U.S. v. Kenaan

• Court: U.S. Court of Appeals — First Circuit
• Writing for the Court: Before COFFIN, Chief Judge, CAMPBELL; MARKEY
• Citation: U.S. v. Kenaan, 557 F.2d 912 (1st Cir. 1977)
• Decision Date: 07 July 1977
• Docket Number: No. 77-1014,77-1014
• Parties: UNITED STATES of America, Appellant, v. Elias KENAAN, Defendant, Appellee.

Page 912

557 F.2d 912

UNITED STATES of America, Appellant, v. Elias KENAAN, Defendant, Appellee.

No. 77-1014.

United States Court of Appeals First Circuit.

Argued April 5, 1977.

Decided July 7, 1977.

Jeremiah T. O'Sullivan, Sp. Atty., Dept. of Justice, Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., and Gerald E. McDowell, Sp. Atty., Dept. of Justice, Washington, D.C., were on brief, for appellant.

James W. Lawson, Boston, Mass., with whom Martin G. Weinberg, Judith H. Mizner and Oteri & Weinberg, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MARKEY, ^* Chief Judge.

MARKEY, Chief Judge.

This is an appeal by the United States from an order of the United States District Court for the District of Massachusetts granting appellee's (Kenaan's) motion to dismiss an indictment on the ground that the Government had violated Article IV(e) of the Interstate Agreement on Detainers Act ("Agreement") ¹ by transferring Kenaan from state to federal custody pursuant to a writ of habeas corpus ad prosequendum and then not trying him before returning him to state control. ² We reverse and remand.

Facts

On April 13, 1976, Kenaan was indicted by a grand jury of the District of Massachusetts for violations of the Internal Revenue Code. ³ At that time he was serving a sentence at the Lawrence House of Correction in Massachusetts for violation of that state's narcotics laws. On April 30, 1976, Kenaan was transferred to the United States District Court pursuant to a writ of habeas corpus ad prosequendum ⁴ issued by that court for the purpose of arraignment. Kenaan was arraigned and returned immediately thereafter to state custody. On June 28, 1976, Kenaan was again transferred to the same District Court pursuant to a second writ of habeas corpus ad prosequendum, this time to offer a guilty plea to the indictment. He was returned to state custody when the court declined to accept his guilty plea.

On August 16, 1976, Kenaan filed a motion to dismiss the indictment with prejudice, basing his motion on Article IV(e) of the Agreement. The motion was granted on October 28, 1976. Notice of this appeal was filed by the Government on November 22, 1976.

Background

The Interstate Agreement on Detainers Act was enacted in 1970 by Congress on behalf of the United States and is now in force in 46 states. Article I of the Agreement briefly sets forth the problems it sought to solve and the policies it encouraged:

Article I

The party States find that charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party States and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints. The party States also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.

Article II(a) defines a "State" for purposes of the Act as including the United States of America. Pertinent portions of Article IV provide for transfer of prisoners at the request of the jurisdiction in which an action is pending and for dismissal of the pending charges if the prisoner is not tried prior to his return to the original place of imprisonment:

Article IV

(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated: Provided, That the court having jurisdiction of such indictment, information, or complaint shall have duly approved, recorded, and transmitted the request: And provided further, That there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner.

(e) 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. (Emphasis added).

Issue

The sole issue is whether the District Court erred in applying the provisions of the Agreement to the Government's action in using the writs of habeas corpus ad prosequendum, ⁵ thus treating, in effect, the Agreement as the exclusive means by which the United States may obtain custody of a state prisoner in disposing of pending federal charges. ⁶

OPINION

Although the District Court relied on recent decisions in the Second and Third Circuits, holding the Agreement to be the exclusive means of prisoner transfer for prosecution, ⁷ we decline to follow those precedents. Our view of the relationship between the Agreement and the writ of habeas corpus ad prosequendum more closely accords with that expressed by the Fifth Circuit in United States v. Scallion, supra note 5, and set forth in United States v. Mauro, supra note 5 (Mansfield, J., dissenting). See also Adams v. United States, 423 F.Supp. 578, 581 (E.D.N.Y.1976).

The differences between a detainer and a writ of habeas corpus ad prosequendum, in purpose, legal basis, and historical context, are so fundamental as to constitute each a separate, distinct avenue for obtaining custody of prisoners for federal prosecution.

A detainer is a formal notification, lodged with the authority under which a prisoner is confined, advising that the prisoner is wanted for prosecution in another jurisdiction. S.Rep. No. 91-1356, 91st Cong., 2nd Sess. 2, reprinted in (1970) U.S.Code Cong. & Ad.News, 4864, 4865. Long before the enactment of the Agreement, a detainer was treated as merely a request that the prisoner not be released until he could be taken into custody by the requesting state. In a sense, it was a request that the prisoner be placed on the "will call" shelf, and many prisoners labeled "will call" were never called for. On the other hand, the sending state was under no obligation to detain or deliver the prisoner except as it might choose to do so, a privilege maintained in modified form by Article IV(a) of the Agreement, which provides that the Governor of the requested state may refuse the request within 30 days after its receipt. The Agreement, as above indicated, added to the ancient practice the penalty of dismissal for failure to prosecute the prisoner obtained in response to lodgement of a detainer.

A federal writ of habeas corpus under § 2241 is by contrast a federal court order, commanding the presentation of a prisoner for prosecution or as a witness in a federal court. It is judicially controlled by the federal district court, which may issue it for the production of a prisoner when "it is necessary to bring him into court to testify or for trial." 28 U.S.C. § 2241(c)(5). Upon receipt of such a writ, state authorities deliver the prisoner in accordance with its terms and in compliance with § 2241. ⁸ If the court which issued the writ is satisfied that the prisoner's presence is no longer needed or will not be required temporarily, as occurred in this case following Kenaan's arraignment and his presentation of a guilty plea, it may order the prisoner returned to state custody.

Analysis of the abuses which Congress and the states sought to curb with the Agreement further illustrates the differences between the detainer and the writ. Described only as "uncertainties which obstruct programs of prisoner treatment and rehabilitation" in Article I of the Agreement quoted above, the abuses and their results were many. Prior to the Agreement, detainers were filed indiscriminately, often with no notification to the prisoner, on mere suspicion, and without procedural safeguards. Outstanding detainers frequently provided grounds for denial of parole, participation in special work, athletic and release programs, visiting privileges, and minimum security status. Normally, a prisoner was required to serve out his sentence in the first jurisdiction before being tried in the second, impeding chances for successful rehabilitation, hindering judges in rendering appropriate sentences, preventing concurrent service of sentences in the two jurisdictions and, as indicated in Article I of the Agreement, hindering parole and prison authorities in devising an appropriate rehabilitation program for the prisoner concerned. Long delays before trial in the second jurisdiction were prejudicial to the prisoner's defense as evidence was lost, witnesses disappeared, and memories faded. The mechanics of transfer were complicated by an absence of uniform rules and states were often reluctant to give up prisoners at all. ⁹ The Agreement was specifically designed to remedy these problems by clearing detainers against a prisoner through prompt disposition of charges in another jurisdiction.

A writ of habeas corpus ad prosequendum, however, has never been associated with any of the foregoing problems. As a court order, it is carried out immediately and is discharged when the prisoner is...