United States v. Mason, Crim. No. 73-85.

• Decision Date: 27 November 1973
• Docket Number: Crim. No. 73-85.
• Citation: 372 F. Supp. 651
• Parties: UNITED STATES of America, Plaintiff, v. John Franklin MASON, Defendant.
• Court: U.S. District Court — Northern District of Ohio

372 F. Supp. 651

UNITED STATES of America, Plaintiff, v. John Franklin MASON, Defendant.

Crim. No. 73-85.

United States District Court, N. D. Ohio, W. D.

November 27, 1973.

Frank Justen, Asst. U. S. Atty., Toledo, Ohio, for plaintiff.

John J. Weglian, Toledo, Ohio, for defendant.

OPINION

DON J. YOUNG, District Judge:

This cause came to be heard upon a motion by defendant John Franklin Mason to dismiss the indictment for failure to prosecute within the time prescribed as stated in the Interstate Agreement on Detainers (hereinafter referred to as Act) 18 U.S.C. App. § 1, 84 Stat. 1397.

The Act states in pertinent part that:

(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.

The chronology of events which give rise to this dispute are as follows:

September 7, 1972: Communication from the defendant was received by the Assistant United States Attorney, Toledo, Ohio, pursuant to Article III, Interstate Agreement on Detainers Act, 84 Stat. 1397, at 1398, informing the Government that the defendant was incarcerated in the Ohio State Reformatory, Mansfield, Ohio.

September 11, 1972: Defendant was transferred to the State of Michigan pursuant to the procedures in the Act, to stand trial for armed robbery.

February 2, 1973: Having been tried and found guilty of armed robbery, defendant was sentenced to a term of imprisonment in the Michigan State Prison.

February 6, 1973: Defendant was returned to Ohio to complete his sentence at the Ohio State Reformatory.

April 19, 1973: Defendant was paroled from the Ohio State Reformatory and returned to Michigan to serve the time remaining on his sentence.

The defendant contends the indictment must be dismissed since the Government has not brought him to trial within the 180 day time period after he notified the Government.¹ The Government on the other hand contends that the 180 day time period has not elapsed for two reasons. First, the Government argues that out of the 225 days between September 7, 1972 and April 19, 1973 only 81 days counted towards the 180 day time period stated in the Act since 144 days are tolled. The 144 days, from September 9, 1972, to February 6, 1973, are tolled because the defendant was standing trial in Michigan and therefore unable to stand trial in this Court. Art. VI(a). Secondly, the Government argues that when the defendant was transferred on April 19, 1973, from Ohio to Michigan the communication sent by the defendant on September 7, 1972 was void since Ohio was no longer the sending state within the meaning of the statute. Art. II(b). Therefore the time after April 19, 1973 cannot be counted toward the 180 day time period. These two propositions being true, the Government contends it is clearly within the 180 day time period and the indictment should not be dismissed.

The Act, unfortunately, does not appear to anticipate a three state situation where, as in the present case, the defendant originally incarcerated in the sending state notified the receiving state² and prior to the receiving state acting the defendant was transferred to a third state. This leaves the Court the task of determining the purpose and intent of the Act.

I.

Initially the Court agrees with the Government that the time period must be tolled while the defendant was standing trial in Michigan. People v. Stroble, 31 Mich.App. 94, 187 N.W.2d 474 (1971). This appears to be the only logical result, since if a person is standing trial in one state he cannot be expected to be standing trial in another state simultaneously. Therefore, the Court finds that the time was tolled for 148 days from September 11, 1972 to ...