U.S. v. Dawn

• Citation: 900 F.2d 1132
• Decision Date: 25 June 1990
• Docket Number: No. 89-2328,89-2328
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles DAWN, also known as Charles Cole, also known as Charles Webb, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1132

900 F.2d 1132

UNITED STATES of America, Plaintiff-Appellee, v. Charles DAWN, also known as Charles Cole, also known as Charles Webb, Defendant-Appellant.

No. 89-2328.

United States Court of Appeals Seventh Circuit.

Argued March 1, 1990.

Decided April 26, 1990.

Rehearing Denied June 25, 1990.

Grant C. Johnson, Asst. U.S. Atty., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Samuel J. Cahnman, Chicago, Ill., Paul W. Schwarzenbart, Lee, Johnson, Kilkelly & Nichol, Madison, Wis., for defendant-appellant.

Before CUDAHY, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

While awaiting trial on state charges in a Utah jail, Charles Dawn was notified by detainer that charges were pending against him in Wisconsin for escaping from federal custody several years earlier, in violation of 18 U.S.C. Sec. 751. Prior to trial in Wisconsin, he filed a motion to dismiss the indictment on the grounds that his rights under the Speedy Trial Act and the Interstate Agreement on Detainers had been violated. The trial court denied his motion, and he was subsequently convicted and sentenced to 54 months of incarceration. Dawn appeals the denial of his pre-trial motion as well as the sufficiency of the evidence to support his conviction. We affirm.

I.

Defendant Charles Dawn was being held on felony charges in the Columbia County Jail in Wisconsin in September of 1982 when he seized an opportunity and escaped. Soon thereafter he was indicted on escape charges and an arrest warrant was issued. Law enforcement authorities were unable to apprehend him and he successfully led the life of a fugitive from justice. Freedom, however, proved to be an elusive commodity for Dawn as he was arrested in Salt Lake City, Utah some five years later on charges of aggravated robbery. As there was an outstanding warrant for his arrest on the escape charge, the United States Marshal for the District of Utah filed a detainer with the Salt Lake City authorities. The detainer served as formal notice of the pendency of federal charges for escape against Dawn and requested notice of release from custody so that federal authorities could assume custody if necessary. After learning of the detainer and the charges against him pending in the Western District of Wisconsin, Dawn telephoned the United States Attorney's Office to learn more about the charges. He spoke to Assistant United States Attorney Grant Johnson who complied with his request for information.

Dawn was subsequently convicted on the state charges in Utah and sentenced to confinement in the Utah State Prison. On July 18, 1988, he telephoned Johnson and advised him that he had been sentenced on the Utah charges and requested that he be brought to trial on the charges pending in Wisconsin. Dawn also asked Johnson whether there was anything else that he needed to do to invoke his speedy trial rights; Johnson mistakenly informed him that he had done all that was required. Relying on this advice, Dawn made no further actions or demands for a speedy trial until September 30, 1988, when he was presented with a detainer issued by the United States Marshal in Utah which had a formal speedy trial notification attached. Dawn immediately executed the speedy trial demand form.

Johnson applied for and received a writ of habeas corpus ad prosequendum which required the defendant's presence before the United States District Court for the Western District of Wisconsin to answer for the escape charges. Dawn was taken into the custody of the United States Marshal's Service in Utah and returned to Wisconsin. Ironically, after keeping the authorities at bay for five years while he remained a fugitive, Dawn filed a pre-trial motion to dismiss the indictment on the grounds that the government did not act quickly enough in bringing him to trial on the escape charges. Specifically, he claimed that his rights under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq., ("the Act"), and the Interstate Agreement on Detainers Act, 18 U.S.C.App. III, Sec. 2 (the "Agreement"), had been violated. An evidentiary hearing was held before the trial court and a United States Magistrate subsequently recommended that the defendant's motion be dismissed. The trial court adopted the magistrate's findings and recommendations and held that, with regard to the Speedy Trial Act claim, Dawn's demand by telephone to Assistant United States Attorney Johnson for a speedy trial was sufficient to invoke Sec. 3161(j) of the Speedy Trial Act, which requires the government, once it knows a person charged with an offense is serving a term of imprisonment in a penal institution, to "promptly" act to have that person brought back to the jurisdiction for trial. The trial court found, however, that it need not determine whether in fact the government had acted promptly in this case because the relief sought by the defendant, dismissal of the indictment, was not available for violations of Sec. 3161(j). The trial court also found that Dawn's claim under the Agreement failed because his telephone call to Johnson in which he invoked his speedy trial rights failed to satisfy the technical requirements of the Agreement, including the condition that the demand be in writing and that it be transferred through a custodial official of the facility. The trial court noted that even if the request by phone was sufficient to invoke Dawn's rights under the Agreement, his claim failed because his motion to dismiss served to toll the 180-day detainer period, and excluding the time spent on the motion, only 164 days had passed.

Dawn was then tried and convicted on the escape charge. The court entered judgment on the jury's verdict and sentenced him to a term of 54 months incarceration to run concurrently to a term imposed in an earlier state prosecution. The trial court also determined that the sentence should run consecutively to the sentence that the defendant was presently serving in Utah. Dawn appeals the denial of his motion to dismiss the indictment claiming that the government's delay in bringing him to trial on the escape charge violated his rights under both the Act and the Agreement. He also claims that the government failed to prove an element of the offense of escape under 18 U.S.C. Sec. 751--that the defendant was confined "by direction of the Attorney General."

II.

We begin with Dawn's claim that his rights were violated under the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. Dawn's sole contention is that the district court erred in holding that dismissal of the indictment is not an available remedy for violation of Sec. 3161(j) of the Act.

The Act was a legislative response to a perceived failure in the court system to adequately insure that " '[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...' " United States v. Montoya, 827 F.2d 143, 147 (7th Cir.1987) (quoting U.S. Const. amend VI). Under the Act, the government must, with certain enumerated exceptions, bring criminal defendants to trial within 100 days of their arrest and must indict a defendant within 30 days of his or her arrest. 18 U.S.C. Sec. 3161(b). Section 3161(j) addresses the procedures to be followed for bringing about the trial of an offender who is already in custody under sentence for a different offense. Section 3161(j) places a duty on the government to act "promptly" upon learning of the defendant's incarceration to either (1) undertake to obtain the offender's presence for trial or (2) have a detainer filed with the defendant's custodian and have the defendant informed of the charge and his right to demand a speedy trial. ¹ Once the government receives notice that the prisoner demands a trial, the attorney for the government must promptly obtain the presence of the prisoner for trial.

A district court's interpretation of the Act calls for a de novo review by an appellate court. Montoya, 827 F.2d at 147; United States v. Robinson, 887 F.2d 651, 656 (6th Cir.1989). The trial court found that Dawn raised a "serious question" as to whether the government acted "promptly" in this case since the defendant invoked his speedy trial rights on July 18, 1988, and the government took no action until October 31, 1988, when it applied for a Writ of Habeas Corpus ad Prosequendum. The court concluded, however, that it was unnecessary to decide whether the government complied with the requirements of Sec. 3161(j) because the remedy sought by the defendant, dismissal of the indictment, was not available for violations of Sec. 3161(j).

We find that this conclusion is well supported by the plain language of the Speedy Trial Act. Neither Sec. 3161(j) itself nor any other statutory provision provide such a sanction for its violation. Section 3162 provides the sanctions for Speedy Trial Act violations, and it addresses the dismissal sanction only in the event of violation of Sec. 3161(b) or Sec. 3161(c)(1). In contrast, Sec. 3162 does not provide for dismissal in the event of violation of Sec. 3161(j). "The language of Sec. 3162(a) contains no ambiguities that might allow its sanctions to be imposed for a violation of Sec. 3161(j)." United States v. Valentine, 783 F.2d 1413, 1415 (9th Cir.1986). Such an interpretation of the statute does not render Sec. 3161 unenforceable, as the defendant suggests. Under subsections 3162(b)(4)(C)-(E), a violation of Sec. 3161(j) may subject the government's attorney to fines, suspension or the filing of a report with a disciplinary committee. See United States v. Anderton, 752 F.2d 1005, 1008 (5th Cir.1985). In reaching the conclusion that "dismissal of the indictment is not a remedy for violations of Sec. 3161(j)(1) of the Speedy Trial Act," a panel for the Ninth Circuit reasoned that "though the sanctions provision of the Speedy Trial Act, Title 18 United States Code, Section 3162, provides for the sanction of dismissal of the indictment for certain specified substantive...