U.S. v. Ford

Decision Date03 February 1977
Docket NumberD,No. 419,419
PartiesUNITED STATES of America, Appellee, v. Richard T. FORD, Defendant-Appellant. ocket 76-1319.
CourtU.S. Court of Appeals — Second Circuit

David J. Gottlieb, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Don D. Buchwald, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., Frederick T. Davis, Asst. U. S. Atty., New York City, of counsel), for appellee.

Before MOORE, MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

After lodging a detainer against appellant with state prison authorities in Massachusetts, where he was incarcerated, the federal government, on March 24, 1974, used a writ of habeas corpus ad prosequendum to obtain appellant's presence in the Southern District of New York for purposes of arraignment on charges arising out of a Middletown, New York, bank robbery. 1 Despite his repeated requests for a prompt trial and despite the fact that Article IV(c) of the Interstate Agreement on Detainers Act (Detainers Act) 2 requires trial within 120 days unless continuances are granted for good cause in open court, the imprisoned appellant was not tried until September 2, 1975, more than 17 months later. Because of the failure to comply with the speedy trial requirements of Article IV(c) and because Article V(c) of the Act mandates that in such event the indictment be dismissed with prejudice, we reluctantly reverse, with directions to dismiss the indictment.

Federal authorities arrested appellant in Chicago on October 11, 1973, on two federal warrants one for bank robbery issued by the Southern District of New York and one for unlawful flight issued by the District of Massachusetts. The unlawful flight charge was dismissed but appellant also faced various state charges filed against him in Massachusetts. He was therefore turned over to Chicago authorities for extradition to Massachusetts for trial on state charges, and the federal warrant issued by the Southern District for bank robbery was lodged with the Massachusetts authorities as a detainer. Appellant pleaded guilty to the Massachusetts charges and was sentenced to concurrent terms of 8 to 10 years.

On March 21, 1974, an indictment for bank robbery was filed in the Southern District of New York, and on March 24 a writ of habeas corpus ad prosequendum was used to obtain custody of appellant for arraignment. On April 1, the government filed its notice of readiness for trial as required by Rule 4 of the Plan for the Prompt Disposition of Criminal Cases of that district. Two days later, however, the government filed the present superseding indictment, naming in addition one James P. Flynn, who thereupon took flight. On April 15, appellant pleaded not guilty. Trial was set for May 28, 1974.

Shortly before trial was to commence, on May 17, the government requested the first of what was to become a long series of delays, moving to adjourn the trial for 90 days or until Flynn was apprehended, whichever came first, and supporting its motion by sealed affidavit. Over appellant's vigorous protests, the motion was granted and trial was set for August 21. Following the granting of the adjournment, appellant requested to be returned to Massachusetts custody, so that he and his attorney could more conveniently prepare for trial and because his family was in Massachusetts. He was returned on June 14, 1974.

In August, after the original judge, Judge Bauman, resigned from the bench, the case was assigned to Judge Motley. Without explanation, the trial date was postponed to November 18. On November 1, the government again moved for an adjournment of 90 days within which to apprehend appellant's co-defendant, again supporting its motion by sealed affidavit. On November 4 the defense moved to dismiss the indictment on the ground that appellant had been denied a speedy trial. The district court denied the speedy trial motion and granted the further adjournment, setting trial for February 18, 1975.

On the date set for trial, however, the trial judge was engaged in another trial. Despite the fact that we had recently emphasized On August 8 the government obtained appellant from Massachusetts for trial by way of a second writ of habeas corpus ad prosequendum. At the beginning of trial appellant again moved for a dismissal of the indictment for failure to provide a speedy trial. This motion, like his first, was denied. Appellant was convicted on all counts and was sentenced to concurrent 5-year terms. Judge Motley recommended that the federal terms be allowed to run concurrently with the Massachusetts state terms appellant was already serving.

that calendar congestion could not justify delay of a criminal trial and stated that under such circumstances the trial judge should sua sponte transfer the case to another judge for prompt trial, 3 trial was postponed another four months, to June 11. The defense reiterated its speedy trial objections. In the following month the Southern District of New York undertook a crash program for civil cases, to begin June 1. When the government sought to ascertain whether appellant's trial would be affected, Judge Motley, sua sponte, set a new trial date of September 2, 1975. Defense counsel was subsequently notified.


Because we uphold appellant's claims under the Detainers Act, we need not discuss his other claims. 4 Many of the questions treated by the government here as open were recently settled in this circuit by our decision in United States v. Mauro, 544 F.2d 588 (2d Cir. 1976) where we held that under the Detainers Act the United States is bound by the statute's definition of it as both a sending and a receiving "State" and that the writ of habeas corpus ad prosequendum constitutes a "detainer" and a "request" by a prosecuting authority within the meaning of the Act, with the present author dissenting in that case from the majority's holding that a writ of habeas corpus ad prosequendum constitutes a "detainer." The government here, however, has conceded that appellant in this case was subject to a detainer, separate and apart from the writ, filed by it with the Massachusetts authorities. 5 Whether the writ independently constitutes a detainer, therefore, is not at issue here.

Granting that appellant here was subject to a "detainer" and that he was obtained by the federal authorities through a "request" as that term is used in Article IV(a) of the Act, under Mauro it is clear that the Detainers Act applies. Strictly speaking, this case therefore presents only two questions under the Act: (1) whether the Act was violated and, (2) if so, whether such violation warrants reversal of the conviction below. Because the government argues strenuously that the writ of habeas corpus cannot constitute a "request" under Article IV of the Act, however, we will begin with a review of the reasons for our disagreement with the government's position.

The government's argument rests upon a proviso in Article IV(a) to the effect that, after receipt by appropriate state authorities of a request from another jurisdiction for custody of a prisoner, there shall be a 30-day waiting period during which the governor of the sending state may disapprove the request and thus in effect dishonor it. 6 If a habeas writ were treated as a "request," the argument goes, the effect would be a sub silentio partial repeal of 28 U.S.C. § 2241(c)(5), which authorizes a federal court to command a state custodian to turn over a prisoner to federal authority, presumably without delay or the right to disapprove. 7 Since a partial repealer of that section should not lightly be inferred, see Rosencrans v. United States, 165 U.S. 257, 17 S.Ct. 302, 41 L.Ed. 708 (1897), the argument goes, the writ should not be held to constitute a "request," and therefore the government here should be freed from the trial limitations of the Detainers Act.

Although the government's argument might at first blush appear to have some theoretical appeal, the history and purpose of the Act indicates that the Article IV(a) proviso was aimed merely at preserving the existing law with respect to interstate transfers, under which the governor of the sending state might refuse to turn over a prisoner to another state, as distinguished from federal authorities. However, regardless of the reach of that proviso and this issue is not before us, since the Governor of Massachusetts has never refused to honor the federal writ of habeas corpus commanding that Ford be produced a review of the structure and purposes of the Detainers Act makes it abundantly clear that its speedy trial provisions were intended to apply to the federal government as a "State" under the Act.

The Detainers Act was originally drafted in response to a variety of problems arising out of the then unregulated system of detainers commonly used where one or more jurisdictions had charges outstanding against a prisoner held by another jurisdiction. Under that system, once one of the jurisdictions had tried and convicted him the other jurisdictions, instead of trying him on their charges, would simply file detainers with the prison authorities holding him. The detainers would serve to notify the prison authorities that charges were pending against the prisoner elsewhere. Upon the prisoner's completion of the first prison term, the second jurisdiction could bring the defendant to trial on its own charges and, should a conviction be obtained, still other jurisdictions desiring to press charges might then file detainers with the prison where he was next incarcerated.

The disadvantages and potential abuses of this system were many. 8 Prison authorities often accorded detainers considerable weight in making decisions with respect to the terms and conditions of the prisoner's incarceration and release on...

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