United States v. Louis Thompson

562 F.2d 232

• Court: Court of Appeals for the Third Circuit
• Decided: August 22, 1977
• Docket: 76-1976
• Status: Published

Opinions

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

On January 13,1976, a federal grand jury sitting in the Eastern District of Pennsylvania returned Indictment No. 76-22, charging Louis Thompson in two counts for distribution of a controlled substance (heroin), in violation of 21 U.S.C. § 841.

On April 6, 1976, the district court issued a writ of habeas corpus ad prosequendum directing the United States Marshal and the Warden of the Philadelphia Detention Center to produce the defendant, then being held at the Holmesburg Prison for service of a state criminal sentence of three to twenty-three months,¹ for arraignment on April 9, 1976. On that date the defendant was arraigned at the United States Court House, 601 Market Street, Philadelphia, Pennsylvania, and then returned to state custody at the Holmesburg Prison. On May 3,1976, the defendant appeared before the district court for trial pursuant to a second writ of habeas corpus ad prosequendum.

Prior to trial the defendant filed a motion to dismiss the indictment pursuant to Article IV(e) of the Interstate Agreement on Detainers Act (the Detainer Agreement), 18 U.S.C. App. p. 232 (1977 Supp.). After oral argument, the district court denied the motion on May 3, 1976, ruling that “the Interstate Agreement on Detainers Act is not applicable in a case in which the federal government is trying a prisoner serving a state sentence within the geographical limits of the state in which the federal court is sitting.” (A-30).²

On May 5,1976, after a jury trial, defendant was found guilty on both counts of the indictment. On July 9, 1976, the defendant was sentenced to two years’ imprisonment and a consecutive three-year special parole term. This appeal by defendant followed.

This court directed the listing of this appeal for rehearing en banc by order of January 28, 1977.

A summary outline of the Detainer Agreement appears in United States ex rel. Esola v. Groomes, 520 F.2d 830, 833-34 (3d Cir. 1975). The purposes underlying the Interstate Agreement on Detainers are set forth in an opinion filed earlier today in United States v. Sorrell, 562 F.2d 227 (3d Cir.).

Particularly because the appellant was not as available to his counsel in the period between April 9, 1976, when he was produced at the United States Court House, 601 Market Street, and May 3, 1976, when he appeared for trial, as he would have been if the federal authorities had retained custody of him during this period,³ we cannot say that the failure to comply with the Detainer Agreement’s purpose of having him tried, with the effective assistance of counsel, promptly after his custody is first transferred from state to federal authorities is so insubstantial that the wording of Article IV(e) of the Detainer Agreement⁴ should not be applied according to its terms. If Thompson had remained in federal custody on and after April 9, the vehicles of the United States Marshal making regular weekday trips from the Holmesburg Prison to the United States Court House at 601 Market Street could have brought him to a place of easy accessibility to his lawyer, whereas a trip to Holmesburg Prison, which was required for consultation between attorney and client as long as he was in state custody and the lawyer had to go to him and return, would take his lawyer at least one-half a day. Furthermore, we believe the Detainer Agreement should be enforced according to its terms without the district court’s being required to judge those terms, including IV(e), in the light of the Detainer Agreement’s statutory purposes, as stated in Article I (see Sorrell at pages 229-230), every time the prosecutor chooses to ignore its wording. If Congress had wanted the district courts, in their discretion, to apply the clear provisions of Article IV(e) of the Detainer Agreement in the light of the purposes of such Agreement, such wording would have been included in Article IV(e).⁵

The judgment of the district court will be reversed and the case remanded with directions that the district court dismiss the indictment for the reasons stated above.

1 . In addition to its state function, Holmesburg Prison is regularly used by the United States for pre-trial detention for those accused of federal crimes (App. p. A-31). We note that the Government took the position at the trial that the Detainer Agreement was never invoked (A-20), even though it conceded in its Answer to the Motion to Dismiss (A-10) that a “federal detainer” of unspecified terms “was lodged for the instant indictment [on March 25, 1976].” No proof of this allegation in the Answer appears in the record. We can see no reason why the application of the Detainer Agreement cannot be invoked by both such a federal detainer, assuming its wording was appropriate,. and a subsequently issued writ of habeas corpus ad prosequendum, worded in accordance with the Eastern District of Pennsylvania form (see Sorrell, supra at note 6).

2 . We reject the holding of the district court that the Detainer Agreement is not applicable where the Federal Government is trying a state prisoner serving his state sentence within the geographical limits of the state in which the federal district court is located. See United States v. Sorrell, 413 F.Supp. 138, 140-41 (E.D.Pa.1976).

3 . See United States v. Sorrell, 562 F.2d 227, 3 Cir. at note 3.

4 . Article IV(e) of the Detainer Agreement, 18 U.S.C. App. p. 232 (1977 Supp.), 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.”

5 . See last paragraph of note 3 in United States v. Sorrell, supra.