U.S. v. Cogdell

• Citation: 585 F.2d 1130,190 U.S.App.D.C. 185
• Decision Date: 19 October 1978
• Docket Number: No. 77-1602,77-1602
• Parties: UNITED STATES of America v. James T. COGDELL, a/k/a James T. Cogwell, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1130

585 F.2d 1130

190 U.S.App.D.C. 185

UNITED STATES of America v. James T. COGDELL, a/k/a James T. Cogwell, Appellant.

No. 77-1602.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 5, 1977.

Decided July 12, 1978.

As Amended July 12, 1978.

Rehearing Denied Oct. 19, 1978.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 76-735).

Dorothy Sellers, Washington, D. C. (appointed by this court), for appellant.

David G. Hetzel, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Steven R. Schaars, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. James F. Hibey and William D. Pease, Asst. U. S. Attys., Washington, D. C., also entered appearances for appellee.

Before WRIGHT, Chief Judge, and McGOWAN and WILKEY, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WILKEY.

J. SKELLY WRIGHT, Chief Judge.

Appellant James Cogdell was convicted by a jury of violating 18 U.S.C. § 751(a) (1976) by escaping from the "Northeast One" section of the new D.C. Jail on August 26, 1976, the same date as the escape of the appellants in United States v. Bailey, 190 U.S.App.D.C. ---, 585 F.2d 1087 (D.C.Cir. 1978), a case we also decide today. Cogdell was originally indicted along with those other appellants, but his case was severed and tried at a later date to accommodate his attorney's schedule. Nevertheless, the trial judge relied heavily on the rulings he had made previously in the Bailey case when ruling on appellant's motions and developing the jury instructions. ¹ For the reasons outlined in Bailey we hold that Cogdell's conviction must be reversed and his case remanded for a new trial because of errors in the trial court's instructions and the exclusion of relevant evidence on the "escape" element of the offense. ²

Cogdell's case also raises unique issues that require additional consideration. Unlike any of the appellants in Bailey, Cogdell had been brought to the D.C. Jail pursuant to a writ of Habeas corpus ad prosequendum from the Fairfax County Jail in Virginia where he had been committed following a state conviction but before sentencing. ³ Cogdell's indictment reflected his special situation; he was charged with escaping from "custody under and by virtue of a commitment issued under the laws of the United States by a Judge of the Superior Court of the District of Columbia following his arrest on a charge of a felony." ⁴ On the basis of these factors peculiar to his case, Cogdell argues that the charge on which he was convicted must be dismissed. We find no error that requires dismissal and therefore remand this case, like those of the appellants in Bailey, for further proceedings.

I

Appellant first contends that the indictment does not state an offense under 18 U.S.C. § 751(a) (1976) because the writ of Habeas corpus ad prosequendum issued by the Superior Court was not issued under the laws of the United States. Cogdell claims that the writ was issued under 16 D.C.Code § 1901 (1973), which he argues is not a law of the United States. See Key v. Doyle, 434 U.S. 59, 98 S.Ct. 280, 54 L.Ed.2d 238 (1977). The Government does not contend that Section 1901 is a law of the United States, but responds that the writ in this case was issued under the All Writs Act, 28 U.S.C. § 1652 (1970), which is a law of the United States. The writ does not recite the statutory authority under which it was issued, ⁵ but we find the Government's position more convincing than appellant's.

Section 1901 is limited by its terms to writs of Habeas corpus ad subjiciendum writs challenging the grounds for imprisonment of persons "committed, detained, confined, or restrained from (their) lawful liberty within the District." ⁶ The authority to issue writs of Habeas corpus ad prosequendum cannot be read into the language of the section without severe strain. On the other hand, the literal terms of Section 1652 authorize the Superior Court, as a court "established by Act of Congress," to issue the writ of Habeas corpus ad prosequendum as one "in aid of (its) respective jurisdiction( ) and agreeable to the usages and principles of law." 28 U.S.C. § 1651 (1970). See Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 417 F.2d 728 (1969). ⁷ Although Congress has recently passed legislation designed to treat the D.C. court system more like the court system of a state, ⁸ it surely did not intend to remove the local courts' power to issue writs of Habeas corpus ad prosequendum. Since Congress has not provided for this authority in a "local" statute, we conclude that the Government was justified in claiming that the authority still exists under the All Writs Act and that the writ issued in this case was therefore issued under the laws of the United States. ⁹

II

Appellant also argues that the indictment must be dismissed because of a fatal variance between the offense with which he was charged and that for which he was tried. We see no consequential variance between the indictment and the evidence. As noted above, appellant was indicted for escaping from "custody under and by virtue of a committment (Sic ) issued under the laws of the United States by a Judge of the Superior Court of the District of Columbia following his arrest on a charge of a felony." The prosecution's documentary and testimonial evidence indicated that appellant had been brought from the Fairfax County Jail on August 17, 1976 pursuant to a writ of Habeas corpus ad prosequendum to appear for a status call in the Superior Court, where he had been indicted on charges of forgery, uttering, unauthorized use of a vehicle, and carrying a pistol without a license; that he had been confined in the "Northeast One" section of the new D.C. Jail; that he had left the jail without authorization on August 26; and that he had been arrested by the FBI on September 28. ¹⁰

While we see no significant variance between the indictment and the evidence, we do recognize that there were possibly prejudicial variations between the indictment and the trial court's instructions. Because of the similarity between appellant's case and United States v. Bailey, the trial judge developed the instructions for this case by going through the instructions he had given in the Bailey case and making the changes he thought necessary in consultation with the prosecutor and defense counsel. ¹¹ The instructions resulting from this procedure failed to take sufficient account of the differences between the indictment in Bailey and that in this case. In particular, much language referring to the "custody of the Attorney General" was left in the instructions, in spite of the irrelevance of such language to the charge in Cogdell's indictment. ¹² In its context, this superfluous language may not have been prejudicial to appellant, ¹³ and appellant's counsel did not object to the instructions on this ground at trial. Nevertheless, this language was a potential source of confusion to the jury, and we assume that the trial court will not give the same instruction in the new trial.

III

Appellant's final argument is based on the Interstate Agreement on Detainers (IAD), to which the District of Columbia and the United States became signatories in 1970. 24 D.C.Code § 701 (1973); Pub.L. 91-538, 84 Stat. 1397 (1970). The IAD is designed to establish a uniform process for transporting prisoners for trial from a jurisdiction in which they are serving a sentence to a jurisdiction in which they have been charged with an offense. The primary purpose of the IAD is to eliminate the abuses, such as delay in bringing prisoners to trial and interference with rehabilitation programs, which characterized the use of "detainers" previous to the adoption of the Agreement. ¹⁴ The provisions of the IAD relevant to this case allow "(t)he appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending * * * to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available * * * upon presentation of a written request for temporary custody * * *." Article IV(a). The IAD also provides that once a prisoner has been transferred pursuant to its provisions, "(i)f trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment * * *, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." Article IV(e).

Appellant urges us to treat a writ of Habeas corpus ad prosequendum issued by the Superior Court as a "detainer" and to find that the provisions of the IAD apply to his case. He points out that before the writ involved in this case was issued he had already been brought before the Superior Court for arraignment and returned to the Fairfax County Jail. If the IAD applies, he argues (1) that his return to Virginia prior to trial rendered the charges against him in the Superior Court of no effect, (2) that the writ bringing him before the Superior Court on August 17 was therefore a "nullity," and (3) that the writ thus cannot serve as a basis for a conviction of escape under 18 U.S.C. § 751(a).

Appellant's arguments based on the IAD are no longer tenable following the Supreme Court's recent decision in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). The Court in Mauro held that a writ of Habeas corpus ad prosequendum issued pursuant to 28 U.S.C. § 2241 is not a "detainer" under the IAD. Although we hold that the writ in this case was issued under the All Writs Act, 28 U.S.C. § 1651, the Court's reasoning that the IAD was not intended to apply to writs of Habeas corpus ad prosequendum because such writs do not cause...