U.S. v. Hill

• Decision Date: 01 August 1980
• Docket Number: No. 79-5574,79-5574
• Citation: 622 F.2d 900
• Parties: 6 Fed. R. Evid. Serv. 759 UNITED STATES of America, Plaintiff-Appellee, v. Fred HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 900

622 F.2d 900

6 Fed. R. Evid. Serv. 759

UNITED STATES of America, Plaintiff-Appellee, v. Fred HILL, Defendant-Appellant.

No. 79-5574.

United States Court of Appeals Fifth Circuit.

Aug. 1, 1980.

Donald C. Beskin, Atlanta, Ga., for defendant-appellant.

Frank J. Marine, Atty. U. S. Dept. of Justice, Washington, D. C., William L. McCulley, Sp. Atty., Atlanta Strike Force, Dept. of Justice, Atlanta, Ga., for the U. S.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.

REAVLEY, Circuit Judge:

Appellant, Fred Hill, was convicted of conspiring to possess heroin and cocaine with intent to distribute these controlled substances. Four issues are raised on this appeal. First, whether the trial court erred in denying Hill's motion to dismiss the indictment on the grounds that the government trespassed Article IV(c) of the Interstate Agreement on Detainers Act ("IADA"), 18 U.S.C.App. pp. 1395-98 (1976), by failing to bring him to trial within 120 days of his arrival in the Northern District of Georgia. Second, whether the indictment should have been dismissed because the government infringed Article IV(e) of the IADA by returning Hill to the jurisdiction wherein he had been originally incarcerated before bringing him to "trial" in the Northern District of Georgia. Third, whether the lower court misjudged by failing to grant Hill's motion to dismiss on speedy trial grounds. Finally, error is assigned to the trial judge's refusal to instruct the jury that statements of certain absent coconspirators were admissible because he had made a threshold, independent determination of Hill's participation in a conspiracy and that the remarks were in furtherance of the conspiracy. We hold that no reversible error was committed below and affirm.

I.

On May 18, 1976, Hill was indicted by a federal grand jury in the Northern District of Georgia for the aforementioned conspiracy. By letter dated May 28, 1976, the United States Attorney for the Northern District of Georgia requested that the United States Marshal in Atlanta have a detainer lodged against Hill, who was then imprisoned in a California state penal institution. The request was eventually forwarded to the United States Marshal in San Francisco who, in turn, sent the detainer to the California penal facility at Soledad, California, where Hill was confined. The detainer bears a mark of June 21, 1976 as the date it was received.

Meanwhile, a writ of habeas corpus ad prosequendum ("writ") was sent from the Northern District of Georgia commanding California prison authorities to relinquish possession of Hill for federal criminal proceedings in Georgia. The writ was sent to the Soledad complex with a cover letter that bore the date of June 15, 1976. For reasons that do not appear in the record, however, the date that the writ was received by the California institution was not recorded. It is known that Hill was surrendered into the custody of federal officers to be transported, pursuant to the writ, ¹ on June 23, 1976, and he arrived in the Northern District of Georgia three days later.

On November 23, 1976, Hill filed a motion to dismiss the indictment in accordance with Article V(c) of the IADA, alleging that he had not been brought to trial within 120 days of his arrival in the jurisdiction as required by Article IV(c) of the IADA. The magistrate to whom the motion was referred recommended that it be denied, and on January 10, 1977, the district court approved the recommendation. That same day Hill changed his plea to guilty while reserving the right to challenge the refusal to dismiss the indictment on appeal. In an opinion dated December 21, 1977, this court vacated the conviction and ruled that the district court could not accept a conditional guilty plea reserving the prerogative to raise non-jurisdictional issues on appeal. United States v. Hill, 564 F.2d 1179 (5th Cir. 1977). Our mandate was made the judgment of the lower court on January 16, 1978.

During these developments Hill had been held in federal custody. On August 24 1978, however, he was returned to the California facility at Soledad.

After remand, on October 27, 1978, Hill again moved to dismiss the indictment on Article IV(c) grounds. Subsequently, on January 17, 1979, a pending joint request of counsel for the government and counsel for Hill resulted in the trial court's granting a continuance of the trial until March 12, 1979. But on March 7, 1979, both counsel again joined in a motion to remove the case from the trial calendar until at least two weeks after the district court ruled on the motion to dismiss. One week later the lower court denied the motion to dismiss, reasoning that the IADA would have been activated only if the detainer arrived antecedent to the writ and that Hill had failed to carry his burden of establishing the sequence of arrivals. On March 26, 1979, Hill filed a pro se motion to reconsider in the district court, wherein he asserted breach of his speedy trial right for the first time, ² and a petition for a writ of mandamus in this court to compel the district court to dismiss the indictment. We denied the petition on May 10, 1979 and a subsequent motion to reconsider that denial on May 24, 1979. Trial commenced July 23, 1979, and this appeal followed conviction.

II.

Congress enacted the IADA in 1970 to combat abuses of the use of detainers. The provisions were operative during all pertinent times for purposes of this appeal. Article IV(c) ³ of the IADA generally requires that a prisoner must be brought to trial within 120 days of his arrival in the "receiving State" in respect to any proceeding made possible by Article IV of the IADA. ⁴ The term "State" is defined to include the United States by Article II(a). Failure to adhere to the applicable time limitation requires dismissal of the indictment with prejudice under Article V(c). ⁵

In United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the Court decided two appeals, the Mauro and Ford cases, from the Second Circuit. In the Mauro case, a unanimous Court held that the provisions of the IADA are not implicated when the presence of a prisoner, held by a jurisdiction which is also a party to the Interstate Agreement on Detainers, is obtained solely by multiple use of the writ. The writ is simply not a detainer within the meaning of the IADA. ⁶ In the Ford case, a majority of the Court concluded that when a detainer is lodged with prison authorities in the sending state before the writ is received the IADA is activated. In such circumstances, the writ operates as a "written request for temporary custody" within the meaning of Article IV, necessitating the commencement of trial within the 120-day constraint.

However, neither the Court's opinion in Mauro, nor any other decision of which we are aware, squarely addresses the question of whether the provisions of the IADA apply when it cannot be determined whether the detainer's arrival antedated the writ's arrival due to the absence of a record of a date when the writ was received. We are reticent to place the onus of proving the arrival of the detainer antecedent to the arrival of the writ on the prisoner on these facts. We should guard against erecting a precedent that would invite the filching of the benefits of the IADA by prison officials who intentionally or negligently fail to record the arrival of each document. Motions to dismiss may not surface until long after the omission when no one can realistically expect that the respective dates can be shown. ⁷ For present purposes, we will assume that the detainer arrived at the Soledad correctional complex before the writ arrived.

Our assumption, coupled with the Mauro holding in the Ford case, would dictate reversal if this episode had not predated that decision. However, we had already vacated Hill's original conviction and remanded for a new arraignment and trial by the time Mauro was decided. A preliminary inquiry, then, is whether Mauro should be accorded retroactive application.

In Brown v. Mitchell, 598 F.2d 835, 837-39 (4th Cir. 1979), a case involving Article IV(e) of Virginia's enactment of the Interstate Agreement, the Fourth Circuit held that Mauro announced a new rule of law that was not clearly foreshadowed as required to satisfy the threshold test for potential denial of retroactive application set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971). ⁸ Consequently, the decision was not to be afforded automatic retroactivity; rather, the court turned to and examined four factors governing retroactive application of new principles announced in Stovall v. Denno, 388 U.S. 293, 296-300, 87 S.Ct. 1967, 1969-71, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 636-38, 85 S.Ct. 1731, 1741-42, 14 L.Ed.2d 601 (1965). Those are:

(1) the extent of reasonable reliance upon the premise that the now-condemned conduct was legitimate;

(2) the purpose of the new rule and the extent to which that purpose will be aided by retroactivity;

(3) the effect on the administration of justice of applying the new rule retroactively; and

(4) the extent to which the new rule bears on the defendant's guilt or innocence.

Brown, 598 F.2d at 838. See generally, Brown v. Louisiana, --- U.S. ----, ----, 100 S.Ct. 2214, ----, 64 L.Ed.2d --- (1980). The panel concluded that none of these militated in favor of retroactive application of Mauro and that it should not be applied retroactively. The Third Circuit has recently followed suit in another case involving an Article IV(e) infraction. United States v. Williams, 615 F.2d 585, 592-93 (3d Cir. 1980). Accord, Hawkins-El v. Williams, 483 F.Supp. 415, 420-22 (D.Md.1979) (Articles IV(c) and IV(e) under Maryland legislation); Mars v. United States, 463 F.Supp. 87, 90-94 (E.D.Mich.1978).

With regard to the first, third,...