U.S. v. Dixon

• Decision Date: 13 February 1979
• Docket Number: No. 77-5133,77-5133
• Citation: 592 F.2d 329
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Frederick DIXON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 329

592 F.2d 329

UNITED STATES of America, Plaintiff-Appellee, v. Richard Frederick DIXON, Defendant-Appellant.

No. 77-5133.

United States Court of Appeals Sixth Circuit.

Argued Oct. 2, 1978.

Decided Feb. 13, 1979.

Kurt A. Philipps, Covington, Ky., (Court-appointed), for defendant-appellant.

James K. Robinson, U. S. Atty., Christopher A. Andreoff, Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before WEICK, Circuit Judge, PHILLIPS, Senior Circuit Judge, and LAWRENCE, Senior District Judge. ^*

PHILLIPS, Senior Circuit Judge.

Richard Frederick Dixon appeals from his conviction at a jury trial for air piracy, in violation of 49 U.S.C. § 1472(i), and kidnapping, in violation of 18 U.S.C. § 1201(a). Appellant presents a number of challenges to his conviction on the two charges. The two principal issues raised are: (1) whether the United States violated the Interstate Agreement on Detainers, 18 U.S.C. App. (1970); and (2) whether appellant was improperly convicted on both the kidnapping and air piracy charges.

We conclude that the contentions of appellant are without merit and affirm his conviction.

I

On January 19, 1972, Dixon was indicted by a Federal Grand Jury in the Eastern District of Michigan on charges of air piracy, in violation of 49 U.S.C. § 1472(i), ¹ and kidnapping, in violation of 18 U.S.C. § 1201(a). ² The airplane hijacking from which the present charges arose occurred on October 9, 1971, when Dixon, armed with a revolver, seized a flight attendant who was assisting boarding passengers on an Eastern Airlines jet at the Detroit Metropolitan Airport. Dixon then ordered the pilot to fly the plane to Cuba. Dixon apparently remained in Cuba for some time after the hijacking.

Approximately five years later, on January 9, 1976, Dixon was arrested by the Michigan State Police in connection with the murder of a police officer. During the course of the state investigation, state authorities discovered that Dixon was wanted by federal authorities on the air piracy and kidnapping charges. Federal authorities were notified of Dixon's arrest by the Michigan State Police.

On March 29, 1976, Dixon was delivered from the Allegan County, Michigan, jail where he was being held by state authorities, to federal custody, pursuant to a writ of habeas corpus ad prosequendum issued on March 22, 1976. Upon his arrival in federal custody, Dixon was arraigned on the air piracy and kidnapping charges. At the time of Dixon's arraignment, federal authorities placed a detainer ³ on Dixon with state prison officials at the Allegan County jail. At this time, Dixon had not entered upon a term of imprisonment in any state or federal facility. Thereafter, Dixon was returned to state custody at the Allegan County facility.

Dixon was convicted of second degree murder in a Michigan Circuit Court on July 29, 1976. He was sentenced to life imprisonment on September 10, 1976. On September 15, 1976, he was sent to the Reception and Guidance Center of the state prison at Jackson, Michigan, for testing and final processing before his confinement. On September 22, 1976, the Guidance Center received from the Allegan County jail officials the federal detainer previously placed on Dixon.

A final pre-trial conference on Dixon's federal charges was scheduled for September 27, 1976. On or about September 3, 1976, Dixon's then counsel, John N. Thompson, of the Federal Defender's Office of the Legal Aid and Defender Association, Detroit, Michigan, asked Christopher A. Andreoff, the Assistant United States Attorney prosecuting the case, to have Dixon brought into federal custody by writ of habeas corpus ad prosequendum at the time of the final pre-trial conference. Thompson requested Dixon's presence at the final pre-trial conference so that he might discuss the case with Dixon. Because of logistical problems Thompson had been unable to confer with Dixon personally concerning the federal charges against him at any time prior to his request of Andreoff. ⁴ Andreoff had no intention of bringing Dixon into federal custody prior to trial and Dixon's presence was not required at the pre-trial conference. However Andreoff agreed to have Dixon delivered in time for the pre-trial conference as a courtesy to Thompson.

Pursuant to a writ of habeas corpus ad prosequendum granted on September 13, 1976, Dixon was delivered to federal authorities in Detroit on September 24, 1976, four days after the federal detainer was lodged at the Reception Center. Dixon appeared at the pre-trial conference on September 27, 1976, and requested new counsel or the right to represent himself at trial. Dixon was permitted to represent himself and Thompson was allowed to withdraw from the case. Another attorney from the Federal Defender's Office of the Legal Aid and Defender Association was appointed to assist Dixon in his pro se defense.

The pre-trial conference was completed on September 29, 1976, at which time the parties agreed to begin trial on November 16, 1976. Dixon requested that he be allowed to remain in federal custody for as many as 20 days, permitting him to work with his newly appointed counsel in the preparation of his case and any final motions that he might want to make. Andreoff pointed out that Dixon's state processing was being interrupted, but that he would be kept as long as possible in light of that difficulty. Dixon was returned to the Reception Center to complete his processing on October 15, 1976, and on the completion of that processing was confined, on October 26, 1976, in the State Prison of Southern Michigan at Jackson.

Prior to trial, Dixon filed a number of motions, including a motion to compel line-up and a motion to dismiss the indictment for failure to comply with the Interstate Agreement on Detainers. Pursuant to a writ of habeas corpus ad prosequendum, Dixon was delivered again to federal authorities on November 4, 1976, for a decision on his pre-trial motions and for trial. Pre-trial hearings on Dixon's motions were held, after which the motions were denied. Dixon's trial commenced on December 7, 1976, and on December 16, 1976, the jury returned a verdict of guilty on both counts of the indictment. Dixon was sentenced to twenty year terms of incarceration on each count of the indictment, the sentences to run consecutively and consecutive to the life sentence Dixon received for his second degree murder conviction in Michigan Circuit Court.

This appeal followed.

II

Congress enacted the Interstate Agreement on Detainers Act ⁵ in 1970, joining the United States and the District of Columbia as parties to the Interstate Agreement on Detainers (Agreement), to which 46 states are signatories. The Agreement attempts to remedy the disadvantages and hardships imposed upon prisoners attendant with the use of detainers and to eliminate potential abuses of the detainer system. ⁶ Accordingly, the Agreement encourages the expeditious disposition of outstanding charges by providing the prisoner with a method of clearing detainers and charges outstanding against him. It further provides cooperative proceedings governing temporary transfers of prisoners for purposes of trial on outstanding charges among the participating jurisdictions to aid such disposition. In either case, the provisions of the Agreement are applicable only when a participating jurisdiction, having untried charges pending against a prisoner, first lodges a detainer with the participating jurisdiction where the prisoner is incarcerated. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

The central provisions of the Agreement are Article III and Article IV. Article III sets forth the procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. If a prisoner demands a speedy trial pursuant to the guidelines of Article III, the jurisdiction which filed the detainer is required to bring him to trial within the Article III(a) time limit. Failure to comply will result in a dismissal of the outstanding charges, with prejudice. Article III(d) also requires the disposition of all outstanding charges in a jurisdiction prior to the return of the prisoner to the original place of incarceration. Any charges left untried after the prisoner has been returned to the original place of incarceration will be dismissed with prejudice. United States v. Mauro, supra; United States v. Ford, 550 F.2d 732 (2d Cir. 1977), Aff'd sub nom., United States v. Mauro.

Article IV provides a means by which a prosecutor, who has lodged a detainer against a prisoner in another participating jurisdiction, can secure temporary custody of a prisoner for disposition of the outstanding charges against the prisoner. Once a prosecuting authority has gained temporary custody over a prisoner by a "written request" to the jurisdiction of incarceration (Art. IV(a)), two limitations are placed on the "requesting" prosecutor. Article IV(c) requires that trial must commence within 120 days of the prisoner's arrival in the requesting jurisdiction, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Ridgeway v. United States, 558 F.2d 357 (6th Cir. 1977) Cert. denied, 436 U.S. 946, 98 S.Ct. 2850, 56 L.Ed.2d 788 (1978). Article IV(e) provides:

"If 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 pursuant to article V(e) hereof, 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."

Thus, if a prosecuting jurisdiction takes the initiative to bring a prisoner, against whom it has lodged a detainer, from the jurisdiction of incarceration into its temporary custody for disposition of outstanding charges against the prisoner, the requesting...