United States v. William Bryant

612 F.2d 799, 1979 U.S. App. LEXIS 10843

• Court: Court of Appeals for the Fourth Circuit
• Decided: October 30, 1979
• Docket: 78-5222
• Status: Published

Opinions

JAMES DICKSON PHILLIPS, Circuit Judge:

Convicted by a jury on five counts of receiving and possessing stolen postal money orders, 18 U.S.C. § 500, Bryant appealed assigning as errors a fatal variance in his indictment; instructions to the jury on the element of recent possession; and violation of rights secured by the Interstate Agreement on Detainers Act. Finding no reversible error, we affirm the judgment of the district court.

I.

Fourteen blank postal money order forms were stolen from a New York post office on October 30, 1973. An unlawful entry occurred at a Baltimore, Maryland post office, with no loss discovered, in March 1977. A validating plate for the blank postal money orders was reported missing from another Baltimore post office on April 9, 1977. Six postal money orders were cashed in Charlotte, North Carolina, on April 16 and 18 of that year, having the numbers of the stolen blank forms, bearing the number of the stolen validating plate, and having been validated on a machine in the unlawfully-entered Baltimore post office. An expert witness for the U.S. Post Office identified the palm prints on the six money orders, in the writing position, and a latent fingerprint on one, as those of defendant Bryant.

Bryant was indicted in the Eastern District of North Carolina for receiving and possessing a stolen postal money order, and that district lodged a detainer with the State of Maryland, where Bryant was in custody for ah unrelated state offense, on March 27, 1978. Bryant then was indicted in the Western District of North Carolina for receipt and possession of the six “U.S. Postal money order[s]” that had been “embezzled, stolen and converted,” the charge from which the instant appeal comes, on June 5,1978. The Western District issued a writ of habeas corpus ad prosequendum to Maryland authorities on July 13 without having filed a detainer. Defendant was delivered into the temporary custody of the Western District six days later. Scheduled for trial on August 8, he requested and was granted a continuance. After denial of his motion challenging the court’s jurisdiction for alleged violation of the Interstate Agreement on Detainers Act, he was tried to a jury on August 22,1978, convicted, and this appeal followed.

II.

We first address the suggested violation of the Interstate Agreement on Detainers Act, 18 U.S.C. App. A (Supp.1979) (the Act).

In its critical provisions, this Act creates a method for a prosecutor to secure the presence of a prisoner of another jurisdiction by lodging a detainer and requesting custody. 18 U.S.C.A. App. A, at art. IV. It also provides a procedure for a prisoner against whom a detainer has been filed to accelerate final disposition of the charges. Id. art. III. To speed along disposition of charges, it generally requires trial to begin within 120 days of the prisoner’s arrival pursuant to a prosecutor’s detainer and request, or within 180 days of a prisoner’s request. Id. arts. IV(c), 111(a). Further, it directs notice to be given by the custodial state to all appropriate officers and courts of the receiving jurisdiction that lodged the detainer, and requires dismissal of any charges issued in the receiving jurisdiction before the prisoner’s return to custody and “contemplated hereby.” Id. art. IV(e); see id. art. 111(d). Finally, the provision at issue here states that after a prosecutor has filed a detainer and a request “there shall be a period of thirty days after receipt by the appropriate authorities before the request be honored, within which period the Governor of the sending State may disapprove the request for temporary custody or availability . . . .” Id. art. IV(a). It has now been established by judicial decision that, after the lodging of a detainer, the issuance of a writ of habeas corpus ad prosequendum operates as a request under the Act for temporary custody or availability, United States v. Mauro, 436 U.S. 340, 363, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); Brown v. Mitchell, 598 F.2d 835, 836 (4th Cir. 1979), to the extent the writ is for “prosecution on the charge or charges . which form the basis of the detainer . or . aris[e] out of the same transaction,” 18 U.S.C.A. App. A, at art. V(d).

Bryant contends that the Act applies to his transfer and that its provision for a thirty-day period was violated by his transfer to federal custody within six days after issuance of the Western District’s writ of habeas corpus ad prosequendum. For the Act to apply, the Western District’s writ must be considered to have operated in conjunction with the Eastern District’s earlier detainer to trigger the Act under the Mauro interpretation. This raises a serious preliminary question which we need not address here ¹ because we conclude that, in any event, the Act’s thirty-day provision would not have been violated here if the Act did apply.

We interpret the thirty-day period to be a maximum period for a state’s action on a request following a detainer and not a minimum period during which a state cannot yield custody. The actual language of the Act, that “there shall be a period of thirty days . . . before the request be honored, within which period the Governor of the sending State may disapprove the request,” id. art. IV(a), means that no more than thirty days are allowed during which a disapproval will be countenanced rather than that at least thirty days must elapse before the sending state may approve and make the transfer. The stated purpose of the Act, “to encourage the expeditious and orderly disposition of [outstanding] charges .,” id. art. I, is served by a construction that accelerates the possible trial date. See also United States v. Mauro, 436 U.S. at 351, 98 S.Ct. 1834. The remainder of Article IV also demands this construction, because it explicitly provides that “such delivery [of a prisoner] may not be opposed or denied on the ground that the executive authority of the sending State has not affirmatively consented to or ordered such delivery.” Id. art. IV(d).

Even if the thirty-day period were a mandatory waiting period when set in motion, we believe that it does not apply to federal writs of habeas corpus ad prosequendum that follows detainers. The Interstate Agreement on Detainers was designed for cooperation between individual states, and was only recently joined by the United States, without amendment. While an individual state has authority to disapprove another state’s request for custody, it does not have authority and is not empowered by the Act to reject a federal writ of habeas corpus ad prosequendum that serves as such a request, as the Supreme Court noted in Mauro. United States v. Mauro, 436 U.S. at 363, 98 S.Ct. 1834. While the thirty-day period applies to state requests and to other federal “requests” for custody or availability that do not have operative effect in themselves, see id. at 360, 98 S.Ct. 1834, it does not apply to a request in the form of a federal writ of habeas corpus ad prosequendum that follows a detainer and that is immediately legally effective; so this period was not violated in the instant case in any event.

III.

Bryant next contends that his indictment for receiving or possessing six “U.S. Postal money order[s],” knowing that they had been embezzled, stolen and converted, did not state the statutory offense of receiving or possessing “any blank money order form.” 18 U.S.C. § 500. We agree with Bryant that the statutory term “any such money order” refers to the phrase “any blank money order form” in the preceding paragraph, but we believe that the money order charged to his possession was a “blank” money order form within contemplation of the statute. The gravamen of the offense defined in the seventh unnumbered paragraph of 18 U.S.C. § 500 as literally charged to Bryant in the indictment and sufficiently proved on trial is the possession or receipt with requisite intent of a money order form known by the possessor to have entered illegal traffic in “blank” form. That it may to some extent have lost its blank form when he received it, or that he himself may have altered it from its original blank form is immaterial to charge or proof of this possessory offense. We conclude that the indictment did not vary fatally from the statutory offense, because “each essential element of the offense [was] alleged together with sufficient additional facts to allow the indictment to be used as proof in bar of a subsequent prosecution for the same offense” and “to apprise the defendant of the charge against him so that he may prepare his defense.” United States v. Duncan, 598 F.2d 839, 848 (4th Cir. 1979).

IV.

Finally, Bryant argues that the jury instructions on recent possession were erroneous, because the blank money orders had been stolen three and one half years before they were validated and cashed so that his possession was not recent enough to permit an inference of his knowledge of their stolen character. Bryant did not raise this objection at trial or propose a conflicting instruction and may not raise it here initially. Fed.R.Crim.P. 30; Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir. 1978). In any event, the money orders were illegally validated only seven and nine days before he cashed them so that the instructions properly charged recent possession. United States v. Sahadi, 292 F.2d 565 (2d Cir. 1961).

AFFIRMED.

1 . The Act defines a “State” as including “the United States of America.” 18 U.S.C.A. App., at art. 11(a). Hence the filing of a detainer by one federal district followed by the issuance of a writ of habeas corpus ad prosequendum by another district on the same charge or transaction underlying the detainer, id. art. V(d), might be thought to activate the Act’s several requirements. See United States v. Krohn, 558 F.2d 390, 392 (8th Cir. 1977); United States v. Cappucci, 342 F.Supp. 790, 793 (E.D.Pa.1972). On the other hand, the Act was drafted for use by the individual states and was only subsequently joined by the United States, with no explicit legislative acknowledgment that the detainer of one federal district and the subsequent writ of another on the same charge or transaction would invoke the Act. The district judge in this case concluded, “it’s hard for me to believe that where any [federal] district in the land files a detainer, . . then that would . make [the Detainers Act] effective to all the other 90-some-odd districts in the land. That’s a little bit broader than I believe the Congress intended . .” Jt. App. 14 — 15. We reserve decision on the point.