U.S. v. Kurt, s. 90-30358

• Decision Date: 12 June 1991
• Docket Number: Nos. 90-30358,90-30374 and 90-30400,s. 90-30358
• Citation: 945 F.2d 248
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wayde Lynn KURT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 248

945 F.2d 248

UNITED STATES of America, Plaintiff-Appellee, v. Wayde Lynn KURT, Defendant-Appellant.

Nos. 90-30358, 90-30374 and 90-30400.

United States Court of Appeals, Ninth Circuit.

Submitted June 12, 1991 ^*.

Decided Sept. 16, 1991.

Mark E. Vovos, Spokane, Wash., for defendant-appellant.

Robert S. Linnell, Asst. U.S. Atty., Yakima, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before BRUNETTI and RYMER, Circuit Judges, and SHANSTROM ^**, District Judge.

SHANSTROM, District Judge:

Appellant Wayde Lynn Kurt appeals three separate orders from the Eastern District Court of Washington. District Judge Quackenbush issued the first order on September 12, 1990, dismissing without prejudice Kurt's conviction for possession of counterfeiting paraphernalia. Circuit Judge David Thompson, sitting by designation, issued the remaining two orders on October 9, 1990, dismissing without prejudice Kurt's convictions for possession of an unregistered firearm and for bail jumping. All three of these orders were consolidated for the purpose of appeal on June 6, 1991. In each instance, the district court found violations of the Interstate Agreement on Detainers Act (IADA), Title 18, United States Code, Appendix III (1990). After analyzing the pertinent factors listed in Section 9 of the IADA, however, both judges held that the circumstances surrounding the IADA violations warranted dismissal without prejudice.

Kurt appeals each of the district court orders on the same issue: whether the district court abused its discretion under Section 9 of the IADA by dismissing the criminal convictions without prejudice after finding IADA violations. We affirm the separate district court decisions.

FACTUAL BACKGROUND

Not only do Wayde Kurt's appeals contain a single unifying issue, they arise from the same event. In a search conducted in late 1987, investigative authorities found a machine gun and counterfeiting paraphernalia in Kurt's possession. On January 12, 1988, the grand jury indicted him for possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1988). On February 9, 1988, the grand jury indicted him a second time for possession of counterfeiting paraphernalia, a violation of 18 U.S.C. § 471 (1988), and for counterfeiting, a violation of 18 U.S.C. § 474 (1988). After the district court released him on bond, however, Kurt failed to appear as notified in proceedings on the machine gun charge. On November 15, 1988, the grand jury indicted him for failure to appear, a violation of 18 U.S.C. § 3146(a) (1988).

Prior to his trial on any of these indictments, Kurt was arrested, tried, convicted, sentenced and incarcerated in Oregon on state charges separate from those federal charges pending in Washington. On February 10, 1989, while Kurt was serving his Oregon sentence, the United States Marshal placed a detainer against him. Not until November 30, 1989 did the Washington court issue a writ of habeas corpus ad prosequendum. That same day, the court arraigned Kurt and appointed counsel to represent him.

The U.S. Marshal held Kurt in the Franklin County Jail pursuant to a housing This order was not executed immediately. On January 15, 1990, Kurt wrote to the Clerk of Court for the Eastern District of Washington to complain about the lack of action on his transfer to Oregon. The letter was received by the Clerk on January 25, 1990. In the meantime, the U.S. Marshal did transfer Kurt to the Eastern Oregon Correctional Institution at Pendleton, Oregon. The Marshal returned him to Washington on February 21, 1990. The court did not issue a new writ for this transfer.

                agreement between the federal authorities and the county.   The jail had no library facilities available to prisoners.   District Judge Quackenbush later remarked in his dismissal order that heavy criminal dockets had severely taxed the available criminal pre-trial housing during the time Kurt was held there.   Consequently, when Kurt filed a motion for access to a law library on December 18, 1989, the court, after some contemplation, ordered him removed to the Eastern Oregon Correctional Institution.   The court ordered the move sua sponte on December 30, 1989 to accommodate Kurt's library needs--neither he nor the government had an opportunity to object at a hearing.   The order also set the trial date on the machine gun and bail jumping charges for April 2, 1990
                

Upon his return, Kurt immediately moved to dismiss the pending charges on the basis of an IADA violation. Specifically, Kurt cited the "anti-shuffling" provision found in Article IV(e) of the IADA. He argued his motion at the pre-trial conference on March 2, 1990. The court denied the motion and, on March 7, 1990, ordered Kurt transferred back to Oregon. Once again, the court ordered the return sua sponte without notice to Kurt or an opportunity for a hearing.

On April 4, 1990, Kurt was transferred to Washington for the third and final time. Judge Thompson tried him on the firearm and bail jumping charges five days later, and the jury found him guilty on April 11, 1990. Kurt's conviction on these charges came 129 days beyond his first transfer to the jurisdiction of the Washington federal court. By reason of excludable time pursuant to the Speedy Trial Act, 18 U.S.C. 3161(h)(8)(A) (1988), however, the court found no violation of Kurt's statutory speedy trial rights. On May 21, 1990, trial commenced before Judge Quackenbush on the counterfeiting charges. The jury found Kurt guilty on Count II of the indictment, possession of counterfeiting paraphernalia, but was unable to reach a verdict on Count I, counterfeiting. Once again, the court found no Speedy Trial Act violation. Throughout these cases, Kurt maintained his challenge to the courts' jurisdiction on the basis of well-documented violations of the "anti-shuffling" and 120-day deadline provisions found in Article IV(c) & (e) of the IADA.

After each of his three convictions, Kurt moved for Arrest of Judgment and Dismissal pursuant to Article IV of the IADA. On August 17, 1990, the parties and their attorneys appeared before Judge Quackenbush to settle the factual issues underlying the IADA violations. The court then prepared a draft of its Findings of Fact and circulated it to the parties. No objections challenging the court's findings were filed. On September 12, 1990, Judge Quackenbush incorporated these findings into an order dismissing the cause without prejudice. On October 4, 1990, Judge Thompson followed suit and also dismissed without prejudice.

In cross-referenced opinions, both judges found that the United States, as a receiving state, violated Article IV of the IADA. Although this aspect of the dismissal orders is not subject to review on appeal, the court's opinions deserve some attention. At no time did Kurt initiate his transfer to Oregon. By the same token, neither did the government. Kurt was transferred by order of the federal court. Both judges found that the transfers violated Article IV(e) mandating that the receiving state try a prisoner of a sending state before returning him or her. In addition, both judges found violations of Article IV(c) because the trials commenced beyond 120 days of Kurt's arrival in the receiving state. Neither judge found good cause for In addition to these findings, both judges analyzed the factors listed in Section 9(1) of the IADA before dismissing the cases. Section 9(1) provides:

                the delay.   All convictions were dismissed on the basis of these Article IV violations
                

In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the agreement on detainers and on the administration of justice.

Both agreed that these factors, when applied to the common facts, warranted dismissal without prejudice. Kurt now timely appeals each of the dismissal orders on the issue of whether the court erred by not dismissing with prejudice.

DISCUSSION

Congress enacted the IADA in 1970 to "encourage the expeditious and orderly disposition of ... charges [outstanding against a prisoner in another jurisdiction] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." 18 U.S.C. App. III, § 2, Art. I. The Act provides a cooperative procedure governing the temporary transfer of prisoners to dispose of untried charges through the process of lodging a detainer. See United States v. Dixon, 592 F.2d 329, 333 (6th Cir.1979), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979). Once a participating jurisdiction lodges a detainer in another participating jurisdiction where the prisoner is held, the prisoner can demand a speedy disposition of the charges. United States v. Reed, 910 F.2d 621, 624 (9th Cir.1990).

These procedures, beyond maintaining the principles of interstate comity, serve to protect the prisoner from the uncertainties inherent in untried charges that "obstruct programs of prisoner treatment and rehabilitation." United States v. Mauro, 436 U.S. 340, 351, 98 S.Ct. 1834, 1842, 56 L.Ed.2d 329 (1978) (citing 18 U.S.C. App. III, Art. I). They serve to prevent prosecutorial abuses of the detainer that potentially allow a prisoner to languish in a separate jurisdiction under the constant but uncertain threat of further prosecution. See, e.g., United States v. Ford, 550 F.2d 732, 737-39 (2d Cir.1977) (reviewing the effects of pre-IADA detainers), aff'd sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

Articles III and IV supply the teeth of the IADA. Once a detainer is filed against a prisoner, Article III allows the prisoner to demand a disposition of the charges within 180...