noting that a writ of habeas corpus ad testificandum “authorizes a federal court to command a state custodian to turn over a prisoner to federal authority, presumably without delay or the right to disapprove”
How later courts described this case
- noting that a writ of habeas corpus ad testificandum “authorizes a federal court to command a state custodian to turn over a prisoner to federal authority, presumably without delay or the right to disapprove”
- exploring the problems stemming from unregulated interstate detainers that led to adoption of the Agreement
- finding that dismissal under the IAD is “mandatory”
- sua sponte continuances without any type of formal hearing did not comply with “open court” requirement
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge
(dissenting):
I am greatly impressed by Judge Mansfield’s most learned and exhaustive treatise on the history of, and the raison d’etre for, the enactment of the Interstate Agreement on Detainers Act.
However, turning to the facts of the case before us on appellate review, I find that after a jury trial before Judge Motley, the appellant Richard Ford was convicted of (1) bank robbery; (2) unlawful use of firearms; (3) transportation of a stolen automobile in interstate commerce; and (4) conspiracy. The robbery was committed at Middletown, New York on October 20,1971. On November 11,1971 a warrant for Ford’s arrest was issued, but he remained a fugitive until October 11, 1973 when he was arrested by the FBI in Chicago, Illinois. On October 17, 1973 the FBI turned him over to Illinois authorities for extradition to Massachusetts for trial resulting from a 1968 escape from prison. On February 8, 1974, after a guilty plea to the Massachusetts charges, Ford was sentenced to concurrent terms of eight to ten years, which sentence he is presently serving. At this point begin the events at issue before us.
On March 21, 1974 Ford was charged in the Southern District of New York with the bank robbery and related charges above mentioned. To enable him to plead promptly, Ford was produced on April 1, 1974 in New York pursuant to a writ issued on March 25, 1974 for that purpose. At the arraignment Ford requested his return to Massachusetts to prepare for his trial there and to be with his family. The request was granted. Despite this return, the Government was apparently ready to proceed immediately in New York, a notice of readiness having been filed on April 1, 1974.
Ford was not alone in his Middletown robbery. On April 3, 1974, a superseding indictment was obtained to include James Flynn, a fugitive. Again Ford came to New York to plead, and again he requested a return to Massachusetts. Trial was set for May 28, 1974.
It may well be argued that we should not be concerned with the gravity of Ford’s alleged crimes. Nor is this the time or place to debate the wisdom of speedy trial legislation enacted without any provision by way of judges available for its implementation. However, from our appellate ivory tower, we ought at least to scan the practicalities of the situation.
The majority have found that Ford himself waived his objections under Article IV(e) of the Interstate Agreement on De-tainers Act. They then turn to Article IV(c), containing the words so well known to the law as entirely dependent on the facts, namely, “for good cause” and “necessary or reasonable”. On such facts ás are known to them, they say that until February 18, 1975 the continuance was “necessary” and “reasonable” and was granted “for good cause”.
At this point apparently the determinative facts become of little, if any, importance to the majority. We know that Judge Motley on February 18, 1975 was in the midst of effecting justice for another person — probably in a speedy trial. We also know that under the individual calendar system this was Judge Motley’s case. The majority fault Judge Motley for postponing the case to June 11,1975 “instead of reassigning the case to a judge able to accord the defendant a prompt trial”. This statement assumes Judge Motley’s power to *745 do so and assumes that after canvassing the other twenty-five judges a calendar-free judge could have been found. With all of our other duties, I do not regard it as a function of the Court of Appeals to act as a calendar clerk for the district courts.
In short, although there has been factual support for the majority’s opinion that the delays up to February 18,1975 were reasonable and necessary, there are no facts upon which to base a contrary assumption thereafter despite easy access thereto.
I do not find any violation of Ford’s rights under the guidelines of Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). Not being willing to thwart the jury’s determination of guilt by post-conviction calendar technicalities, particularly where no showing of prejudice therefrom has been made, I would affirm the convictions, or at most remand for a factual determination of the essentials of “good cause” and “necessary or reasonable”.