Detainers Act is the sole means by which a prisoner may be transferred from another state for trial on state charges. In the case sub judice, that principle is extended to the federal system as well, thus restricting the writ of habeas corpus ad prosequendum.
Congress, I am confident, had no intention to limit federal courts in exercising their power to issue this writ first authorized by the Judiciary Act of 1789. The grant has been continued without interruption in legislation since that time. See Carbo v. United States, 364 U.S. 611, 5 L. Ed. 2d 329, 81 S. Ct. 338 (1961); Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L. Ed. 554 (1807). Not a word in the legislative history of the Interstate Agreement on Detainers Act hints of repealing or limiting the authority to issue the writ or, indeed, even mentions it.*fn2
To read the ambiguous and superficially considered Agreement as constricting the power which has been exercised by the federal courts for almost two hundred years is a questionable solution to a perplexing problem. Recognizing the continuing scope of the writ of habeas corpus ad prosequendum might diminish in some respects the efficacy of the Interstate Detainers Act. That policy would offer federal prosecutors an alternative method of securing the presence of state prisoners for trial and, thus, deprive a state governor of the option to disapprove the request (a doubtful matter at best in the federal-state context); obviate the thirty day delay; and delete the requirement that the prisoner be kept in federal custody from time of original request to termination of trial. But the utilization of habeas corpus ad prosequendum would not defeat the primary aims of the Agreement -- to permit the prisoner and authorities to obtain speedy disposition of outstanding detainers and prevent unnecessary interruptions to rehabilitative programs.
The facts of the two cases under consideration are graphic illustrations of the harm which restricting federal habeas corpus ad prosequendum can cause. In the Sorrell case, the interruption of the prisoner's rehabilitation program at Graterford consisted of the time for travel between Graterford and Philadelphia and a brief appearance in court for arraignment (certainly not a whole day), and the trial which would likely have required no more than a few days. All told, the prisoner's absence from the rehabilitation program would likely have been no more than a total of 7 to 10 days. Under the majority's view, however, Sorrell would have had to remain in federal custody from the date of arraignment till verdict, normally at least a month. That period of confinement would usually be in a facility in Philadelphia which does not offer rehabilitation programs. Thus, the goal of rehabilitation is not aided by the restrictive approach adopted by the majority, but is actually thwarted.
Moreover, the aim of a speedy trial would be hindered, not helped. The Federal Speedy Trial Act limits require that a prisoner be arraigned within ten days after indictment, 18 U.S.C. § 3161, but if his presence at that proceeding can only be obtained by recourse to the Detainers Act, a thirty-day period must elapse before he may be transported to the court. Article IV(a), 18 U.S.C. App. at 232 (Supp. 1977). Thus, there is a direct conflict between the Speedy Trial Act and the Detainers Act which the majority's interpretation does not resolve but, in fact, creates.*fn3
The situation created in the Thompson case is even more bizarre. He was serving a state sentence in the Holmesburg Prison in Philadelphia in April, 1976. On April 9, through the use of habeas corpus ad prosequendum, Thompson was brought to the federal courthouse in the same city for arraignment and was returned on the same day. He was returned to the courthouse on May 3 for trial, and on May 6, a guilty verdict was rendered. That conviction is now set aside as a result of the majority opinion.
Apparently, there was no rehabilitative program at Holmesburg, that institution being used only for short term sentences and pretrial detention.*fn4 Hence, no rehabilitation program was interrupted. The ultimate irony, however, is that the federal government and Philadelphia have contracted for the use of Holmesburg Prison as a detention center for federal prisoners. Thus, had the United States arranged for the technical "paper" transfer of Thompson from state to federal custody -- within the very same institution -- from the arraignment date to the date of sentencing, the conviction would stand.
In United States v. Mauro, supra, the Court of Appeals affirmed dismissals of indictments under the provisions of the Detainers Act. Judge Mansfield dissented on the ground that the writ of habeas corpus ad prosequendum was not a detainer within the meaning of the Act,*fn5 and refused to accept any implied repeal of the statute authorizing habeas corpus ad prosequendum. In United States v. Ford, supra, he wrote the majority opinion, holding that the speedy trial provisions of the Detainers statute applied to the federal government. In United States v. Chico, 558 F.2d 1047 (No. 77-1016, 2d Cir., June 20, 1977), Judge Mansfield, writing for a unanimous panel, distinguished both Ford and Mauro in a fact situation similar to the case sub judice. There, the Court of Appeals for the Second Circuit held that when state prisoners were in the federal court for only the few hours required for arraignment and guilty pleas and were immediately returned to state imprisonment, they were never actually incarcerated by the federal government. That distinction could be utilized in the Thompson and ...