U.S. v. Muhammad, 90-5701

Citation948 F.2d 1449
Decision Date30 October 1991
Docket NumberNo. 90-5701,90-5701
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Abdul-Aziz Rashid MUHAMMAD, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

James E. Arehart, Asst. U.S. Atty. (briefed), Lexington, Ky., Frederick A. Stine, V, Asst. U.S. Atty. (argued), Covington, Ky., for plaintiff-appellee.

Deanna L. Dennison (argued and briefed), Covington, Ky., for defendant-appellant.

Before KENNEDY and JONES, Circuit Judges, and HARVEY, Senior District Judge. *

NATHANIEL R. JONES, Circuit Judge.

Defendant Abdul-Aziz Rashid Muhammad (a.k.a. William Anthony Brown) appeals his conviction and sentence for armed bank robbery, use of a firearm during the commission of a felony, possession of a firearm and conspiracy. For the reasons that follow, we affirm.

I.

At about 3:00 p.m. on June 23, 1989, Muhammad and his co-defendant Stacey Walton, entered the Florence Deposit Bank wearing gloves and ski masks and robbed the bank at gun point. Walton acted as a look-out while Muhammad attended to the cash. Armed with a semi-automatic weapon, Muhammad told the vice-president of the bank to get the money or he would kill him and take hostages. During this exchange Muhammad fired a shot at a customer who was also in the vice-president's office, attempting to kill him. Muhammad later gained access to the vault and robbed the teller stations. He left the bank with $227,582.02. Muhammad and Walton then proceeded to a stolen van to make their get-away.

Meanwhile, as the robbery was taking place, one of the bank employees activated an alarm and the police arrived on the scene. As the van pulled away, Muhammad fired shots at the police officers. The police returned fire. Eventually, the van crashed into a wall and Muhammad, Walton and a third person jumped out of the van, fired at the officers and took off running. Walton, who had been shot, was apprehended shortly thereafter at a nearby shop. The unknown third person was detained by an Officer Damean Stanton of the Florence, Kentucky police department. While Stanton held the suspect at gunpoint, Muhammad came up behind him and stuck a semi-automatic weapon in the officer's back. Fearing that he would be shot, Stanton turned quickly and knocked the gun from Muhammad's hands. A struggle ensued in which Muhammad tried to get control of Stanton's gun. Two shots were fired during the struggle and eventually Stanton was assisted by Officer Horton. The officers managed to subdue and arrest Muhammad, but the third suspect escaped.

During the struggle with Muhammad, Officer Stanton was repeatedly kicked and beaten in the face and on his body. He sustained a number of abrasions on his arms and legs, and was taken to a nearby hospital after the arrest for some x-rays. The x-rays revealed no trauma to his shoulder, which apparently had been hyper-extended during the fight. However, Stanton testified that he was sore and stiff for two weeks afterward with pain in his knees and elbow.

After his arrest, and being advised of his Miranda rights, Muhammad admitted to the robbery, to shooting outside the bank, and to wrestling with Officer Stanton over his gun. An Officer Snow also testified that shortly after Muhammad's arrest when Muhammad was asked why he did not kill Officer Stanton, he replied that "he did not want to draw attention to where he was at the time" and that "if he had to do it over again, he would have shot him." J.App. at 221.

Muhammad was taken into custody by the Florence Police Department for robbery and attempted murder and was so charged in the Boone District Court on June 24, 1989. Muhammad was held at the Boone County Jail, which is authorized to house federal prisoners. On June 30, a Federal Complaint and Arrest Warrant was executed on Muhammad charging him with armed bank robbery and using a gun in the commission of a robbery. On the same day, Muhammad had his initial hearing and was ordered detained pending a bail and detention hearing. The hearing was set for July 6, 1989. On July 3, pursuant to a state court-ordered writ, local authorities took Muhammad from Boone County Jail to a preliminary hearing in state court on the pending state charges. At that time, the state proceedings were stayed pending the disposition of the federal proceedings. After a few hours, Muhammad was returned to the Boone County Jail.

On July 6, 1989, Muhammad had his preliminary hearing in federal court. At that time, apparently in light of the state writ, the United States advised the court that it understood that Muhammad was still in state custody and moved the court to issue a writ to have him produced. The court ordered the writ to issue, and Muhammad was ordered held without bail.

On July 12, the government, in a four-count indictment, charged Muhammad with conspiracy to commit armed bank robbery and use of firearms during the commission of a felony in violation of 18 U.S.C. § 371; armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d) and 18 U.S.C. § 2(a) & (b); armed bank robbery by knowingly using and carrying firearms in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2(a) & (b); and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2(a) & (b). He was arraigned on July 21, and trial was set for September 18. On September 11, the case was continued on motion from co-defendant Walton until October 30.

On October 10, 1989, for the first time, Muhammad filed a motion to dismiss for lack of jurisdiction. The basis for this motion was that he had been illegally taken from "federal custody" to state court without the appropriate writ. His contention was that in permitting Kentucky state officials to take Muhammad from federal custody, the United States lost jurisdiction over Muhammad. The motion was heard and overruled on October 20. Muhammad renewed his motion on the first day of trial claiming this time that after the state took Muhammad for arraignment, the United States never got a writ to "secure him back into federal custody." J.App. at 105. The district court once again overruled the motion and proceeded with trial.

Muhammad was convicted on all counts. A presentence report was prepared, various objections were made by the defendant, and a hearing was held on the objections. The Magistrate issued his report and recommendation overruling the objections. A sentencing hearing was held on April 26, 1990, at which the district court adopted the report of the magistrate. No further objections were made at that time. Muhammad was sentenced to 327 months imprisonment plus a consecutive 20-year mandatory sentence to run consecutively, a special assessment of $200.00 and a 5-year term of supervised release. This timely appeal followed.

II.

Muhammad first contends that the district court erred in failing to dismiss the indictment against him for lack of jurisdiction because a writ of habeas corpus ad prosequendum was never executed by the United States. When Muhammad first made his motion to dismiss on October 10, 1989, he alleged that he was a federal prisoner who was removed from federal custody by the state of Kentucky without the appropriate writ. He claimed that under the Interstate Agreement on Detainer Act ("IADA"), 18 U.S.C.App., the United States lost jurisdiction by releasing him to state custody. Later, on the first day of trial, Muhammad altered his contention, claiming that the problem was that since a federal writ of habeas corpus ad prosequendum was ordered by the federal court but never executed, the court lacked jurisdiction over his person. His claim at this point was that the federal government had never had jurisdiction over his person because it had never filed a writ of habeas corpus ad prosequendum for his release from state custody. In his brief before this court, Muhammad adheres to his second position, which summarily stated, is that the United States never had jurisdiction over him because he remained in state custody absent a writ for his release into federal custody.

As a preliminary matter, Muhammad's reliance on the IADA is misplaced. It is clearly established that "the Interstate Agreement on Detainers does not apply to a person who is imprisoned awaiting disposition of pending charges and who has not been sentenced to a term of imprisonment." United States v. Roberts, 548 F.2d 665, 671 (6th Cir.), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977). In the instant case, the state charges against Muhammad were stayed pending the outcome of the federal proceedings, and he had not been sentenced by either sovereign. Therefore, the IADA does not apply.

The question that remains, however, is whether the fact that a writ of habeas corpus ad prosequendum was ordered but never issued by the district court deprived the court of jurisdiction. Muhammad was first arrested by state authorities and charged under state law on the 23 and 24 of June, 1989. He therefore was in state custody. On June 30, 1989, a federal complaint was executed, and Muhammad was ordered detained pending a detention hearing. At the detention hearing the United States moved the court for the issuance of a writ of habeas corpus ad prosequendum, apparently believing that Muhammad was still in state custody. Although the court ordered that the writ be issued, that order was never complied with, and the writ was never formally issued. Thus, the narrow question presented is whether the district court's failure to issue the physical writ requires dismissal of the indictment for lack of federal jurisdiction.

We have found no case which directly addresses the narrow question presented here. Muhammad cites Rose v. United States, 365 F.Supp. 841 (N.D.Ill.1973) for the proposition that issuing a writ of habeas corpus ad prosequendum is the "correct way" of bringing a prisoner to trial from the custody of another jurisdiction. Further, in Carbo v....

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