Ridgeway v. U.S., 76-2145

Decision Date13 July 1977
Docket NumberNo. 76-2145,76-2145
Citation558 F.2d 357
PartiesRobert Lee RIDGEWAY, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Ovid C. Lewis, Covington, Ky. (Court-appointed), for defendant-appellant.

Philip M. Van Dam, U.S. Atty., Peter M. Rosen, Detroit, Mich., Dana D. Biehl, Washington, D.C., for plaintiff-appellee.

Before PHILLIPS, Chief Judge and CELEBREZZE and ENGEL, Circuit Judges.

PHILLIPS, Chief Judge.

The principal question raised on this appeal is whether a writ of habeas corpus ad prosequendum is a detainer under the Interstate Agreement on Detainers. We hold that it is not.

Robert Lee Ridgeway was indicted and convicted on one count of conspiracy to import, possess and distribute cocaine. On appeal he raises four grounds for reversal:

(1) That a writ of habeas corpus ad prosequendum is a detainer under the Interstate Agreement on Detainers and that the federal indictment against him should have been dismissed with prejudice when he was not tried within 120 days after his arrival within federal jurisdiction, and when he was returned to his incarceration in a State institution prior to trial on the federal charges;

(2) That an in-court identification was improperly admitted into evidence;

(3) That the evidence was insufficient to support the conviction; and

(4) That he was denied the effective assistance of counsel.

We conclude that all four of these contentions are without merit and affirm the conviction.

I.

On August 8, 1975, Ridgeway was charged under a federal indictment with one count of conspiracy. The count charged appellant and others under the conspiracy provision, 21 U.S.C. § 963, with having conspired to smuggle cocaine knowingly and intentionally into the United States in violation of 21 U.S.C. § 952(a) and under the conspiracy provision 21 U.S.C. § 846, with having conspired to distribute or possess with intent to distribute, cocaine in violation of 21 U.S.C. § 841(a)(1). A second count charged appellant with possession of cocaine with the intent to distribute it in violation of 21 U.S.C. § 841(a)(1).

When the indictment was filed appellant was serving a sentence in a Michigan prison for an unrelated state charge. He was brought to the United States District Court for the Eastern District of Michigan pursuant to a writ of habeas corpus ad prosequendum for his arraignment and plea of not guilty on August 14, 1975. From the arraignment and throughout the proceedings, appellant and the Government agreed that appellant would be placed on personal bond rather than having a detainer filed against him with the State prison authorities. This arrangement was requested by appellant so that he could maintain his trustee status and be eligible for benefits he might not have had if he had been held in a federal facility or had a detainer filed against him while awaiting trial.

He was returned to the Michigan state prison until November 20, 1975, when he was brought back to the district court for trial pursuant to another writ of habeas corpus ad prosequendum. During the trial, appellant, his attorney and the Government agreed that in return for appellant's waiver of a jury trial the Government would drop the substantive possession charge against him. Appellant's counsel then requested a continuance so that he could obtain certain scientific evidence. Appellant was returned to the Michigan State prison while the trial of his co-defendants continued. He was brought before the court for trial pursuant to yet another writ of habeas corpus ad prosequendum on March 5, 1976.

Appellant was indicted as a member of the Robert Wind cocaine smuggling conspiracy, alleged to have involved shipments of cocaine from South America in large quantities for distribution in the Detroit area for a period of almost two years from mid-1973 to mid-1975. Seventeen persons were named as co-conspirators, fifteen of whom were indicted. The district court sentenced appellant to twelve years imprisonment running consecutively with his State sentence. In addition, the court imposed a special parole term of ten years. This appeal was then filed.

II.

First we consider the question of whether a writ of habeas corpus ad prosequendum is a detainer under the Interstate Agreement on Detainers (Agreement).

The Agreement was first promulgated by the Council of State Governments in 1957. 1 It was adopted by Congress in 1970, and 46 states, the District of Columbia and the United States are signatories. The Agreement was designed to facilitate the disposition of charges in one jurisdiction when the accused is incarcerated in another jurisdiction. Some of the reasons for the agreement are set forth in Article I:

The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

The Agreement is discussed in United States v. Ford, 550 F.2d 732 (2d Cir. 1977), petition for cert. filed, 46 U.S.L.W. 3056 (U.S. Aug. 16, 1977, No. 77-52).

The Agreement is applicable to situations in which one participating jurisdiction has lodged a detainer for a prisoner in another participating jurisdiction where the prisoner is incarcerated. Article III provides that a prisoner can demand to be brought to trial within 180 days on any untried indictment, information or complaint which is the basis for a detainer lodged against him. If the prisoner is not brought to trial within the 180 day limit, the appropriate court of the jurisdiction in which the outstanding charge is pending is required to dismiss the charge with prejudice and the detainer thereupon ceases to have effect. The time limit can be extended for good cause in open court, if either the prisoner or his counsel are present. Thus, Article III provides a prisoner with a procedure for bringing about a prompt disposition of detainers placed against him.

The Agreement also provides a method under Article IV whereby prosecutors can secure prisoners serving sentences in other jurisdictions for a prompt trial. Unless a request is disapproved by the Governor of the State having custody (or in an appropriate case by the Attorney General of the United States) within 30 days, temporary custody of the prisoner is given to the requesting prosecutor. Trial must commence within 120 days of the arrival of the prisoner in the jurisdiction requesting him, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Article IV(e) mandates that:

If a trial is not had on any indictment, information, or complaint . . . prior to the prisoner's being returned to the original place of imprisonment . . . the court shall enter an order dismissing the (indictment, information or complaint) with prejudice.

In addressing the issue of whether a writ of habeas corpus ad prosequendum is a detainer under the Agreement, we note that there is a split of authority among the other Circuits. The Second Circuit in United States v. Mauro, 544 F.2d 588 (2d Cir. 1976) (Mansfield, J., dissenting) and the Third Circuit in United States ex rel. Esola v. Groomes, 520 F.2d 830 (3rd Cir. 1975), held that the writ is a detainer under the Agreement, while the Fifth Circuit has recently reached the opposite conclusion in United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977).

Dictum in United States v. Roberts, 548 F.2d 665, 670 (6th Cir. 1977) indicated that this court might find a writ of habeas corpus ad prosequendum to be a detainer under the Agreement. However, in view of this court's ultimate conclusion in Roberts that the Agreement did not apply to a prisoner in Roberts' situation, the dictum is not binding upon this court when we are faced squarely with the issue.

We have reviewed the legislative history of the Agreement 2 and find no conclusive answer to the question before us. The Senate Report 3 defined a detainer as "a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction" 4 Nowhere in the legislative history do we find any express reference to a writ of habeas corpus ad prosequendum.

Since the Congressional history does not answer our question, we look to the origins of the Agreement. 5 A detainer is simply a notice to prison authorities that charges are pending against an inmate elsewhere, requesting the custodian to notify the sender before releasing the inmate. The detainer itself does nothing to affect the prosecution of an inmate. Filing a detainer is an informal process which does not bind the authorities to act. 6 Generally, a penal institution will recognize a detainer lodged by any person who has authority to take an inmate into custody. In most instances the prosecutor charged with the task of bringing the case to disposition files the detainer, but, if the case has not yet reached the stage of a formal indictment or information, the detainer may be filed by the police. 7

Detainers have been filed with little consideration of whether the inmate will be brought to trial. In some cases they may be withdrawn as a matter of prosecutorial discretion. Some...

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