U.S. v. Currier

• Decision Date: 15 September 1987
• Docket Number: No. 86-2131,86-2131
• Citation: 836 F.2d 11
• Parties: 24 Fed. R. Evid. Serv. 630 UNITED STATES of America, Appellee, v. Raymond Leon CURRIER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 11

836 F.2d 11

24 Fed. R. Evid. Serv. 630

UNITED STATES of America, Appellee, v. Raymond Leon CURRIER, Defendant, Appellant.

No. 86-2131.

United States Court of Appeals First Circuit.

Heard Sept. 15, 1987.

Decided Dec. 10, 1987.

Murrough H. O'Brien, Portland, Me., for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Paula D. Silsby, Asst. U.S. Atty., Portland, Me., were on brief, for appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal from a conviction after a jury trial in the United States District Court for the District of Maine for distribution of valium, a schedule IV controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). Appellant alleges two grounds for overturning the conviction. First, he asserts that the court erred in rejecting his claim that the indictment should be dismissed under the Interstate Agreement on Detainers Act, 18 App. U.S.C. Sec. 1. Second, he argues that the court erred, under Federal Rule of Evidence 403, by admitting a tape recording that was unfairly prejudicial. We affirm the conviction.

Facts

On May 1, 1986, the district court unsealed an indictment in two counts against the defendant. Count I charged possession of a firearm by a convicted felon, in violation of 18 App.U.S.C. Sec. 1202(a)(1); and Count II charged knowing and intentional distribution of valium, a schedule IV controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). The defendant was in the Cumberland County Jail in Portland, Maine, at the time that the indictment issued, waiting to be sentenced on state charges for which he had been convicted on March 12, 1986. Pursuant to a writ of habeas corpus ad prosequendam (writ) issued by the district court on May 6, the defendant appeared for arraignment on May 9. Because he had no counsel, the court rescheduled arraignment for May 16. The United States Marshal returned the defendant to the Cumberland County Jail on May 9 and handed a document entitled "DETAINER" to a prison official. The document was on a form that described the actions to be taken by the official who received the document and had custody over the prisoner named on it. The document contained the name and address of the sheriff of the Cumberland County Jail, the name and signature of the United States Marshal, and identifying information about the defendant. See Appendix.

On May 16, pursuant to another writ, the defendant appeared again in federal court, where after arraignment, he entered a plea of not guilty. On June 10, the court granted the defendant's motion for relief from prejudicial joinder of Counts I and II, and set separate trial dates for each of the two counts. The trial on Count I began on July 14. The defendant appeared pursuant to a writ issued on July 11 to the warden of the state prison in Thomaston, Maine, where the defendant had been sent on June 18 after being sentenced on the state conviction. On July 17, the jury returned a verdict of guilty on Count I. That same day, when a United States Marshal returned the defendant to the state prison in Thomaston, he gave a document entitled "DETAINER" to a prison official. This document, dated July 17, 1986, was on the same form described above. It contained the name and address of the warden of the state prison in Thomaston, the name and signature of the United States Marshal, and identifying information about the defendant. It also had typed across the top the following information: "Up-Date Info: Found Guilty-All Counts." See Appendix.

The court had the defendant removed from state prison pursuant to a writ on three additional occasions. The first of these writs, issued on September 8, produced defendant for sentencing on Count I; the second, issued on October 20, produced defendant for jury selection for the trial on Count II; and the third, issued on October 23, produced defendant for trial on October 24. The trial on Count II took only one day. The government offered as evidence a tape recording of a conversation that the defendant had with a government agent on January 10, 1986, when the defendant allegedly sold the agent 500 tablets of valium. The jury returned a verdict of guilty.

Seventeen days later, on November 10, the defendant moved to vacate the judgment and dismiss Count II of the indictment for violation of Article IV(e) of the Interstate Agreement on Detainers Act (Agreement). The court denied the motion on November 19 on the ground that the defendant had "waived his opportunity to have this argument considered" by waiting "until the completion of his trial and the rendering of a guilty verdict against him, more than a month after the incident complained of, before raising the issue." The defendant was sentenced on December 12. This appeal followed.

The Interstate Agreement on Detainers Act

The Agreement is a compact among forty-eight states, the District of Columbia, Puerto Rico, the Virgin Islands, and the United States. First drafted in 1956 by the Council of State Governments, it was adopted by Congress in 1970 on behalf of the United States and the District of Columbia and by the state of Maine in 1971. Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985); United States v. Mauro, 436 U.S. 340, 350-51, 353, 98 S.Ct. 1834, 1842-43, 1843-44, 56 L.Ed.2d 329 (1978); Me.Rev.Stat.Ann. tit. 34, Sec. 1411 (1978 & Supp.1986). Because it is a congressionally sanctioned interstate compact within the compact clause, U.S. Const., art. I, Sec. 10, cl. 3, the Agreement is a federal law subject to federal construction. Carchman, 473 U.S. at 719, 105 S.Ct. at 3403. The purpose of the Agreement is to create a good rehabilitative environment for prisoners serving sentences in one state by facilitating the speedy disposition of charges pending against them in another state. ¹ The Agreement establishes two procedures for disposing of such charges. The first, contained in Article III, mandates that prison authorities notify a prisoner of any detainers placed against him, and inform him of his right under the Agreement to demand a speedy trial on the indictment giving rise to the detainer. Once the prisoner makes such a request, the state issuing the detainer must begin the trial within 180 days. The second procedure, described in Article IV, allows prosecuting officials in the state issuing the detainer to obtain temporary custody of the prisoner upon written request to appropriate authorities in the incarcerating state. The requesting state must bring the prisoner to trial within 120 days of such removal and must not return the prisoner before completing the trial. If a court determines that a requesting state has failed to comply with any of the above conditions, it must dismiss the indictment, information, or complaint with prejudice. ²

Appellant argues that the government violated Article IV(e) of the Agreement by repeatedly taking him into federal custody and returning him to custody of the state of Maine without disposition of the Count II charge pending against him. ³ Specifically, appellant contends that federal officials triggered application of the Agreement when, after issuing detainers against him, they used writs to make a "written request for temporary custody" under Article IV(a). ⁴ The documents relied upon are the two entitled "DETAINER" given to Maine prison authorities on or about May 9, 1986, and on July 17, 1986.

Appellant is correct in asserting that once a detainer is lodged against a prisoner, any subsequent writ issued against that same prisoner is a "written request for temporary custody" under the Agreement. Mauro, 436 U.S. at 361-64, 98 S.Ct. at 1848. Therefore, any one of the five writs used to bring appellant into federal court after the issuance of the first "detainer" on approximately May 9 could arguably have triggered the prohibition of Article IV(e). We find the relief offered under the Agreement inapplicable to appellant's case because neither the May nor the July 17 document brought appellant within the ambit of the Agreement. We do not consider the question of whether appellant has waived his right to invoke the Agreement by not raising the issue until after his conviction on Count II. We are especially reluctant to consider waiver here because the record is not clear as to whether appellant was even aware, until after conviction on Count II, that the July 17 "detainer" had been issued against him. United States v. Lawson, 736 F.2d 835, 838-39 (2d Cir.1984); United States v. Cyphers, 556 F.2d 630, 635 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977). Courts have found waiver in a number of cases, but defendants in those cases either knew that a detainer had been placed against them, United States v. Rossetti, 768 F.2d 12, 19 (1st Cir.1985); United States v. Eaddy, 595 F.2d 341, 342 (6th Cir.1979), or requested movement from one state to another in direct violation of the Agreement, United States v. Odom, 674 F.2d 228, 229-30 (4th Cir.), cert. denied 457 U.S. 1125, 102 S.Ct. 2946, 73 L.Ed.2d 1341 (1982); United States v. Ford, 550 F.2d 732, 742 (2d Cir.1977), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

"A detainer is a formal notification, lodged with the authority under which a prisoner is confined, advising that the prisoner is wanted for prosecution in another jurisdiction." United States v. Kenaan, 557 F.2d 912, 915 (1st Cir.1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2844, 56 L.Ed.2d 784 (1978); see Carchman, 473 U.S. at 719, 105 S.Ct. at 3403; Mauro, 436 U.S. at 358-59, 98 S.Ct. at 1846-47. The congressional committee recommending passage of the Agreement noted that a detainer seriously disadvantages the prisoner against whom it is lodged. Prison officials consider such a prisoner ineligible for desirable work assignments. And the prisoner himself ...