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
Decided Oct. 26, 1976
Argued Sept. 13, 1976.
In his main charge, Judge Cannella emphasized that the jury was to consider all of the circumstances which surrounded the transaction in determining whether Sears’ statements constituted threats under the statute. The trial judge again highlighted the importance of the surrounding circumstances in his supplemental charge. It is not sufficient, however, in proving a violation of
Finding no error in the trial court‘s supplemental charge, we must affirm the appellant‘s conviction. In doing so, we note that Judge Cannella wisely and compassionately suspended the imposition of sentence and placed appellant on probation for a period of three years.
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
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
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
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
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 a prime concern of the Agreement, it was also its aim to eliminate the uncertainties which obstruct programs of prisoner treatment and rehabilitation. Article IV makes it clear that the prisoner was not only to be tried promptly but that he would not be sent back until tried by the requesting jurisdiction. In this case both prisoners were sent back in December 1975, to state prisons with trial dates set for federal trials and were not brought back to the federal forum until late in April 1976.
III
The Government further argues that the United States adopted the Agreement only as a sending and not a receiving State. Article II(b) defines a “Sending State“:
‘Sending State’ shall mean a State in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to article III hereof or at the time that a request for custody or availability is initiated pursuant to article IV hereof.
Article II(c) defines a “Receiving State“:
‘Receiving State’ shall mean the State in which trial is to be had on an indictment, information, or complaint pursuant to article III or article IV hereof.
In short, the Government urges that the Agreement only applies to the United States when a state tribunal is seeking to try a federal prisoner in a state court. Such construction would of course simply eliminate the problem but there is nothing at all in the Agreement to support the interpretation now urged by the Government. Article II(a), as we have indicated, defines a State as “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 statute places the United States on the same footing as any State which is a signatory to the compact. United States v. Sorrell, supra, 413 F.Supp. at 140. There is admittedly nothing at all in the Agreement itself to support the distinction proffered by the Government. In fact a reading of Article II(a), (b) and (c) compels the conclusion that the United States is both a sending and receiving State.
The Government maintains that the motivation for the congressional enactment of the Agreement was such holdings as Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) which required the states to make a diligent effort to bring a defendant to trial even though he is serving a sentence in a federal penal institution. The Agreement, it is argued, provides a legal basis enabling the states to procure federal prisoners thus preserving the Sixth Amendment constitutional rights of these prisoners to a speedy trial. S.Rep.No.1356, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News 4864 (1970). The Government in its brief here states that “it appears that federal participation was not sought until the Supreme Court decided Smith v. Hooey, 393 U.S. 374 [89 S.Ct. 575, 21 L.Ed.2d 607] (1969).”8 The legislative history of the Agreement, however, establishes that the Department of Justice recommended the identical legislation in the 90th Congress; that it was passed by the House on May 9, 1968 but that the Senate failed to act.9 H.Rep. 1018,
In any event, aside from the fact that the Agreement as enacted fails to make the distinction now sought by the Government, Article VIII itself provides, “This agreement shall enter into full force and effect as to a party State when such State has enacted the same into law. A State party to this agreement may withdraw herefrom by enacting a statute repealing the same” (emphasis supplied). The Senate and House Reports specifically noted this language. S.Rep.No.1356, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News 4864, 4866 (1970); H.Rep. No.1018, 91st Cong., 2d Sess. 3 (1970). What the Government seeks here is a judicial repeal of at least part of the Agreement, a request more appropriately addressed to the Congress than to this court. See Dorszynski v. United States, 418 U.S. 424, 442, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).
The Government also urges that by adopting the Agreement the Congress could hardly have intended to annul or repeal the ancient habeas writ which is provided for by statute,
Finally, the Government relies on the proposed Criminal Justice Reform Act of 1975 (S.1), section 3201(a), which provides in part:
(a) Adoption of the Agreement by the United States—The United States solely as a ‘sending state,’ and the District of Columbia are parties to the Interstate Agreement on Detainers . . .
The report of the Senate Committee on the Judiciary on S.1 states that section 3201 the existing enabling act of the Agreement:
has been amended to clarify the intent of Congress by providing that the Federal Government is a participant in the Agreement only in the capacity of sending state. Federal prosecution authorities and all Federal defendants have always had and continue to have recourse to a speedy trial in a Federal court pursuant to 28 U.S.C. 2241(c)(5), the Federal writ of habeas corpus ad prosequendum. The Committee does not intend, nor does it believe that the Congress in enacting the Agreement in 1970 intended, to limit the scope and applicability of that writ.
While the Senate Committee in 1975 does not believe that the 91st Congress intended to fully adopt the Agreement it enacted in 1970, we agree with Judge Bartels that since S.1 has not yet been enacted by the Congress, it is irrelevant for the purpose of construing the Agreement. It is well established that the views of a later Congress as to the construction of a statute adopted by an earlier Congress have very little, if any, significance. United States v. Southwestern Cable Co., 392 U.S. 157, 170 (1968), 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968); United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962); Gemsco, Inc. v. Walling, 324 U.S. 244, 265, 65 S.Ct. 605, 89 L.Ed. 921 (1945); cf. N. C. Freed Co. v. Board of Governors of Federal Reserve System, 473 F.2d 1210, 1217 n. 23 (2d Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1973).
In sum, we conclude that the Agreement in clear and unequivocal language commits the United States to all of its terms including Article IV. Any construction which would cast the United States in the role of a limited partner is at odds with the entire spirit and scope of the Agreement. If the United States is to succeed in establishing that the Congress only intended to cover state detainers and not federal detainers, this would certainly represent such a major and substantial departure from the all embracing language employed
MANSFIELD, Circuit Judge (dissenting).
I respectfully dissent for the reason that the writ of habeas corpus issued by the Eastern District of New York was not a “detainer” but a valid order pursuant to
The majority, in my view, has failed to recognize and give effect to the significant functional and legal differences between a detainer and a federal writ of habeas corpus. A detainer, as its name implies, is an administrative notification lodged with a prison authority, advising that a certain prisoner in its custody is wanted for prosecution elsewhere and requesting that the prisoner be detained or held to face the out-of-state charge. See S.Rep.No.1356, 91st Cong., 2d Sess., 1970 U.S.Code Cong. and Admin.News, pp. 4864-65. The detainer is not an order commanding or obligating the custodian to produce the prisoner; it is merely a request, usually respected as a matter of comity between states, to detain the prisoner so that a representative of the requesting state may take custody, with the consent and cooperation of the holding state, and transport or release him to the requesting state for the purpose of facing the new charge. Prior to a state‘s adoption of the Detainers Act it usually did not surrender the prisoner to the other state until the termination of his incarceration in the holding state, since that state was not obligated, except to the extent that it expressly elected to do so by extradition statute or as a matter of comity, to produce a prisoner who was the subject of a detainer or writ of habeas corpus lodged with it by another state. See, e. g., May v. Georgia, 409 F.2d 203, 204 (5th Cir. 1969); Schindler, Interjurisdictional Conflict and the Right to a Speedy Trial, 35 U.Cin.L.Rev. 179, 185 (1966). Similarly the federal government was not under any such obligation, see Ableman v. Booth, 62 U.S. (21 How.) 506, 16 L.Ed. 169 (1858); Tarble‘s Case, 80 U.S. (13 Wall.) 397, 20 L.Ed. 597 (1872); Warren, Federal and State Court Interference, 43 Harv.L.Rev. 345, 353-59 (1930), except to the extent that Congress authorized a prisoner to be transferred to the requesting state, see, e. g.,
Unlike a detainer, a federal writ of habeas corpus ad prosequendum is a federal court order commanding the immediate production of a prisoner at a federal trial. Congress has expressly authorized the federal district courts, without qualification, to issue such writs for the production of a prisoner where “it is necessary to bring him into court to testify or for trial.”
Because state authorities have apparently always complied with the commands of such federal writs, the federal government has never, according to our research, been called upon to invoke federal supremacy. See, e. g., Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), where the Supreme Court stated “That the petitioner is held under the authority of a State cannot affect the question of the power or jurisdiction of the Circuit Court to inquire into the cause of his commitment, and to discharge him if he be restrained of his liberty in violation of the Constitution,” 117 U.S. at 249, 6 S.Ct. at 739 but went on to hold that comity required the federal courts to defer passing upon such questions until the applicant had exhausted his state remedies. See, generally, Developments in the Law—Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1048-49 (1970). Similarly in Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961), the Supreme Court, in holding that federal district courts have the power to issue writs of habeas corpus ad prosequendum extraterritorially, recognized that the existence of comity between sovereignties made it unnecessary to invoke the Supremacy Clause, stating:
“In view of the cooperation extended by the New York authorities in honoring the writ, it is unnecessary to decide what would be the effect of a similar writ absent such cooperation.” 364 U.S. at 621 n. 20, 81 S.Ct. at 344.
However, I have no doubt that if a state institution refused to obey a federal writ of habeas corpus ad prosequendum properly issued pursuant to
For present purposes the important point is that the Detainers Act applies only to those subject to detainers, not to persons surrendered pursuant to
The writ of habeas corpus ad prosequendum, as distinguished from a detainer, has
Nor was Art. IV of the Detainers Act, which permits a state lodging a detainer against a prisoner in another state or in federal custody to request and obtain production of the prisoner for trial unless disapproved by the governor of the sending state, intended to apply to proceedings under
That Congress, in adopting the Detainers Act, did not intend to classify federal writs of habeas corpus as detainers or to subject such writs to the limitations of the Act, is further evidenced by the following later statement of the Senate Committee on the Judiciary, issued when it expressly recommended clarification of the matter in the proposed Criminal Justice Reform Act of 1975 (S.1):
“Federal prosecution authorities and all Federal defendants have always had and continue to have recourse to a speedy trial in a Federal court pursuant to 28 U.S.C. 2241(c)(5), the Federal writ of habeas corpus ad prosequendum. The Committee does not intend, nor does it believe that the Congress in enacting the Agreement in 1970 intended, to limit the scope and applicability of that writ.”
Although this statement post-dated the adoption of the Detainers Act, it is significant for the reason that 12 of the 15 members of the Committee who issued it had been members who joined in the original report recommending adoption of the Detainers Act (Sen.Rep. 91-1356).
The Third Circuit‘s recent decision in United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), relied upon by the majority, is clearly distinguishable. In that case the court properly treated a Monmouth County, New Jersey, writ of habeas corpus as a detainer under the Detainers Act, holding that dismissal of a New Jersey charge against a federal prisoner obtained under such a writ would be mandated by Art. IV(e) of the Act if the plaintiff should prove that the state returned him to federal custody in Danbury, Connecticut, without trial. The essential distinguishing feature, of course, was that the New Jersey writ, unlike the federal writ in the present case, could not, independent of the Detainers Act, have effectively commanded the federal authorities at Danbury to produce or release the prisoner for trial in New Jersey. It could only function as a detainer or request under Art. III of the Detainers Act, and it was so treated by the court.
Thus nothing in the language or legislative history of the Detainers Act indicates any intent on the part of Congress to repeal or modify
Accordingly I would hold that where a federal court obtains the presence of a prisoner for pleading or trial by a writ of habeas corpus ad prosequendum issued pursuant to
Notes
The writ served to obtain Fusco was in the same form.YOU ARE HEREBY COMMANDED to have the body of John Mauro now detained under your custody, as it is said, under safe and secure conduct, in civilian clothes, before the United States District Court for the Eastern District of New York, at the United States Courthouse, in such courtroom as shall be designated, in the Borough of Brooklyn, City, State and Eastern District of New York, on the 19th day of November at 10 o‘clock in the forenoon of that day, for trial before said United States District Court for the Eastern District of New York upon an indictment filed in said Eastern District of New York against the said John Mauro charging him with violation of Title 18 United States Code, Section 401 and, at the termination of the proceedings in the said United States District Court on that particular day, that you return him forthwith to the Warden, Auburn Correctional Facility, Auburn, N.Y. under safe and secure conduct.