U.S. v. Mauro

• Decision Date: 26 October 1976
• Docket Number: Nos. 183,184,D,s. 183
• Citation: 544 F.2d 588
• Parties: UNITED STATES of America, Appellant, v. John MAURO and John Fusco, Appellees. ockets 76-1251, 76-1252.
• Court: U.S. Court of Appeals — Second Circuit

Page 588

544 F.2d 588

UNITED STATES of America, Appellant, v. John MAURO and John Fusco, Appellees.

Nos. 183, 184, Dockets 76-1251, 76-1252.

United States Court of Appeals Second Circuit.

Argued Sept. 13, 1976.

Decided Oct. 26, 1976.

Charles E. Clayman, Asst. U.S. Atty. (David G. Trager, U.S. Atty., E. D. N. Y., Bernard J. Fried, Alvin A. Schall, Asst. U.S. Attys., Brooklyn, N. Y., of counsel), for appellant.

Kevin Ross, Kew Gardens, N. Y. (Stephen G. Murphy, Kew Gardens, N. Y.), for appellee Mauro.

John C. Corbett, Brooklyn, N. Y., for appellee Fusco.

Before ANDERSON, MANSFIELD and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge.

This is a consolidated appeal by the United States from two orders which dismissed indictments against two defendants because of the Government's failure to comply with the Interstate Agreement on Detainers, 18 U.S.C., App. The issue involved is one of first impression in this court.

On November 3, 1975, John Mauro and John Fusco were separately indicted in the Eastern District of New York on charges of criminal contempt of court in violation of 18 U.S.C. § 401. Both had refused to testify before a federal grand jury and at the time of their indictment both were inmates in New York State penal institutions. ¹ On November 5, 1975 separate writs of habeas corpus ad prosequendum were issued by a district judge of the United States District Court, Eastern District of New York, directing the wardens of each of the New York State institutions to produce the inmates before the federal court on November 19, 1975. On November 24, 1975, Mauro and Fusco were arraigned before Hon. John R. Bartels of the Eastern District of New York, and both pleaded not guilty. On December 2, 1975 both again appeared before Judge Bartels for the purpose of fixing a trial date. Mauro's counsel agreed to a March 17, 1976 date and Fusco's counsel accepted a February 4, 1976 trial date. In view of the crowded conditions at the Metropolitan Correctional Center, Judge Bartels ordered the defendants to be returned to state custody indicating that each should be "writ down" shortly before the federal trials. ²

On March 2 and April 14, 1976 respectively, writs of habeas corpus ad prosequendum were again issued for Fusco and Mauro who were produced in the Eastern District of New York on April 29 and April 26, 1976. Prior to their appearance each defendant had separately moved for dismissal of his indictment on the ground that the United States had violated Article IV(e) of the Interstate Agreement on Detainers since he had been returned to state custody without having first been tried on the federal indictments. In an opinion and order dated May 17, 1976, reported in 414 F.Supp. 358 (E.D.N.Y.1976), Judge Bartels granted Mauro's motion and dismissed the indictment. On May 19, 1976, he granted Fusco's motion to dismiss on the basis of his prior opinion in the Mauro motion. This appeal followed.

I

The Interstate Agreement on Detainers (Agreement) was enacted into law by the Congress in 1970 on behalf of the United States. It had already been adopted by 28 states and since then by all of the remaining states with the exception of Alabama, Alaska, Mississippi and Oklahoma. Its purpose and objectives are set forth in 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) further provides:

'State' shall mean a State of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; the Commonwealth of Puerto Rico.

The legislative history of the Agreement is not particularly enlightening probably because there was no opposition in Congress to its enactment. See 116 Cong.Rec. 38840 (1970). In essence Article III provides a mechanism for a prisoner in a party State against whom a detainer has been lodged by any other party State to request a final disposition of the untried charge within 180 days of his written request. By the same token Article IV provides a method for prosecutors to secure prisoners serving sentences in other jurisdictions for a prompt trial within 120 days after his arrival in the receiving jurisdiction. In explaining the need for the legislation Congressman Kastenmeier, its sponsor, stated:

The Bureau of Prisons has advised that a prisoner who has a detainer lodged against him is seriously disadvantaged. He is in custody and cannot seek witnesses or preserve his defense. He must often be kept in close custody and is ineligible for desirable work assignments. Thus he may lose interest in institutional opportunities because he cannot tell when, if ever, he will be in a position to use the skills he is developing. The agreement offers a prisoner the opportunity to secure a greater degree of certainty as to his future and enables prison authorities to provide better plans for his treatment.

On the other hand, the agreement also provides a method for prosecutors to secure prisoners serving sentences in other jurisdictions for trial, before the passage of time has dulled the memory or made witnesses unavailable.

Where, as here, the prosecutor initiates the statutory mechanism the defendant is not only entitled to a trial within 120 days but Article IV(e) provides:

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.

II

The United States on appeal, as it did below, seeks to avoid the clear impact of Article IV(e) by arguing that the defendants here were produced by the writ of habeas corpus ad prosequendum, which it urges should not be treated as a detainer under the Agreement. ³ The Government argues that the habeas writ here employed is the traditional and time-honored method employed by federal courts to obtain state prisoners for trial pursuant to 28 U.S.C. § 2241(c)(5). While this may be perfectly true, it does not follow that the habeas writ is not a detainer within the Agreement. The term is not defined in the Agreement. However, Congressman Kastenmeier, in proposing the Agreement, stated, "For the purpose of this legislation a detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to stand trial on pending criminal charges in another jurisdiction." 116 Cong.Rec. 13999 (1970). The same language is employed in the Senate Report. S.Rep.No.1356, 91st Cong., 2d Sess., 3 U.S.Code Cong. and Admin.News 4864, 4865 (1970). This is substantially the notification filed with the state prison wardens in the instant case. ⁴

The Government urges however that the habeas writ is mandatory and compels the production of the state prisoner and therefore is not comparable to a detainer. ⁵ However, as this court has recently noted, "While a writ of habeas corpus ad prosequendum may use mandatory language, the jurisdiction to which such a writ is addressed is relied upon to cooperate in turning over the defendant to the other sovereign." United States v. Oliver,523 F.2d 253, 258 (2d Cir. 1975). See also Carbo v. United States, 364 U.S. 611, 621, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). In the Oliver case, the first federal habeas writ granted in March 1973 was not executed because of the need of the Michigan prosecutor to expeditiously dispose of pending state proceedings and a second writ was necessary in July 1973. We conclude that the writ of habeas corpus ad prosequendum is a detainer entitling the state inmate to the protection provided in Article IV ⁶ and specifically to a trial before his return to the state institution. Any other construction would permit the United States to evade and circumvent the Agreement by simply utilizing the traditional writ. ⁷

In United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), where a federal prisoner was produced in a state court pursuant to a writ of habeas corpus ad prosequendum secured by a state prosecutor, the state similarly argued that since the request was made pursuant to a habeas writ and not pursuant to Article IV of the Agreement, its remedial provisions were not relevant. In rejecting this argument the Third Circuit held that the Agreement provided the exclusive means of effecting a transfer between two participating jurisdictions for the purpose of prosecution. Id. at 837; accord, United States v. Sorrell, 413 F.Supp. 138, 140 (E.D.Pa.1976). See also statement of Senator Hruska, 116 Cong.Rec. 38840 (1970), "By approving (the Agreement) we can insure that the United States will become part of this vitally needed system of simplified and uniform rules for the disposition of pending criminal charges and the exchange of prisoners."

It has been suggested that the habeas writ, since it is executed at once, cannot have the adverse effects upon rehabilitation which the Agreement was designed to avoid. While it is true that the expeditious disposition of pending charges in another jurisdiction was...