U.S. v. Dobson

• Decision Date: 10 October 1978
• Docket Number: No. 77-2378,77-2378
• Citation: U.S. v. Dobson, 585 F.2d 55 (3rd Cir. 1978)
• Parties: UNITED STATES of America, Appellant, v. Robert DOBSON.
• Court: U.S. Court of Appeals — Third Circuit

Page 55

585 F.2d 55

UNITED STATES of America, Appellant, v. Robert DOBSON.

No. 77-2378.

United States Court of Appeals Third Circuit.

Argued March 31, 1978.

Decided Aug. 2, 1978.

Certiorari Denied Oct. 10, 1978.

See 99 S.Ct. 264.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, App. Section, Theodore A. McKee, Asst. U. S. Atty., Philadelphia, Pa., for appellant.

Alan A. Turner and Douglas Riblet, Asst. Defenders, Federal Court Div., Defender Association of Phila., Philadelphia, Pa., for appellee.

Before HUNTER, WEIS, and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal presents an issue of first impression: does the Interstate Agreement on Detainers Act (Act) ¹ apply to a parole violator detainee prior to any parole revocation hearing, and thus prior to the time that parole is actually revoked? The district court answered this question in the affirmative. We reverse, and hold that a putative parole violator held in custody pursuant only to a parole violation warrant does not come within the provisions of the Act.

I.

Robert Dobson, who had been on parole after serving a portion of his state-imposed 7 1/2 to 21 year sentence, was apprehended for violating certain state and federal statutes. After his arrest for committing the state offenses, ² Dobson posted bail pertaining to those offenses only. Despite this posting of bail, Dobson was nevertheless held in state custody as a technical parole violator pursuant to a state parole violation warrant. See Pa.Stat.Ann. tit. 61, § 331.21a(b) (Purdon 1964).

On June 7, 1977, a federal detainer was lodged against Dobson ³ in connection with a magistrate's complaint under which Dobson was then charged. Two federal writs of habeas corpus Ad prosequendum issued, and Dobson appeared at a federal bail hearing, and a probable cause hearing. At the conclusion of each proceeding, Dobson was returned to state facilities.

Thereafter, on July 6, 1977, while Dobson was still in state custody, a four-count federal indictment which superseded the magistrate's complaint was returned against Dobson. It charged him in two counts with possession and utterance of counterfeit United States currency, ⁴ possession of a firearm by a felon, ⁵ and possession of methamphetamine with intent to distribute. ⁶ Pursuant to a third writ of habeas corpus Ad prosequendum, Dobson appeared at an arraignment on the indictment. Then, on July 15th, another detainer was lodged by federal officials with state authorities, this time based on the federal indictment. No writ Ad prosequendum was filed after this second detainer was lodged. ⁷

On August 29, 1977, Dobson moved to dismiss the federal indictment on the ground that his return to state custody following each appearance in federal court violated Article IV(e) of the Act. ⁸ The district court agreed with Dobson, and ruled that the Act included within its ambit a parole violator detainee. Accordingly, on September 16, 1977, pursuant to Article IV(e) of the Act, the district court dismissed the federal indictment which had been returned against Dobson.

On November 30, 1977, the Pennsylvania Board of Probation and Parole rescinded its earlier action which had ordered that Dobson's parole revocation hearing be scheduled. Instead the Board determined that Dobson should be continued on parole.

II.

The Act prescribes the procedure that must be followed when one state (here, the federal authority and receiving state) lodges a detainer with another state in which the detainee is incarcerated (here, Pennsylvania, the sending state), and thereafter requests the appearance of the detainee for proceedings in the receiving state. ⁹ Concomitantly, the Act affords certain protections to the detainees who are transferred from one jurisdiction to another. One such protection provides for the dismissal of a receiving state's indictment when the receiving state, before trial in that state, returns a prisoner to the original place of his confinement. Art. IV(e). ¹⁰

The provisions of the Act however apply only to a "prisoner" who is "serving a term of imprisonment". Art. IV(a). ¹¹ Dobson accordingly claims that he, as a parolee whose parole has been threatened with revocation and who is incarcerated pursuant to a parole violation warrant, is indeed "serving a term of imprisonment." He contends that inasmuch as his confinement "stems solely from the existence of a term of imprisonment previously imposed" (the balance of his 7 1/2 to 21 year sentence), he was "serving a term of imprisonment when the Parole Board had achieved his incarceration," and therefore comes within the provisions of the Act. Appellee's Brief at 7.

The Government, on the other hand, argues that the provisions of the Act apply only when imprisonment is pursuant to a final determination of guilt; therefore a parole violation detainer, being temporary and contingent in character, is not the equivalent of such a final determination as would constitute the requisite condition prescribed by the statute, namely service of a term of imprisonment. Government's Brief at 6. While we are not attracted to any of the other arguments made by the Government in its brief, we are persuaded that a parolee who is confined awaiting a parole revocation hearing is not serving a term of imprisonment within the intendment of the Act.

A.

It seems clear to us that the natural meaning of the phrase "serving a term of imprisonment" denotes no more or less than that definable period of time during which a prisoner must be confined in order to complete or satisfy the Prison term or sentence which has been ordered. Thus, the very words of the statute would appear to exclude those held in custody for periods of time which are not defined in terms of duration, which are not certain, and which do not follow a conviction or determination of parole revocation. Hence even though we recognize that the basis for a parolee's detention is the underlying sentence from which he has been paroled, until such time that the parole violator is recommitted after a hearing, and his incarceration thereby made certain and fixed as to duration, no term of imprisonment can be said to have commenced or resumed. In this respect a parole violator is no different than a pretrial detainee who is merely awaiting trial and who, until conviction and sentencing, cannot commence service of a term of imprisonment.

Indeed, until conviction at trial and the imposition of a sentence, the length of the pretrial detainee's confinement is uncertain. So too, until a parole revocation hearing has been held, and the parole violator's parole is revoked and he is recommitted, his status with respect to confinement is similarly uncertain. ¹² In short, just as pretrial incarceration is a transitory and impermanent state, incarceration pursuant to a parole violation warrant is just as transitory and impermanent. Both place the prisoner in no more than a "holding pattern."

Primarily for this reason, various courts, both state and federal, have unanimously refused to extend the Act to reach detainees awaiting trial. United States v. Harris, 566 F.2d 610, 612-13 (8th Cir. 1977); United States v. Roberts, 548 F.2d 665, 669-71 (6th Cir.), Cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977); United States v. Evans, 423 F.Supp. 528, 531 (S.D.N.Y.1976), Aff'd, 556 F.2d 561 (2d Cir. 1977) (without written opinion); Seymour v. State, 21 Ariz.App. 12, 515 P.2d 39 (1973); Davidson v. State, 18 Md.App. 61, 305 A.2d 474, 479 (1973); People v. Butcher, 46 Mich.App. 40, 45, 207 N.W.2d 430, 433 (1973); Cresong v. Nevil, 51 A.D.2d 1096, 381 N.Y.S.2d 355 (1976). In so doing, they have recognized, as do we, that a pretrial detainee "has no immediate interest in any institutional treatment or program of rehabilitation." United States v. Harris, 566 F.2d at 613, Quoting United States v. Roberts, 548 F.2d at 670-71. This lack of interest obviously stems from the uncertain and contingent nature of a confinement which is dependent both upon the outcome of trial and the imposition of a jail sentence. See United States v. Harris, 566 F.2d at 613; United States v. Roberts, 548 F.2d at 670-71. In discussing the exclusion of pretrial detainees from the ambit of the Act, Judge Lively, writing for the Sixth Circuit, concluded:

the Agreement is only concerned that a sentenced prisoner who has entered into the life of the institution to which he has been committed for a term of imprisonment not have programs of treatment and rehabilitation obstructed by numerous absences in connection with successive proceedings related to pending charges in another jurisdiction. There is no indication in the language of the Agreement or in the legislative history that its provisions were intended to apply to persons being detained for trial who are not serving prison sentences.

Id. at 671.

B.

This "holding pattern" status assumes substantial significance when we examine the purposes of the Act purposes to which we have already adverted in discussing the status of a pretrial detainee. Our court has previously emphasized that a major purpose of the Act is "to minimize the interference with a prisoner's treatment and rehabilitation." United States ex rel. Esola v. Groomes, 520 F.2d 830, 833 (3d Cir. 1975). Accord, S.Rep. No. 1356, 91st Cong., 2d Sess., Reprinted in (1970) U.S.Code Cong. & Admin.News, pp. 4864, 4864-66; H.R.Rep. No. 1018, 91st Cong., 2d Sess. (1970). The Supreme Court explained the objectives of the Act (Agreement) as follows:

In recommending the adoption of the Agreement, the Council of State Governments outlined some of the problems caused by detainers that the Agreement was designed to address. It noted that prison administrators were 'thwarted in (their) effort(s) toward rehabilitation (because t)he inmate who has a detainer against him is filled with anxiety and apprehension and frequently does not respond to a...