*3 MOORE, Bеfore MANSFIELD and MES KILL, Judges. Circuit MANSFIELD, Judge: used Circuit to obtain custody of appellant for ar- raignment. April 1, On government lodging against appel- a detainer After its notice of filed readiness for trial as authorities in Massa- prison with state lant required by Rule 4 of the Plan for the incarcerated, chusetts, he was where Prompt Disposition of Criminal Cases of on March government, Two days later, that district. however, the prosequen- of habeas ad a writ used government filed present superseding appellant’s presence in the to obtain dum indictment, naming in addition one James purposes New York for District of Southern Flynn, thereupon P. who flight. took charges arising out of a arraignment 15, appellant April pleaded guilty. Tri- York, Middletown, robbery.1 New bank May was set for al requests prompt for a repеated Despite despite IV(c) the fact that Article before trial Shortly trial and commence, Agreement government Interstate on Detainers May requested the first *4 Act)2 (Detainers requires trial within what was to Act of become a long series of days granted delays, moving unless continuances are to adjourn the trial for 90 court, open imprisoned the days Flynn cause or until was apprehended, until September first, was not tried came appellant whichever and supporting its 17 months later. Because by more than motion sealed affidavit. Over appel- comply speedy vigorous to with the protests, the failure lant’s the motion was IV(c) Article requirements of and be- and trial granted trial was set for August 21. V(c) of the Act mandates that Following granting Article the cause of the adjоurnment, requested event the indictment be dismissed in such to be appellant returned to Mas- reverse, reluctantly custody, we with prejudice, with sachusetts so that he and his attor- the to dismiss indictment. could more ney conveniently directions prepare for trial and because his family was in Massa- appellant Federal authorities arrested chusetts. He was returned on June 11,1973, on Chicago on October two federal 1974. robbery by for bank warrants —one issued of New District York and one August, the Southern after the original judge, flight by Bauman, issued the District of Judge resigned for unlawful bench, from the The flight charge Massachusetts. unlawful assigned the case was to Judge Motley. appellant but was dismissed also faced vari- explanation, Without the trial date was charges filed ous state him in Mas- postponed to November 18. On November He was sachusetts. therefore turned over government again moved for an ad- Chicago authorities for journment days extradition to within which ap- charges, Massachusetts trial on state prehend appellant’s co-defendant, again by and the federal warrant issued supporting its motion by sealed affidavit. robbery District for bank Southern was On November 4 the defense moved to dis- lodged with the Massachusetts authorities the indictment on ground miss Appellant pleaded a detainer. guilty been appellant had denied a speedy trial. the Massachusetts and was sen- The district court denied the speedy trial years. granted tenced to concurrent terms of 8 to 10 adjourn- motion further ment, setting trial for February 1975. On March an indictment for robbery trial, however, bank was filed in the the date set for Southern On York, judge engaged of New and on was District March 24 a trial in another trial. corpus prosequendum writ of habeas ad the fact that we Despite was had recently em- charged Appellant robbery 1. with bank mit the above offenses in violation of 18 U.S.C. 2113(c), using § violation of 18 U.S.C. firearms 371. § robbery to commit the bank in violation of 18 924(c)(1), transporting U.S.C. a stolen auto- § 91-538, 1-8, No. §§ Pub.L. 84 Stat. 1397 mobile from Massachusetts to New York two (1970), reprinted App. in 18 U.S.C.A. at 111 days prior robbery to the bank in violation of (Supp.1976). conspiracy §§ 18 U.S.C. & com- prosequendum could not ad congestion constitutes a “detainer” that calendar phasized and stated trial “request” by a criminal and a delay prosecuting authority justify trial Act, circumstances the meaning such within the case to sponte transfer sua should author judge present dissenting in that case from trial,3 trial was judge prompt majority’s holding another a writ of habeas months, to June 11. four another postponed prosequendum corpus ad constitutes a “de- ob- its trial reiterated defense government here, however, tainer.” month following In the jections. appellant has conceded that in this case was New York undertook District Southern detainer, subject to a separate apart cases, begin June for civil program crash writ, filed it with from the Massa- sought to as- government When chusetts authorities.5 Whether the in- writ trial would be appellant’s whether certain dependently detainer, constitutes a there- affected, Judge Motley, sponte, sua set a fore, not at issue here. September 1975. De- date new Granting that appellant here was subsequently notified. counsel fense subject to a “detainer” and that he was government obtained August 8 the by the federal through obtained authorities Massachusetts for trial from appellant “request” as that term is used in Article writ of habeas ad of a second way Act, IV(a) of the under Mauro it is clear beginning At the of trial prosequendum. Detainers Act applies. Strictly again moved for a dismissal of appellant speaking, this case therefore presents only provide for failure to indictment *5 questions (1) two under the Act: whether motion, first, This like his was trial. speedy and, (2) so, the Act was violated if whether Appellant was convicted on all denied. such violation warrants reversal of the con was sentenced to concurrent 5- counts and viction below. government Beсause the ar Judge Motley recommended year terms. strenuously gues the writ of habeas allowed to run the federal terms be corpus cannot constitute “request” a concurrently with the Massachusetts state Act, however, IV of the Article we will appellant already serving. terms with a review of begin the reasons for our disagreement with the government’s posi DISCUSSION tion. uphold appellant’s Because we government’s The argument upon rests a Act, under the Detainers we need claims IV(a) in Article proviso that, to the effect Many his other claims.4 of the not discuss receipt by appropriate after state authori- by government the treated here questions request from jurisdiction ties of a another recently were settled in circuit open this as custody prisoner, of a there shall be a Mauro, decision in United States v. by our 30-day waiting period during which (2d 1976) Cir. where we held F.2d governor sending of the may state disap- the Detainers Act the that under prove request and thus in by is bound the statute’s definition effect dishon- States sending and a it.6 If a habeas writ receiving it as both a or Were treated as a argument that the writ of habeas “request,” goes, “State” effect Drummond, commonly 5. Warrants are used 511 F.2d as detainers. 3. United States Note, denied, See 48 Colum.L.Rev. (2d Cir.), 1190-91 & 423 U.S. cert. nn.6-7 L.Ed.2d 65 S.Ct. proviso 6. The text of the reads as follows: further, provided “And That there shall be a arguments, his Detainer Act In addition to period thirty days receipt by after government appellant failed to claims appropriate request authorities before the be notice of readiness for trial of its second file a honored, period within which the Governor required by six months as indictment within sending may disapprove of the the re- Prompt Disposition quest temporary Rule 4 of the Plan custody availability, upon upon the Southern District of New Cases of either his own Criminal motion or motion prisoner.” of the and failed to accord him a trial as York IV(a). Article required the Sixth Amendment. repeal of 28 partial a sub silentio Detainers Act was originally be would drafted a fed- 2241(c)(5), which authorizes response § U.S.C. to a variety problems arising a state custodian court to command eral of the then unregulated system out of de- authority, to federal prisoner over a turn commonly tainers used where one or more delay right or the presumably jurisdictions charges had outstanding partial repealer Sincе disapprove.7 prisoner against jurisdic- held another inferred, lightly should that section that system, tion. Under once one of the States, v. United 185 U.S. Rosencrans see jurisdictions had tried and convicted him (1897), L.Ed. 708 17 S.Ct. jurisdictions, the other instead trying writ should not be held goes, the argument charges, on their would simply him file de- and therefore the “request,” constitute prison tainers with authorities holding freed from the here should be government The detainers him. would to' notify serve of the Detainers Act. limitations authorities prison charges government’s argu Although the elsewhere. first blush to have might appear at ment prisoner’s Upon completion of the first history appeal, theoretical some term, jurisdiction the second prison could Act indicates that the Arti purpose bring the defendant to trial on its own merely pre aimed at IV(a) proviso cle and, should a conviction be obtain- existing respect law serving ed, jurisdictions desiring still other press transfers, gover under which the interstate charges might then file detainers with the might refuse to sending state nor where he was next prison incarcerated. state, to another turn over disadvantages potential abuses authorities. distinguished from system were many.8 of this Prison authori- However, of the reach of that regardless ties often accorded detainers considerable us, this issue is not before proviso —and weight making decisions with respect to of Massachusetts has the Governor since terms and conditions of the prisoner’s honor the federal writ of refused to never release on parole. incarceration and Some- corpus commanding thаt Ford be habeas *6 would automatically times be the structure and review of produced —a maximum security.9 held under Sometimes of the Detainers Act makes it purposes ineligible for special pro- he would work provi its abundantly clear that programs, athletic release for grams, visits apply were intended to to the federal sions funerals, Act. death beds or spe- under the to relatives’ or government as “State” 2241(c)(5) provides: Bennett, 7. 28 (1958); Ounce,” § U.S.C. “The Full 48 Last 1959); Comment, (June 20 The De- Fed. Prob. “The writ of habeas shall not extend System Right Speedy Trial, (5) and the to a to a tainer unless —. . . It is neces- sary bring Note, testify (1964); him into court to or for 535 31 U.Chi.L.Rev. Convicts— trial.” Right Speedy to a Trial and the New De- Statutes, Rutgers (1964); 18 L.Rev. 828 tainer system 8. The detainer has evoked a considera Schindler, Interjurisdictional Conflict and thе See, ble controversy. amount of e.g., critical Trial, Speedy Right 35 U.Cin.L.Rev. 179 Hincks, Comity The Need for in Criminal Ad Note, (1966); Detainers the Correctional ministration, (July-Sept. 1945); Fed. Prob. 3 Process, 417; Note, U.Wash.L.Rev. 1966 Effec- Bennett, The Correctional Administrator Views Guaranty Speedy aof Trial tive for Convicts in Detainers, (July-Sept. 1945); Fed. 8 Prob. Per Jurisdictions, (1968). 77 Yale L.J. 767 Other ry, Effect Sentencing Policies, of Detainers on 1 Note, See, e.g., 417, 1966 Fed, 418 Wash.U.L.Q. 9. (July-Sept. 1945); Heyns, Prob. 1 Maroney, F.Supp. In United States v. n.10. 194 System, Detainer in a State Correctional Fed. 154, (W.D.Pa.1961), 19-year 156 old defend- (July-Sept. 1945); Bates, Prob. 13 The Detained ant was sent to “maximum medium” Adjustment, Prisoner institu- and His Fed. Prob. 16 20-year (July-Sept. 1945); Note, tion while his old co-defendant was The Detainer: A Prob youthful Administration, lem in offenders, Interstate Criminal sent to an institution for 48 (1948); Donnelly, solely charge pending Colum.L.Rev. 1190 The Con bеcause of a Parole, 26, necticut Board of 32 Conn.B.J. 45- former. 738 ed security facilities.10 many Often as 50% of minimum all
cial
detainers
granting
lapse
of were allowed to
on
precluded
prisoner’s
detainers
re-
lease,
any
these
serious
Despite
attempts
conse-
without
parole.11
prosecution
at
any law
virtually
jurisdiction
enforcement of-
by the
had
quences,
filed the detain-
policeman,
judge—
or
er.13 There
ficer-prosecutor,
were
cases in
even
which the
any procedural
only
reason the
had
a detainer
detainer
been
could file
filed was
severity
indictment
to increase the
prisoner’s
No
prerequisites.12
sentence.14 Thus
imposed major
formal notification
detainers
other
Indeed,
unjustifiable
it
estimat-
required.
hardships
prisoners,
and,
genеrally
Candelaria,
See, e.g.,
making
prima-facie
States v.
United
131
out a
case.
Indeed
(because
797,
(S.D.Cal.1955)
F.Supp.
of de-
799
many police departments and sheriffs can file
tainer,
trusty status, parole,
defendant denied
merely
suspicion.
them
No matter what
work,
assignments);
good inside work
outside
basis, they
operate
prevent
all
alike to
Maroney,
154,
F.Supp.
194
States v.
156
parole, intensify custody precautions, and in-
(outside
(W.D.Pa.1961)
work and
inside
crease tensions.”
Baker,
assignments); State v.
Crim. No.
work
Bennett,
8,
(July-Sept. 1945).
Fed. Prob.
9
See
Ohio,
Cty.
30,
(C.P.
March
85611
Hamilton
313,
People Bryarly, 23 Ill.2d
also
v.
178 N.E.2d
rights, good
1966) (federal
farm
honor
behavior
(1961) (detainer despite
326
announced inten
Note,
1190,
job privileges);
48 Colum.L.Rev.
prosecute);
tion of state not to
Crow v. United
(trusty status);
(1948)
Donnelly,
1192 & n.19
States,
(8th
1965) (detainer
739 judge on De- out Agreement long sentence, meted adoption to prior taking the could tainers, nothing account, other offenses into there was there was noth- prevent ing to other jurisdictions, them. do about after tried and they had convicted the defendant forming addition, pending charges pending charges, on the from punishing the might a detainer themselves the basis of further those defendant offenses.15 impede the of a development significantly Since, by the nature system, of the detainer punish- prisoner’s for the program coherent would the sentences be served consecutive- various Often the ment and rehabilitation. ly, the would then serve a total criminal single out of a charges would arise longer than sentence intended by the within a occurring evеnts or out of episode sentencing judge.16 first Similarly, parole permitting time. Instead of period short prison boards authorities found it diffi- sentencing and rehabilita- coordination of cult to formulate the prisoner’s rehabilita- inhibited tion, system often the old detainer they since program, tive were forced to act sentencing and effective rehabilitation. fair knowing whether the prisoner sentencing judge, first a defendant The convicted would be on the other pending lodged, a detainer had been against whom charges.17 disregard whether to decide would have alleged offenses same uncertainty the other This also often adverse- to take those of- ly prisoner’s the sentence affected lengthen attitude towards offenses, The other if his own into account. rehаbilitation. No fenses matter how well clearly be in deter- might would relevant behave and how proven, he zealously he mining might whether offense which towards rehabilitation, work his own the first was an no subject way, sentence there was as as long be a detainer had length lodged what custo- pending against isolated incident been him, necessary for the dy might whereby defendant’s he could count on release within a hand, if the given period.18 other system rehabilitation. also tended to facing problems range program. 15. For a discussion sen- such a We have no business system, tencing judges annoy employers by importuning under the detainer see them for 3, Hincks, (July-Sept. 1945); job Fed. Prob. 3-6 having for an inmate and then not 8, Bennett, 1945); (July-Sept. up promised.” Fed. Prob. 8-9 inmate show as 11, (July-Sept. 1945); Bates, 16, Perry, (July-Sept. 1945). 11-12 Fed. Prob. Fed. Prob. 17 It Batеs, 1945); (July-Sept. prison parole 17 Don- Fed. Prob. this reason was for offi- nelly, 32 46 Conn.B.J. cials were the forefront of the movement to See, system. Bates, e.g., the detainer reform In United 16. See 1966 Wash.U.L.Q. Bennett, supra; (July-Sept. 1945); 8 Fed. Prob. Candelaria, F.Supp. (S.D.Cal. 131 States v. 797 (June 1959) (Director, Fed. Prob. Federal 1955), originally had the court sentenced the Prisons); Heyns, (July- Bureau Fed. Prob. 13 years. term of five When a defendant to a 1945) (Director, Michigan Sept. Department of and it detainer was filed became evident Corrections); Donnelly, (1958) 32 Conn.B.J. 26 going prosecute de local authorities (Member, Parole). Connecticut Board crime, again the same court on fendant urged early Bureau of Federal Prisons as its own motion reduced sentence government 1963 that become a days. Agreement. Note, party Rutgers to the See 856 n.236 L.Rev. Hincks, (July-Sept. 17. See Fed. Prob. Hincks, (July-Sept. 18. See Fed. Prob. Note, 1945); 1192 & 48 Colum.L.Rev. Note, 1945); Rutgers L.Rev. 836 & n.63 Note, (1948); n.18 Wash.U.L.Q. Note, (1964); 77 Yale L.J. & n.22 explained: Jersey’s New Commissioner Bates *8 (1968). Commissioner Bates recounted one ex- indispensable ele- “One of the essential example: treme parole program good is ments of that a arranged the case of “I recall a man who came before should in advance of release. be parole prison employ- of at in parole the board a New must be York board assured of pending had no less bona fide to the who than 17 warrants ment which is and suitable him, released, forging being most of them for man and also it must satis- small Undoubtedly philosophy home fied that he is have as a as checks. had been, forged placed possible If the after he the first one and circumstances. horse, proceeds wrong not know whether the man is to on the board does that he not, get punished to ar- serve more time it difficult much more wouldn’t for two 740 prompt sen- on possibility pending of concurrent trial charges, such
eliminate in vari- charges even when the hampered transfers were tencing, by a of a lack of the all stemmed out jurisdictions of ous set rules as to uniform the mechanics of or occurred within a episode same criminal Arrangements such transfers. have would of time.19 period short for payment to be made of the cost of transfers, prisoner upkeep, pursuit and re- Moreover, subject to a de- prisoner covery escape in the event of prompt prepar- in handicapped delay tainer guarantee return.22 There was no to the which it charge upon of the ing trial sending receiving state state would delay, all cases of As in was based. try and return the promptly die, might disappear, evidence witnesses —or Indeed, all. him at at state return least one fade. While the could state and memories participate in refused to such be- transfers preserve it for an gather its evidence tendency a part receiving cause of on the trial, prisoner, in an- confined eventual jurisdictions not to return the borrowed was often to do jurisdiction, unable other prisoners.23 he afford so, if could not particularly Indeed, he counsel.20 sometimes
retain remedy problems It was to these even be informed that would present Agreement Interstate on Detainers against him.21 adopted 1970 on behalf of the United Finаlly, jurisdictions even when all con- States and the District way Columbia willing permit Agreement were otherwise Interstate cerned on Detainers Agreement transfer to accord the a Act.24 The temporary Act adopted by the kept up 417, 423-24; Note, than for one and he checks 1966 Wash.U.L.Q. 77 Yale finally apprehended. 767, (1968). process until When L.J. 769 course, parole, granted he had to meet warrants in turn he wasn’t of these each See, States, e.g., Fonts v. United 253 F.2d lucky judge as some because first 215, Cir.1958); Taylor States, (6 218 v. United tough he met was a one and sent him whom 183, 259, U.S.App.D.C. (1956); 98 238 F.2d 261 prison again for two and a half to back General, parte Attorney ex Ex rel. 255 years, only then the but man had 16 five 443, 158, (1951); Pellegrini Ala. 52 So.2d 161 v. left to meet. If be his warrants that’s to fate Wolfe, 359, 366, 162, 225 Ark. 283 S.W.2d 165- them, though it doesn’t look as he on each J., (1955) (Robinson, Schindler, dissenting); 66 proving to have the chance of that he is ever 179, (1966); 182 35 U.Cin.L.Rev. gers n.10 18 Rut- rehabilitated and I if been doubt he ever has 828, (1964). 844 L.Rev. be.” will 16, Bates, 1945). (July-Sept. Fed. Prob. 16-17 22. Director Bennett noted in 1959: un- “While Milner, Ohio.Com.Pl., State v. 78 procedures Ohio present prosecutor 19. See der in one 189, (C.P. 149 191 L.Abs. N.E.2d impris- for trial state can secure an offender 1958); Note, Cty. Rutgers Montgomery 18 state, requires special oned in another this 828, (1964); Schindler, 849 35 L.Rev. U.Cin.L. authority contract with incarcerating executive of the 767, 179, Note, (1966); state, 182 77 Yale L.J. Rev. a method burdened with so (1968). It that this tape 770 n.26 has been noted & that it is much red nett, seldom Ben- used.” may prosecutors 20, even deter from accord- (June 1959). fact ing 22 Fed. Prob. See also trial, early prose- Note, 828, since Rutgers defendants L.Rev. 18 849 merely will result in concurrent sen- cutions tences, delayed prosеcutions whereas cannot. Note, Rutgers 828, 23. See 18 L.Rev. 849 & Comment, 535, 31 U.Chi.L.Rev. 540—41 See (1964). n.176 history promulgation 24. A brief States, See, e.g., Nickens v. United 116 U.S. Agreement given Interstate Detainers is 338, 808, (1963), App.D.C. 323 F.2d 813 cert. Bennett, (June 1959). Prob. 20 Fed. denied, U.S. 13 379 85 S.Ct. L.Ed.2d J., (later (Wright, Taylor (1964) concurring); The Joint Committee on Detainers enti- 178 States, U.S.App.D.C. tled “Committee Detainers and 98 238 F.2d Sentenc- Provoo, (1956); ing Multiple of Persons and Release Accused of United States v. sponsored by mem., Offenses”), (D.Md.), aff’d 350 U.S. Council of State F.R.D. 857, Governments, (1955); principles issued a statement 76 S.Ct. L.Ed. 761 Com and, ment, (1964); in 1955 and 31 U.Chi.L.Rev. 537 n.14 a series of Schindler, (1966); proposals. proposals 35 U.Cin.L.Rev. Drafts of the were sub- Note, Note, Rutgers (1964); sponsored by L.Rev. conference mitted to a Coun-
741 interpretation of with a method Our of the prisoner the Detain provided outstanding Congress’ and should reflect cleаring purpose, detainers ers Act as prosecutors with provided in foregoing him and the history, which revealed governing temporary set of rules comprehensive provide a uniform towas and coher of the for trial. Under purposes multiplicity transfers to a problems ent solution of notify a prison must authorities Agreement, prior to the adoption had of the Act immediately any of detainers prisoner prosecutors, prisoners, judges, prison beset must of against him and inform him lodged authorities, parole and boards alike under Agreement. Article the rights under system. detainer old Under the Act a the the demand right him affords then III expeditious can force the prisoner disposi detain- charges underlying outstanding of detainers tion and their un demand, the response such a In er. charges. Similаrly prosecutors derlying can of the custody offer authorities must prison easily prisoners trial; obtain more for lodged that have to the authorities prisoner prison parole and and judges authorities V(a). latter If the Art. detainer. rationally punishment can more administer custody, indictment accept refuse rehabilitation. Whether and or not the Act be dis- is based must the detainer which apply to a case where should the sole feder V(c). in- If with Art. prejudice. missed is the al intervention of a habeas issuance try custody, they must they accept stead see, writ, e.g., Mauro, United States v. 544 con- days, 180 unless a within prisoner (2d Cir.1976), the speedy F.2d trial pro Art. open in court. granted tinuance surely apply must visions a state 111(a). Ford, against whom a like federal detainer lodged years. To hold thаt governs initiated requests Article IV IV(a) precludes to Article proviso applica and part, In IV prosecutor. Articles by the provisions of those tion such a case would problems previously alleviated the V the Act on its to stand head. interjurisdictional transfers plagued had com Trial must be trial. purposes IV(a) proviso The Article plays a days (plus continuances within 120 menced general minor role in the Act’s very struc court) granted open good cause problems ture. One involved in for as as expeditiously returned mulating a workable procedure transfer Article V IV(c) V(e). Arts. possible. among preserve rights states was to states’ handling expenses governs the also extradition, right to refuse and it is this part imposed the limitations escape. IV(a) proviso the Artiсle embodies.25 corollaries necessary IV constitute Article dispute there is some While as to the extent III, with imposed Article since those right a state’s to refuse to comply with a prosecutors IV limitations the Article out writ of habeas prosequend ad be able to avoid limitations would um,26 there is evidence no that the Article prison merely by arraigning III Article IV(a) proviso adoption by Congress and its granting a any intention of er trial, augment re were intended to thereby circumventing the or diminish that prompt any Agreement. right in it way; appears rather quirements Mauro, Compare United States v. Governments, 544 F.2d American Correc- cil of 76-1251, (2d Cir.1976) (Nos. at 596 76- Association, Probation and the National tional J., Schindler, 1252) (Mansfield, dissenting), and Association, York Joint New Parole (1966), 191-92 & n.46 35 U.Cin.L.Rev. Coopera- Legislative on Interstate Committee Mauro, supra States v. at 592 and Com- first, approved. Two tion. drafts ment, (1964). U.Chi.L.Rev. State,” “Disposition Detainers Within Supreme the issue. Carbo reserved Court has proposed the resolu- a model statute for States, n.20, v. United 364 U.S. juris- single problems detainer within tion L.Ed.2d While S.Ct. diction. opinion present adheres to his author Mauro, See 31 U.Chi.L.Rev. position we need not decide the question here. *10 prior preserve prior to to trial. merely provision, however, intended The they were respect to interstate transfers. is which intended to avoid the disruptions law in prisoner’s a by rehabilitation occasioned re- hypo to are asked take a Thus we jurisdictions, transfers peated between non-existent conflict possibly thetical Here, thus for benefit and is waivable. рrovision Act which a minor between requested himself appellant the transfer (the Art. transfer mechanics relates to doing by objection so waived his to it (28 federal law IV(a) proviso) prior IV(e)29 Article under use it as 2241) and to the touch U.S.C. § interpretation IV(c), however, an of the rest of Article in provides stone for operation that would vitiate its that: the Act addition detainers, since it affects federal insofar as shall be commenced within one “[T]rial are virtually all federal transfers conducted twenty days hundred of the arrival This, turn, in to the writ.27 would pursuant prisoner State, in the receiving but substantially impair operation cause in open court, shown whole, as a since federal Agreement detain or being his counsel prisoner present, the large percentage a of all detainers ers form having jurisdiction court of the matter choice, outstanding.28 this are Given we grant may any necessary or reasonable that, to hold whether or not a constrained continuance.” prosequendum ad habeas writ of Although appellant right waived his not to “detainer,” a see constitutes United States trial, prior be returned he did not there- Mauro, supra, has once a detainer right waive his to a by speedy trial. state lodged against a been contrary, beginning shortly after his arrest request writ constitutes “written habeas he repeatedly insisted on a prompt trial. custody” meaning within the temporary Almost immediately after his arrest he sent Article IV of the Detainers Act. to the United Attorney letter States re- Turning govern to whether the that he be questing expeditiously tried as аs in ment violated limitations of the Act objected He possible. to each continuance case, IV(e) provides: this Article delay in the or trial when he was afforded indictment, on any object “If trial is not had opportunity an and twice moved information, or complaint contemplated on trial grounds. dismissal His prior hereby prisoner’s being to the re- to be request returned to Massachusetts original place to the imprison- only turned was made custody after it became evi- hereof, pursuant V(e), ment to article that trial be substantially dent would de- indictment, information, such or com- layed government’s at request. any not be of or plaint shall further force Custody appellant pursu- obtained effect, and the court shall order enter an the writ April ant to on Appellаnt dismissing prejudice.” the same with September 2, 1975, tried was not until more argues government Appellant that the vio- months beyond expiration than 13 provision by returning lated this July him of the 120 days permitted custody IV(c). Massachusetts June Article question, there- government has example by Heyns 27. The here so conceded. used as an Director at symposium, the 1945 was similar: Of 109 de- Note, n.73 28. See Yale L.J. 775 & filed, filed tainers 46 were federal officials (1968). spotty are Available statistics but illus- Heyns, (42%). (July-Sept. Fed. Prob. 15 n.l example, For of 96 detainers trative. 1945). prison, leading Illinois filed filed in Comment, government (54%). the federal In this case we need not decide whether the & n.30 U.Chi.L.Rev. express preference failure of a government the federal first half place trial, his incarceration responsible for 70 out of out-of-state dе- statutory through ignorance right either of his Note, (32%). Rut- tainers filed California otherwise, would nevertheless constitute a gers n.238 L.Rev. 857 & right. of that waiver Michigan Prison record for at Jackson *11 11, trial postponed was the to June 1975. 120-day period the Sub- fore, is whether granting sequently, of “neces- because of a through program the under- extended continuances, good cases, “for the court to dispose of civil taken or reasonable” sary court, or judge the trial sua open sponte in set a new trial shown cause 2, being present.” September date 1975. None of these counsel his delays, together which total over nine 28, 1974, May originally set was Trial months, “necessary,” “reasonable,” were or response 120-day period. within well cause” within the good meaning “for for a continu- request government’s to the IV(c). Article attempt apprehend ap- to to in which ance however, co-defendant, was trial pellant’s only Not delays unjusti were the pro- August 1974. The to postponed fied, granted but two of the three were not court, both open with ceeding place took court, open the defendant or his “in counsel The present. his counsel and defendant being present.” adjournment Both the ad- requesting reasons government’s 18, 1974, 21 to August November from and forth in a sealed affida- were set journment adjournment from June 11 to Septem not court. While we do with the filed vit granted sponte sua ber with public interest would be that believe any type hearing. of formal have out We that of the contents of by disclosure served emphasized, outside of the previously cоn affidavit, reviewed it and hold that we have Act, importance Detainers text of the “necessary” was and “rea- continuance granting the opportunity defendant an good cause.” granted was “for sonable” granting heard before to be an extended to Feb- delay from November 18 later The criminal trial continuance. United States 18, 1975, supported by sealed also ruary Didier, (2d F.2d Cir.1976). v. court, granted open and also affidavit Detainers Act imposes require similar justified.30 similarly similar ments for reasons: unless the de however, delays, remaining an given opportunity partici fendant is to Bau justified. Judge When be so cannot rights trial pate, speedy may his be whittled and the case was transferred resigned man away non-adversary context of ex post Motley, the trial date was Judge govern between the parte communications 21 to November August from poned court. and the We therefore hold ment Part of this de explanation. rights appellant’s speedy to a by the trans have been occasioned lay may IV(c) Article of the Detainers Act under however, larger part, case. The fer were violated here. assump for on only be accounted can question left with the We are Motley’s calendar was al Judge tion such violations warrant reversal of whether stated, previously have full. As we ready V(c) convictions below. Article responsi circumstances it is the such Act dictates the answer: Detainers judge reassign cases to bility of the trial right to a the event that an action on the their defendants assure “[I]n Drummond, indictment, information, complaint or United States trial. denied, Cir.), of which the detainer has been (2d cert. the basis F.2d brought not lodged is trial within the 46 L.Ed.2d S.Ct. U.S. in article III or article February period provided the trial IV Similarly hereof, appropriate juris- mo court of the government’s after the second set date indictment, continuance, where the judge found diction informa- for a the trial tion and, tion, complaint has been of another trial shali in the middle herself judge dismissing an order the same with reassigning the case to a enter instead trial, any detainer based prompt thereon prejudice, the defendant a to accord able way requirement of sealed affidavit where circumstances We do not believe parte warrant, merely prohibit ex open IV(c) be shown in but cause Article sponte preclude proceedings sua continuances. intended to court was or effect.” to be his any family. to be of force The request shall cease granted. Despite return, this (Emphasis supplied). the Govern- ment was apparently ready proceed im- if such might Whatever be our conclusion mediately in New York, a notice of readi- exist,31 language not provision did having been ness April 1, filed on mandatory on this court. actually enacted Ford was alone in reverse the conviction and We therefore Middletown April 3, robbery. of the indict- superseding remand the case for dismissal indictment was obtained to include prejudice. ment with James
Flynn, fugitive. Again Ford came to MOORE, (dissenting): Judge plead, again Circuit New York to and requested he a return to Massachusetts. Trial was set impressed Judge greatly by I am Mans- 28, May for learned and exhaustive treatise field’s most of, for, the history raison d’etre It be may argued on well we that should not Agreement the enactment Interstate be concerned the gravity of Ford’s Act. alleged on Detainers crimes. Nor is this the time or place to debate wisdom of speedy trial However, turning to the facts of case legislation enacted any provision review, appellate I before us on find that way judges available implementa- for its jury Judge Motley, after a trial before However, appellate tion. from our ivory (1) Ford appellant Richard was convicted of tower, ought we at least to scan the practi- (2) firearms; robbery; bank unlawful use of calities of the situation. (3) transportation of a stolen automobile in commerce; (4) interstate conspiracy. majority have found that Ford him- Middletown, The robbery was committed at objections self his waived under Article 20,1971. New York on October IV(e) On Novem- of the Interstate Agreement on De- 11,1971 ber a warrant for Ford’s arrest was They tainers Act. then turn to Article issued, fugitive but IV(c), he remained a containing until so words well known 11, October 1973 when he was arrested to the law as entirely dependent on the Chicago, the FBI in 17, facts, Illinois. On October namely, good “for cause” and “neces- 1973 the turned sary FBI him over to Illinois or reasonable”. On such facts ás are them, authorities for extradition to Massachusetts they known to say that until Febru- resulting for trial from a escape 18, ary from 1975 the continuance was “neces- prison. February guilty after a sary” and “reasonable” granted and was рlea charges, to the Massachusetts Ford “for cause”. was sentenced to eight concurrent terms of At point this apparently the determina-
to ten years, which sentence he is presently tive little, facts become of any, if impor- serving. point At this begin events at tance majority. to the We know that issue before us. Judge on Motley February 1975 was in On March charged Ford was in the midst effecting justice for another District Southern of New York with person probably in a trial. We — robbery bank related above also know that under the individual calen- plead mentioned. To enable prompt- him to system dar this was Judge Motley’s case. ly, produced April Ford was 1974 in fault majority Judge Motley post- for New pursuant York to a writ issued poning 11,1975 the case June “instead of March purpose. At reassigning judge case to able to arraignment requested Ford his return to accord the defendant a prompt trial”. This prepare Massachusetts to his trial there statement Judge Motley’s assumes power to regard appellant alleges prejudice, 31. We note in this with the state sentence. Such were appellant allegations, detainer caused him to denied cer- able substantiate opportunities during years pend- specifically recognized tain it Hooey, in Smith v. ing opportunity deprived him of the 393 U.S. S.Ct. L.Ed.2d 607 concurrently serve his entire federal sentence canvassing the that after and assumes do so twenty-five judges calendar-free
other found. With all of have been
judge could duties, regard I do not it as a
our other Appeals to act as a the Court
function of the district courts.
calendar clerk has short, although there been factual opinion majority’s
support for the 18,1975 reason- February
delays up to upon are no necessary, there facts
able and contrary there- assumption to base
which easy access thereto. despite
after any violation of Ford’s
I find do not Barker v.
rights guidelines 92 S.Ct. 407 U.S.
Wingo, *13 being willing Not
L.Ed.2d guilt by determination of jury’s
thwart technicalities, par- calendar
post-conviction showing prejudice no where
ticularly made, I would affirm has been
therefrom convictions, or at most remand for a essentials determination
factual “necessary or reasona-
“good cause”
ble”. YORK, NEW
The STATE OF
Plaintiff-Appellant, NUCLEAR REGULATORY al., et
COMMISSION
Defendants-Appellees. Dockets
Nos.
75-6115, 76-6022 and 76-6081. of Appeals, Court
United States Circuit.
Second
Argued July
Decided Feb.