U.S. v. Scallion
| Decision Date | 18 March 1977 |
| Docket Number | No. 74-4246,74-4246 |
| Citation | 548 F.2d 1168 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Claude John SCALLION, Raymond Lynn Buckelew, James Laney Jenkins and Judson Lee Drane, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Thomas W. Davenport, Jr., Monroe, for Scallion.
Thomas L. Robinson, Memphis, Tenn. (Court appointed), for Buckelew and Jenkins.
Robert W. Laster, Little Rock, Ark. (Court appointed), Michael T. Pulaski, Alexandria, La. (Court appointed), for Drane.
Gerald Isaac Sassoon, amicus curiae (on behalf of appellant Scallion).
Donald E. Walter, U.S. Atty., D. H. Perkins, Jr., Asst. U.S. Atty., Shreveport, La., Michael W. Farrell, Washington, D.C., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Louisiana.
On Amended Petition for Rehearing
(Opinion June 17, 1976, 5 Cir. 1976, 533 F.2d 903)
(Mar. 18, 1977)
Before BROWN, Chief Judge, THORNBERRY, * Circuit Judge, and MILLER, ** Associate Judge.
This matter is before us on an amended petition for rehearing by Scallion, filed July 23, 1976, the original petition for rehearing, filed June 30, 1976, having been denied. Because the issue raised by the amended petition is one of first impression in this circuit, namely: the applicability of the Interstate Agreement on Detainers ("Agreement"), the Government was directed to respond to the amended petition. The response was received October 22, 1976. On October 27, 1976, a motion was offered for leave to file an amicus curiae brief in behalf of petitioner, and, leave having been granted, the amicus brief was filed December 3, 1976.
Scallion was convicted, with others, in federal district court under 18 U.S.C. § 1343 and 18 U.S.C. § 371. On appeal, all convictions were affirmed (533 F.2d 903). One of the issues on appeal raised by Scallion was whether he was deprived of his Sixth Amendment right to a speedy trial by the "delay" in his trial from November 16, 1973 (the date of his first appearance before a U.S. Magistrate, at which time he demanded a speedy trial), until September 24, 1974, when trial began. We determined that the lapse of time involved was not "delay," much less "inordinate delay," pointing out that the record was replete with pretrial motions which generated responses by the prosecution, briefs, and hearings; that the prosecution had to arrange the appearance of numerous out-of-state witnesses; and that there had been no showing that the lapse of time impaired Scallion's ability to defend himself or jeopardized his other interests.
Defendant Scallion, pursuant to a writ of habeas corpus ad prosequendum ordered by the district court below and directed to the United States Marshal (or any of his deputies) and to the Warden, Ossining Correctional Facility, Ossining, New York (where Scallion was serving a sentence imposed by a New York State court), appeared in district court on December 17, 1973, 1 was arraigned and placed in jail in custody of the United States Marshal. On May 31, 1974, Scallion's counsel requested the assistance of the United States Attorney to enable Scallion to return to New York temporarily for a parole hearing for which he had become eligible. On June 13, 1974, the United States Attorney authorized the Marshal's Service to return Scallion to New York for that purpose, and on July 29, 1974, he departed for New York. On August 8, 1974, a second writ of habeas corpus ad prosequendum was ordered by the district court below directing that Scallion be delivered to the court at 9:30 A.M., September 23, 1974. He was actually returned in time for a pretrial conference on September 12, 1974, and trial began September 24, 1974.
Now, for the first time, Scallion argues that his indictment was of no force or effect and should have been dismissed with prejudice under Article IV(e) of the Interstate Agreement on Detainers, enacted by Pub.L. No. 91-538, §§ 1-8 (Dec. 9, 1970), 84 Stat. 1397; 18 U.S.C.A., App. (1976 Supp.) at 207-13. 2 Article IV in pertinent part reads as follows:
(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.
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(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, 3 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.
Specifically, Scallion argues that, in violation of Article IV(c), he was not brought to trial within 120 days of his arrival in the district court below on December 17, 1973, and there was no good cause shown in open court for continuance of his trial; also that, in violation of Article IV(e), he was not tried before his return to New York on July 29, 1974. Although the record supports Scallion's allegation that he was not tried before his return to New York on July 29, 1974, this return was at his own request in order to be present for a parole hearing. Accordingly, we hold that he is estopped from making this argument. The record also supports Scallion's allegation that he was not brought to trial within 120 days of his arrival on December 17, 1973, and that there was no good cause shown in open court for continuance of his trial. However, his argument on this point rests on an assumption that the Agreement applies to a habeas corpus ad prosequendum ordered by a federal district court.
The legislative history of the Interstate Agreement on Detainers Act ("Act") makes it clear that Congress did not intend the machinery established thereby to be the exclusive means of effecting a transfer of a prisoner for purposes of prosecution. Both the House and Senate Judiciary Committee Reports on the bill (H.R. 6951) state:
The agreement also provides a method whereby prosecuting authorities may secure prisoners serving sentences in other jurisdictions for trial before the expiration of their sentences and before the passage of time has dulled the memory or made witnesses unavailable. (Emphasis supplied.)
H.R.Rep. 91-1018, 91st Cong., 2d Sess. 2 (1970); S.Rep. No. 91-1356, 91st Cong., 2d Sess. 2 (1970); U.S.Code Cong. & Admin.News 1970, pp. 4864, 4865. Had there been an intent to make the Agreement exclusive and to, thereby, impliedly repeal 28 U.S.C. § 2241(c)(5), 4 the committees would hardly have used the word "a" to describe the method provided by the Agreement. Although Article IX provides that the Agreement "shall be liberally construed so as to effectuate its purposes," we are not persuaded that "liberal" construction means ignoring the plain language of the reports of both the House and Senate Judiciary Committees.
To fully understand the "purposes" of the Act, we quote from Article III:
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint: Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the State parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
(c) The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of...
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