U.S. v. Sorrell, 76-1647

• Citation: 562 F.2d 227
• Decision Date: 22 August 1977
• Docket Number: No. 76-1647,76-1647
• Parties: UNITED STATES of America, Appellant, v. Leroy SORRELL.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 227

562 F.2d 227

UNITED STATES of America, Appellant, v. Leroy SORRELL.

No. 76-1647.

United States Court of Appeals, Third Circuit.

Argued Nov. 18, 1976.

Reargued En Banc May 12, 1977.

Decided Aug. 22, 1977.

David W. Marston, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Edward S. G. Dennis, Jr., Asst. U. S. Atty., Philadelphia, Pa., for appellant.

David A. Garfunkel, Philadelphia, Pa., Douglas Riblet, Defender Ass'n of Philadelphia, for appellee.

Argued Nov. 18, 1976 before VAN DUSEN and ALDISERT, Circuit Judges, and BROTMAN, District Judge.

Reargued en banc May 12, 1977 before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal by the United States from an order of the district court which dismissed an indictment against the defendant because of the Government's failure to comply with the Interstate Agreement on Detainers, 18 U.S.C.App. p. 230 (1977 Supp.) (the Detainer Agreement). We affirm for the reasons stated below.

I.

On March 23, 1976, an Eastern District of Pennsylvania grand jury returned an indictment against Leroy Sorrell for unlawful possession of a firearm. ¹ Sorrell was, at the time of his indictment, in the custody of the Commonwealth of Pennsylvania at the State Correctional Institution at Graterford, Pennsylvania, serving a state prison sentence of one to ten years. On March 23, 1976, the district court issued a writ of habeas corpus ad prosequendum, ² directing the United States Marshal and the Warden of Graterford Prison to produce the defendant at the United States Court House, Philadelphia, on April 2, 1976, for arraignment. On April 2, 1976, the defendant was arraigned at the above United States Court House and then returned to Graterford ³ by the United States Marshal. A second time, on April 19, 1976, Sorrell was brought before the district court for trial pursuant to a writ of habeas corpus ad prosequendum and was returned to Graterford by the United States Marshal after the trial had been continued on the request of defense counsel. Finally, the defendant was removed from state to federal custody for a third time on April 26, 1976, pursuant to such a writ when the case was again scheduled for trial. On this last date, Sorrell filed a motion to dismiss the indictment pursuant to Article IV(e) of the Interstate Agreement on Detainers, 18 U.S.C.App. p. 232 (1977 Supp.); 19 P.S. § 1431 et seq. ⁴ After oral argument on the motion, the district court filed an opinion ⁵ and order granting the defendant's motion and dismissing the criminal indictment. The United States appealed from that final judgment. By a November 4, 1976, judgment order, this court affirmed.

After the filing of a petition for rehearing en banc on January 11, 1977, the judgment order was vacated by an order filed January 27, 1977, and rehearing en banc was scheduled.

II.

The basic statutory framework of the Detainer Agreement has been summarized in United States ex rel. Esola v. Groomes, 520 F.2d 830, 833-34 (3d Cir. 1975), and need not be described here. See also United States v. Ford, 550 F.2d 732, 737-41 (2d Cir. 1977). However, the legislative purpose in adopting this statute is specifically set forth in Article I, which is designed "(t)o implement the right to a speedy trial and to minimize the interference with a prisoner's treatment and rehabilitation," Esola, supra at 833, as follows "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, while 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."

18 U.S.C.App. p. 230 (1977 Supp.).

III.

An issue in this case is whether a writ of habeas corpus ad prosequendum under 28 U.S.C. § 2241(c)(5) is a "detainer" within the meaning of that term as used in the Detainer Agreement. The legislative history of P.L. 91-538 (Act of December 9, 1970, 84 Stat. 1397), adopting the Detainer Agreement, makes clear that Congress intended the word "detainer" to mean any notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction. Each Form Order constituting the writ of habeas corpus ad prosequendum was clearly a notification that the defendant was wanted to face a criminal charge in the United States District Court for the Eastern District of Pennsylvania. ⁶

In Esola, supra, this court said at pages 836 and 838:

"First, the appellee contends that the five transfers in this case were pursuant to writs of habeas corpus ad prosequendum issued by a state court and honored as a matter of comity, by the Federal Bureau of Prisons. Since the request was not made pursuant to Article IV of the Agreement, it is argued that the remedial provisions could not be relevant. . . .

"The word 'detainer,' as it is used in the Agreement, is 'a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.' See Senate Report 91-1356, 91st Cong., 2d Sess., 2 U.S. Code Cong. & Admin. News, p. 4865. This definition of a detainer from the Senate Report finds support in the other legislative history of the Agreement and is consistent with the purposes of the Agreement.

"Although the legislative history of the federal enactment of the Agreement is not voluminous, perhaps because there was apparently no opposition to it in either the House of Representatives or Senate, the remarks of Representative Kastenmeier upon introduction of the bill make clear that he considered a detainer to be simply a notice filed with the confining institution that criminal charges from another jurisdiction were outstanding and that the prisoner was wanted in order to stand trial on those charges. 116 Cong.Rec. 13999 (remarks of Rep. Kastenmeier). ²⁴ The Committee Reports of both the House Judiciary Committee and the Senate Judiciary Committee follow Rep. Kastenmeier's language almost verbatim.

24. Rep. Kastenmeier 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 (May 4, 1970)."

Our holding that the first two writs of habeas corpus ad prosequendum (see page 229) were "detainers" under the Detainer Agreement is supported by United States v. Mauro, 544 F.2d 588 (2d Cir. 1976); see also United States v. Ford, supra at 736-37; but cf. Ridgeway v. United States, 558 F.2d 357 (6th Cir., 1977); United States v. Chico, Opinion of June 20, 1977, 558 F.2d 1047 (2d Cir. No. 939, Sept. Term 1976, Docket No. 77-1016. ^6a Scallion, supra, may be distinguished factually, while Mauro is substantially identic to this case and the result there parallels the result we reach here.

The dissenting opinion of Judges Adams, Rosenn and Weis complains that the effect of the legislative history of the Detainer Agreement, as adopted by Congress in 1970 (see pages 230-231), is "to cut back on" or restrict the "availability of" the writ specified in 28 U.S.C. § 2241(a) and (c)(5), which has been authorized since the 18th Century. But the Detainer Agreement only provides certain consequences which follow the use of such writ and it remains fully available to the courts. Congress is free to amend P.L. 91-538 by including a definition of "detainer" which would exclude the writ provided for in 28 U.S.C. § 2241(a) and (c)(5) just as it added to the previous language of the Detainer Agreement the definitions in 18 U.S.C.App. §§ 3 and 4 when P.L. 91-538 was adopted in 1970.

We cannot agree with Judge Garth's statement, 562 F.2d at page 239 of his separate opinion that "there are probably hundreds of federal prisoners, parolees, and probationers who will be eligible to have their federal convictions vacated under the majority's interpretation of the Agreement . . ." (Emphasis supplied.) Since this issue involves statutory interpretation of Congressional wording designed to require speedy criminal trials, there seems little justification for retroactive application of the statutory construction ultimately adopted, through collateral attack, where the defendant-prisoner has not requested a speedy trial prior to the trial. See for example Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975); U. S. ex rel. Cannon v. Johnson, 536 F.2d 1013, 1015-16 (3d Cir. 1976). ^6b

The reference in note 2 of Judge Weis' separate opinion to a 1975 report of the Senate Judiciary Committee concerning completely separate proposed legislation introduced into Congress in that year but never enacted is "a hazardous basis for inferring the intent of an earlier (Congress)", Benevento v. United States, 461 F.2d 1316, 1322, 198 Ct.Cl. 772 (1972). Similarly, the citation in note 5 of that separate opinion to a definition of "detainers" in a Handbook of the Council of State Governments written in 1949 seems to be of little relevance in interpreting a 1970 Act of Congress. ^6c See pages 230-231, setting forth the legislative history of...