Petition for Writ of Certiorari — Rami A. Amer, Petitioner v. New Jersey

No.

In the Supreme Court of the United States

RAMI A. AMER, PETITIONER

v.

NEW JERSEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI

ALEXANDER E. JONES

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

KANNON K. SHANMUGAM

Counsel of Record

BRIAN M. LIPSHUTZ

MATTEO GODI

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

QUESTIONS PRESENTED

1. Whether a defendant is always “unable to stand

trial” under Article VI(a) of the Interstate Agreement on

Detainers while a pretrial motion is pending.

2. Whether a defendant has been “brought to trial”

within 180 days of his request for final disposition of

charges under Article III(a) of the Interstate Agreement

on Detainers at the point when jury selection begins.

(I)

RELATED PROCEEDINGS

Superior Court of New Jersey, Law Division, Gloucester

County:

State v. Amer, No. 18-6-460 (Sept. 4, 2018) (judgment)

Superior Court of New Jersey, Appellate Division:

State v. Amer, Crim. No. A-3047-18 (Mar. 31, 2022)

Supreme Court of New Jersey:

State v. Amer, Crim. No. A-9-22-86950 (July 3, 2023)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Statutory provisions involved ...................................................... 2

Statement ...................................................................................... 3

A. Background ...................................................................... 4

B. Facts and procedural history ......................................... 6

Reasons for granting the petition ............................................. 10

A. The decision below perpetuates a conflict

among the lower courts and is incorrect ..................... 12

B. The questions presented are exceptionally

important and warrant the Court’s review

in this case ...................................................................... 21

Conclusion ................................................................................... 23

Appendix A .................................................................................. 1a

Appendix B ................................................................................ 27a

Appendix C ................................................................................ 64a

Appendix D ................................................................................ 74a

Appendix E ................................................................................ 79a

TABLE OF AUTHORITIES

Cases:

Alabama v. North Carolina, 560 U.S. 330 (2010) ............. 17

Birdwell v. Skeen,

983 F.2d 1332 (5th Cir. 1993) ....................... 12, 13, 18, 22

Bowie v. State,

816 P.2d 1143 (Okla. Ct. Crim. App. 1991) ................... 21

Carchman v. Nash, 473 U.S. 716 (1985) .................... 4, 5, 23

Cobb v. State, 260 S.E.2d 60 (Ga. 1979) .............................. 14

Commonwealth v. Montione,

720 A.2d 738 (Pa. 1998),

cert. denied, 526 U.S. 1098 (1999) .................................. 14

(III)

IV

Page

Cases—continued:

Cuyler v. Adams, 449 U.S. 433 (1981) ................................ 17

Diaz v. State, 50 P.3d 166 (Nev. 2002)................................ 22

Dillard v. State, 46 S.W. 533 (Ark. 1898) ........................... 20

Dillon v. State, 844 S.W.2d 139 (Tenn. 1992),

cert. denied, 507 U.S. 988 (1993).................................... 14

Donaldson, Ex parte, 44 Mo. 149 (1869) ............................ 20

Edwards, In re, 10 P. 539 (Kan. 1886) ............................... 20

George v. McDonough, 142 S. Ct. 1953 (2022)................... 19

Higgins v. United States,

205 F.2d 650 (9th Cir. 1953) ........................................... 18

Jones v. State, 813 P.2d 629 (Wyo. 1991) ........................... 14

Kaplan v. United States,

241 F.2d 521 (5th Cir. 1957) ........................................... 18

King v. State, 201 P. 99 (Ariz. 1921) ................................... 21

Lipscomb v. State, 25 So. 158 (Miss. 1899) ........................ 18

McGehan, Ex parte, 22 Ohio St. 442 (1872) ....................... 20

Montana v. Wyoming, 563 U.S. 368 (2011) ....................... 18

Murphy, In re, 34 P. 834 (Wash. 1893) .............................. 20

New Jersey v. Delaware, 552 U.S. 597 (2008) ................... 18

New Jersey v. New York, 523 U.S. 767 (1998) ................... 18

New York v. Hill, 528 U.S. 110 (2000) .............................. 5, 6

People v. Camilo, 11 P. 128 (Cal. 1886) .............................. 20

People v. Den Uyl, 31 N.W.2d 699 (Mich. 1948)................ 20

People v. Emblen, 199 N.E. 281 (Ill. 1935) ........................ 20

People v. Hawkins, 59 P. 697 (Cal. 1899) ........................... 20

People v. Syjut, 17 N.W.2d 232 (Mich. 1945) ..................... 18

Roberts v. State,

204 S.W. 866 (Tex. Crim. App. 1918) ............................. 18

State v. Batungbacal, 913 P.2d 49 (Haw. 1996) ................. 14

State v. Beauchene, 541 A.2d 914 (Me. 1988) .................... 19

State v. Bjorkman, 199 A.3d 263 (N.H. 2018) ................... 21

State v. Brown, 953 A.2d 1174 (N.H. 2008)........................ 16

State v. Conrow, 35 P. 240 (Mont. 1893) ............................ 20

State v. Keefe, 98 P. 122 (Wyo. 1908) .................................. 20

State v. Kuhn, 57 N.E. 106 (Ind. 1900) .............................. 20

V

Page

Cases—continued:

State v. Lowman, 133 S.E. 457 (S.C. 1926) ........................ 18

State v. Lynch, 399 A.2d 629 (N.J. 1979) ........................... 21

State v. Tejeda, 171 A.3d 983 (R.I. 2017) ........................... 14

State v. Test, 211 P. 217 (Mont. 1922)................................. 21

Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978),

cert. denied, 440 U.S. 940 (1979).............................. 13, 14

Tarrant Regional Water District v. Herrmann,

569 U.S. 614 (2013) .......................................................... 18

Turner v. Commonwealth, 231 S.W. 519 (Ky. 1921) ........ 18

United States v. Cephas,

937 F.2d 816 (2nd Cir. 1991),

cert. denied, 502 U.S. 1037 (1992) .................................. 15

United States v. Collins,

90 F.3d 1420 (9th Cir. 1996) ........................................... 15

United States v. Ellerbe,

372 F.3d 462 (D.C. Cir. 2004) ......................................... 14

United States v. Mauro, 436 U.S. 340 (1978) ............ 4, 5, 22

United States v. Neal,

36 F.3d 1190 (1st Cir. 1994),

cert. denied, 519 U.S. 1012 (1996) .................................. 16

United States v. Nesbitt,

852 F.2d 1502 (7th Cir. 1988) ......................................... 14

United States v. Peterson,

945 F.3d 144 (4th Cir. 2019),

cert. denied, 141 S. Ct. 132 (2020) ................................. 15

United States v. Taylor,

861 F.2d 316 (1st Cir. 1988) ............................................ 16

United States v. Winters, 600 F.3d 963 (8th Cir.),

cert. denied, 562 U.S. 908 (2010).................................... 14

Vining v. State, 637 So. 2d 921 (Fla.),

cert. denied, 513 U.S. 1022 (1994) .................................. 17

Yule v. State, 141 P. 570 (Ariz. 1914) .................................. 20

Statutes:

Speedy Trial Act of 1974, 18 U.S.C. 3161-3174:

18 U.S.C. 3161(c)(1)......................................................... 19

VI

Page

Statutes—continued:

18 U.S.C. 3161(h) ............................................................. 15

18 U.S.C. 3161(h)(1)(D) .................................................. 15

18 U.S.C. 3161(h)(4) ........................................................ 15

28 U.S.C. 1257(a) .................................................................... 2

Interstate Agreement on Detainers, codified by

1958 N.J. Sess. Law Serv. Ch. 12 (Apr. 18, 1958) .......... 5

N.J. Stat. Ann. § 2A:159A-3(a) .................... 2, 5, 6, 10, 23

N.J. Stat. Ann. § 2A:159A-4(c) ..................................... 5, 6

N.J. Stat. Ann. § 2A:159A-5(c) ..................................... 5, 6

N.J. Stat. Ann. § 2A:159A-6(a) ... 2, 3, 6, 10, 12-15, 19, 23

N.J. Stat. Ann. § 2A:159A-6(b) ...................................... 19

Miscellaneous:

Council of State Governments, Agreement on

Detainers <tinyurl.com/csg-iad-members>

(last visited Sept. 29, 2023) ............................................... 5

In the Supreme Court of the United States

No.

RAMI A. AMER, PETITIONER

v.

NEW JERSEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEW JERSEY

PETITION FOR A WRIT OF CERTIORARI

Rami Amer respectfully petitions for a writ of certiorari to review the judgment of the Supreme Court of New

Jersey in this case.

OPINIONS BELOW

The opinion of the Supreme Court of New Jersey

(App., infra, 1a-26a) is reported at 297 A.3d 364. The opinion of the Superior Court of New Jersey, Appellate Division (App., infra, 27a-63a), is reported at 272 A.3d 1264.

The opinions of the trial court (App., infra, 64a-73a, 74a78a) are not reported. The bench ruling of the trial court

(App., infra, 79a-86a) is not reported.

(1)

2

JURISDICTION

The judgment of the Supreme Court of New Jersey

was entered on July 3, 2023. The jurisdiction of this Court

is invoked under 28 U.S.C. 1257(a).

STATUTORY PROVISIONS INVOLVED

Article III(a) of the Interstate Agreement on Detainers, codified in New Jersey at N.J. Stat. Ann. § 2A:159A3(a), provides:

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party

State, and whenever during the continuance of the

term of imprisonment there is pending in any other

party State any untried indictment, information or

complaint on the basis of which a detainer has been

lodged against the prisoner, he shall be brought to

trial within 180 days after he shall have caused to be

delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: provided that for good

cause shown in open court, the prisoner or his counsel

being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Article VI(a) of the Interstate Agreement on Detainers, codified in New Jersey at N.J. Stat. Ann. § 2A:159A6(a), provides:

In determining the duration and expiration dates of

the time periods provided in Articles III and IV of this

agreement, the running of said time periods shall be

tolled whenever and for as long as the prisoner is

3

unable to stand trial, as determined by the court having jurisdiction of the matter.

STATEMENT

Petitioner requested a final disposition of charges

pending against him in New Jersey while he was incarcerated in Pennsylvania. A compact known as the Interstate

Agreement on Detainers required that petitioner be

“brought to trial” in New Jersey within 180 days of his

request, excluding any days when he was “unable to stand

trial.” In an apparent effort to avoid violating the Agreement, the trial court conducted voir dire within 180 days

but did not begin the trial for another six weeks because

the judge had vacation and other plans. By the time the

jury was sworn and jeopardy attached, more than 200

days had elapsed since petitioner’s request for a prompt

disposition of his charges.

Petitioner objected to the delay and moved to dismiss

the indictment. The trial court denied petitioner’s request, concluding that the 180-day deadline should be

tolled while pretrial motions were pending and that he had

been brought to trial at the point when voir dire began.

The New Jersey Supreme Court affirmed. After acknowledging a conflict among federal courts of appeals

and state courts of last resort, the New Jersey Supreme

Court held that a defendant is always “unable to stand

trial” under Article VI(a) while a pretrial motion is pending. The court further held that a defendant has been

“brought to trial” under Article III(a) at the point when

jury selection begins, even if the jury is not sworn and

opening statements do not occur for another six weeks.

In reaching those holdings, the New Jersey Supreme

Court ignored the settled historical meaning of the

phrases “unable to stand trial” and “brought to trial.”

When the Agreement was drafted and entered into force,

4

a defendant was unable to stand trial only if he was physically or mentally unable to do so. Moreover, a defendant

had not been brought to trial until the jury had been

sworn and jeopardy had attached.

Both questions presented are important ones of federal law. Because there is an intractable conflict on the

first question and because this case is an excellent vehicle

in which to resolve both of them, the petition for a writ of

certiorari should be granted.

A. Background

The Interstate Agreement on Detainers is a compact

that establishes procedures for the resolution of one

State’s outstanding charges against a prisoner of another

State. Before the adoption of the Agreement, “there were

several means by which States could obtain prisoners

from other jurisdictions, none of which was entirely satisfactory.” United States v. Mauro, 436 U.S. 340, 355 n.23

(1978). A common one was the practice of filing detainers.

See ibid. “A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release

of the prisoner is imminent.” Carchman v. Nash, 473 U.S.

716, 719 (1985).

Some prosecutors engaged in a practice of filing detainers based on “untried criminal charges that had little

basis.” Nash, 473 U.S. at 729. “Even though unsubstantiated, the detainers would have a detrimental effect on

the prisoner’s treatment.” Id. at 730. Prisoners subject

to a detainer are often “denied certain privileges within

the prison, and rehabilitation efforts may be frustrated.”

Mauro, 436 U.S. at 360. A director of the Bureau of Prisons explained that, in his experience, “the presence of a

detainer automatically guaranteed that the inmate would

5

be held in close custody and denied training and work experiences.” Id. at 359 (citation omitted); see Nash, 473

U.S. at 730 n.8. And “[t]hese detainers often would be

withdrawn shortly before the prisoner was released,”

thereby escaping judicial scrutiny. Nash, 473 U.S. at 729730.

In 1957, the Council of State Governments proposed

the Interstate Agreement on Detainers. See Mauro, 436

U.S. at 350-351. “As a congressionally sanctioned interstate compact within the Compact Clause of the United

States Constitution, the [Agreement] is a federal law subject to federal construction.” New York v. Hill, 528 U.S.

110, 111 (2000) (internal quotation marks and citation

omitted). New Jersey enacted the Agreement in 1958.

See 1958 N.J. Sess. Law Serv. Ch. 12 (Apr. 18, 1958). The

federal government and all of the States except Louisiana

and Mississippi have now entered into the Agreement.

See Hill, 528 U.S. at 111; Council of State Governments,

Agreement on Detainers <tinyurl.com/csg-iad-members> (last visited Sept. 29, 2023).

Article III of the Agreement “provides the prisoner

with a procedure for bringing about a prompt test of the

substantiality of detainers placed against him by other jurisdictions.” Nash, 473 U.S. at 730 n.6 (internal quotation

marks and citations omitted). “After a detainer has been

lodged against him, a prisoner may file a ‘request for a

final disposition to be made of the indictment, information, or complaint’ ” under Article III(a). Hill, 528 U.S.

at 112 (citation omitted). A prisoner “shall be brought to

trial within 180 days after he shall have caused to be delivered” his formal request. N.J. Stat. Ann. § 2A:159A3(a) (Art. III(a)). If the defendant has not been “brought

to trial” within 180 days, the indictment must be dismissed with prejudice. Id. § 2A:159A-5(c) (Art. V(c)).

6

“Resolution of the charges can also be triggered by the

charging jurisdiction” by “request[ing] temporary custody of the prisoner for that purpose.” Hill, 528 U.S. at

112. Under Article IV, “trial shall be commenced within

120 days of the arrival of the prisoner in the receiving

State.” N.J. Stat. Ann. § 2A:159A-4(c) (Art. IV(c)). If the

defendant is not “brought to trial” within 120 days, the

charges must be dismissed with prejudice. Id. § 2A:159A5(c) (Art. V(c)).

The deadlines in Articles III and IV may be extended

in two circumstances. First, under Articles III(a) and

IV(c), the trial court may “grant any necessary or reasonable continuance” if “good cause [is] shown in open court”

and “the prisoner or his counsel [are] present.” N.J. Stat.

Ann. §§ 2A:159A-3(a), 2A:159A-4(c). Second, under Article VI(a), the 180-day period is “tolled whenever and for

as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” Id.

§ 2A:159A-6(a).

B. Facts And Procedural History

1. In 2017, a New Jersey grand jury indicted petitioner for several non-violent burglaries. Because petitioner was incarcerated in Pennsylvania, New Jersey

lodged a detainer against him. Petitioner invoked the

Agreement and requested a final disposition of the New

Jersey charges. New Jersey received petitioner’s request

on February 23, 2018, triggering a trial deadline of August 22, 2018. App., infra, 5a.

On May 21, petitioner signed a pretrial memorandum,

rejecting a plea offer and demanding a trial. Petitioner

also filed notices of motions to suppress evidence obtained

from a warrantless search. The trial court held a hearing

on June 29, and denied petitioner’s motions to suppress

7

from the bench at the hearing, with a written opinion on

July 13. App., infra, 32a-34a.

On July 17, the trial court entered a trial management

order providing that jury selection would begin in the

morning of July 23, with “opening thereafter.” App., infra, 36a. On July 23, the court postponed trial until the

next day. Id. at 5a. The judge also announced that, after

three days, he would “take a break and then pick back up

in September” because he was “unavailable in August”

due to a “vacation” and a “criminal justice reform” assignment. Id. at 36a, 38a. The court did not enter a continuance for good cause in open court. Id. at 36a-40a.

2. On July 25, petitioner objected to the delay on the

ground that the 180-day period under the Agreement

would expire on August 22, 2018, before trial began. App.,

infra, 6a. Petitioner argued that “we’re read[y] in August

and we ask—we don’t accede to—object to any undue, unnecessary delay.” Id. at 81a.

The prosecution made two arguments in response.

First, it argued that, as long as jury selection started before August 22, the Agreement would be satisfied. App.,

infra, 37a. Second, it argued that any days when defense

motions were pending should be “excluded from the 180

days.” Id. at 37a-38a.

The trial court denied petitioner’s motion from the

bench on July 25. App., infra, 82a-83a. The court concluded that it was “commencing” the trial and “getting it

started” “within the statutory framework” of the Agreement at the point when jury selection began. Id. at 82a.

The court also stated that, because a case “cannot be tried

when there’s a dispositive motion that’s pending,” it would

“look into the question of tolling.” Id. at 82a-83a.

Later that day, during jury selection, petitioner’s

counsel had a colloquy with the trial court regarding when

to deliver opening statements and call witnesses. The

8

trial court suggested that “we’ll start openings when we

return.” App., infra, 85a. Petitioner’s counsel agreed,

saying that “at this point” he “concede[d]” that the trial

should not begin until after the judge’s vacation. Ibid.

On July 26, the trial court entered a written order concluding that the 180-day deadline had been “tolled” from

May 21 (when petitioner filed his suppression motions)

until July 13 (when the trial court issued its opinion).

App., infra, 77a-78a. The court reasoned that petitioner

“was unable to stand trial due to the filing and pendency

of pretrial motions.” Id. at 78a.

On August 28, petitioner again moved to dismiss the

indictment on the ground that he had not been brought to

trial within 180 days. The trial court denied the motion.

App., infra, 41a-42a. It acknowledged that “the maximum

date within which the trial must commence [was] August

22, 2018.” Id. at 71a. But the court concluded that trial

started when “[j]ury selection began on July 24, 2018,”

even though “[o]pening statements [were] scheduled to

commence September 13th.” Id. at 73a. The court further

concluded that “[t]he period of 54 days during the pendency of [d]efendant’s suppression motion[s] tolled the

180-[d]ay statutory clock from August 22nd to October

14th.” Ibid. The court thus determined that “either [July

24 or September 13] is within the tolled 180-[d]ay statutory period.” Ibid.

Petitioner’s trial began on September 13. App., infra,

42a. The jury returned a guilty verdict on most of the

charges on October 4. Id. at 43a. The court sentenced

petitioner to 16 years of imprisonment, along with restitution and a fine. Id. at 43a, 63a.

3. The Appellate Division of the Superior Court of

New Jersey affirmed petitioner’s convictions and remanded for resentencing, concluding (as is relevant here) that

9

there was no violation of the Agreement. App., infra, 27a63a.

The Appellate Division first determined, sua sponte,

that petitioner had waived his rights under the Agreement. App., infra, 49a-50a. The court based that determination on defense counsel’s concession that witnesses

should not be called before the judge’s vacation—a concession made after the trial court had already rejected the

argument that the proposed schedule would violate the

Agreement. Id. at 50a.

As is relevant here, the Appellate Division proceeded

to reject petitioner’s argument on the merits. It held that

petitioner was “unable to stand trial” while his pretrial

motions were pending because those motions tolled the

180-day deadline under the Agreement. App., infra, 48a50a. The court also concluded that the trial court’s written

orders constituted a “continuance” under the Agreement.

Id. at 50a-51a. The court did not reach the question

whether petitioner had been “brought to trial” when jury

selection began. Id. at 51a n.7.

4. After granting discretionary review, the New Jersey Supreme Court affirmed. App., infra, 1a-26a. As a

threshold matter, the court concluded that petitioner had

not waived his rights under the Agreement because “it

was the trial judge, not defense counsel, who expressed a

preference for delaying the State’s presentation of testimony until trial resumed in September.” Id. at 16a. The

court did not address whether there had been a continuance for purposes of the Agreement. Id. at 26a n.8.

The New Jersey Supreme Court nevertheless affirmed the judgment below on the ground that there had

been no violation of the Agreement. App., infra, 11a-26a.

On the question of tolling, the New Jersey Supreme Court

noted that this Court “has yet to directly address the precise question whether the 180-day time period of Article

10

III of the [Agreement] is tolled during the pendency of

pretrial motions.” Id. at 18a. The New Jersey Supreme

Court further recognized that federal courts of appeals

and state courts of last resort have divided on the question. Id. at 18a-20a. The court agreed with the decisions

holding that a defendant is automatically “unable to stand

trial” while a pretrial motion is pending, although it limited tolling in the circumstances where state-court rules

limit tolling of the speedy-trial clock. Id. at 20a, 22a. The

court reasoned that, “as a practical matter, a criminal trial

ordinarily will not proceed while a pretrial motion is pending,” with the result that the defendant is “unable to stand

trial” for purposes of Article VI(a) of the Agreement while

he “awaits disposition of his * * * motions.” Id. at 20a.

The New Jersey Supreme Court further held that petitioner was “brought to trial” at the point when jury selection began. App., infra, 23a-25a. The court reasoned

that “[j]ury selection is not a pretrial proceeding, but a

critical stage of the trial itself.” Id. at 24a. Although the

court noted that its “general rule” did not “authorize trial

courts to schedule jury selection far in advance of the

trial’s remaining stages” or permit “prolonged recesses

between voir dire and the presentation of evidence,” it did

not adopt a specific rule to that effect. Id. at 25a.

REASONS FOR GRANTING THE PETITION

This case presents two issues of enormous importance

to incarcerated defendants subject to interstate detainers. First, the New Jersey Supreme Court held that a defendant who is physically and mentally capable of standing trial is nonetheless categorically “unable to stand

trial” for purposes of the Interstate Agreement on Detainers while a pretrial motion is pending. Second, the

court held that a defendant has been “brought to trial” at

the point when jury selection begins, regardless of

11

whether the jury is sworn and jeopardy attaches within

180 days.

There is an entrenched and recognized conflict among

the federal courts of appeals and the state courts of last

resort on the first question presented. The Fifth and

Sixth Circuits have held that only physical or mental disability triggers tolling under the Agreement. By contrast,

seven federal courts of appeals and seven state courts of

last resort, including the court below, have held that pretrial motions categorically render a defendant unable to

stand trial. The First Circuit and two state supreme

courts have adopted an intermediate position, holding

that a pretrial motion causes a defendant to be unable to

stand trial only if the motion actually caused the trial date

to be delayed. The Fifth and Sixth Circuits correctly recognized the established meaning of “unable to stand trial”

from the time of the Agreement’s drafting and entry into

force, but petitioner would prevail even under the intermediate approach.

In the decision below, the New Jersey Supreme Court

also resolved the closely related question whether a defendant has been “brought to trial” at the point when jury

selection begins, even if the jury is not sworn and jeopardy does not attach until 180 days have elapsed. The

New Jersey Supreme Court held that only jury selection

must begin within 180 days. That holding is incorrect, because it was clear at the time of the Agreement’s drafting

and entry into force that the phrase “brought to trial” referred to the swearing of the jury and attachment of jeopardy.

Both questions presented are exceptionally important.

This Court has explained the importance of the Agreement in protecting the rights of incarcerated defendants.

The decision below opens two loopholes in the requirement that a State promptly dispose of pending charges

12

upon a defendant’s request. The Court should grant review to provide guidance on both questions.

A. The Decision Below Perpetuates A Conflict Among

The Lower Courts And Is Incorrect

1. The decision below implicates a deep and acknowledged conflict among federal courts of appeals and state

courts of last resort as to whether a pending pretrial motion causes a defendant to be “unable to stand trial” within

the meaning of Article VI(a) of the Agreement. The Fifth

and Sixth Circuits have held that only physical or mental

disability causes a defendant to be unable to stand trial.

Like the lower court here, the First, Second, Fourth, Seventh, Eighth, Ninth, and D.C. Circuits, as well as six state

courts of last resort, have held that a pretrial motion always renders a defendant unable to stand trial. The First

Circuit and the supreme courts of Florida and New

Hampshire have held that a pretrial motion causes a defendant to be unable to stand trial only if the motion actually delayed the trial date. The resulting conflict warrants

this Court’s review.

a. The Fifth and Sixth Circuits have held that a defendant is “unable to stand trial” only if he is physically or

mentally incapable of standing trial.

In Birdwell v. Skeen, 983 F.2d 1332 (1993), the Fifth

Circuit held that only physical or mental disability—not a

pretrial motion—tolls the 180-day period in Article III(a).

Following the defendant’s request for disposition of his

charges, he filed motions that were pending for more than

three weeks. See id. at 1334. The defendant’s trial began

197 days after his request for disposition. See id. at 13341335. After he was convicted, he obtained habeas relief in

federal district court on the ground that the trial court had

failed to comply with the Agreement. See id. at 1335.

13

The Fifth Circuit agreed that the defendant was entitled to relief. The Fifth Circuit rejected the State’s argument that the defendant was “unable to stand trial” within

the meaning of Article VI(a) “on the days on which he filed

motions, the days on which the court held hearings on

those motions, and the interim periods between those

events.” 983 F.2d at 1340. The Fifth Circuit explained

that the phrase “unable to stand trial” had been “consistently and only used by federal courts to refer to a party’s

physical or mental ability to stand trial” before the enactment of the Agreement. Id. at 1340-1341 (footnote omitted). The court further noted that “a blanket rule that allows periods between motions and rulings thereon to render defendants unable to stand trial under Article VI

might encourage abuse” either by a prosecutor, who

“might be tempted to delay preparing a response for invalid reasons,” or by a trial judge, who might “delay ruling

upon motions because of heavy dockets.” Id. at 1341 n.23.

In Stroble v. Anderson, 587 F.2d 830 (1978), cert. denied, 440 U.S. 940 (1979), the Sixth Circuit likewise concluded that a defendant was able to stand trial because

there had been “no showing * * * that he was physically or mentally disabled.” Id. at 838. The defendant had

arrived in Michigan following a request from the State,

which triggered the 120-day deadline under Article IV for

him to be “brought to trial.” See id. at 832. The defendant

was tried on one charge 103 days later, but before his trial

began on the second charge, he sought federal postconviction review. See id. at 831-832. By the time the defendant

was tried for the second offense, 173 days had passed

since he arrived in Michigan. See id. at 832. The defendant sought federal postconviction review of his second

conviction. See ibid.

The Sixth Circuit granted habeas relief. It held that

the 120-day period should not be tolled under Article

14

VI(a) while the defendant’s first habeas petition was

pending, because he was not “physically or mentally disabled.” 587 F.2d at 838. The Sixth Circuit observed that,

because the Agreement’s tolling provision “was written as

a protective measure for a transferred prisoner,” it “cannot appropriately be turned from a shield for the defendant into a sword for the prosecution.” Ibid.

b. Like the New Jersey Supreme Court, the Second,

Fourth, Seventh, Eighth, Ninth, and D.C. Circuits, as well

as six other state courts of last resort, have held that a

pending pretrial motion categorically causes a defendant

to be unable to stand trial.

For example, in United States v. Ellerbe, 372 F.3d 462

(D.C. Cir. 2004), the defendant requested disposition of

federal charges while serving a sentence in Virginia. See

id. at 463-464. Because of “his penchant for frivolous motions and his erratic stance on legal representation,” the

defendant was not tried for a year. Id. at 468. The defendant sought dismissal of the charges for failure to comply with the Agreement, but the D.C. Circuit held that the

defendant was “unable to stand trial” during “those periods of delays caused by the defendant’s own actions.”

Ibid. According to the D.C. Circuit, the defendant’s “obstructive conduct throughout the period from arraignment to trial” meant that he could not “complain of the

many delays his conduct caused.” Id. at 469; see State v.

Tejeda, 171 A.3d 983, 994 (R.I. 2017); United States v.

Winters, 600 F.3d 963, 970-971 (8th Cir.), cert. denied, 562

U.S. 908 (2010); Commonwealth v. Montione, 720 A.2d

738, 741 (Pa. 1998), cert. denied, 526 U.S. 1098 (1999);

State v. Batungbacal, 913 P.2d 49, 56 (Haw. 1996); Dillon

v. State, 844 S.W.2d 139, 142 (Tenn. 1992), cert. denied,

507 U.S. 988 (1993); Jones v. State, 813 P.2d 629, 632 (Wyo.

1991); United States v. Nesbitt, 852 F.2d 1502, 1516 (7th

Cir. 1988); Cobb v. State, 260 S.E.2d 60, 64 (Ga. 1979).

15

The Second, Fourth, and Ninth Circuits have specifically held that a defendant is “unable to stand trial” whenever one of the enumerated bases for tolling in the Speedy

Trial Act applies. * The Fourth Circuit recently adhered

to that interpretation in United States v. Peterson, 945

F.3d 144 (2019), cert. denied, 141 S. Ct. 132 (2020). It explained that “periods excludable under the [Speedy Trial

Act] should also toll the clock under the [Agreement]

where possible.” Id. at 154. While acknowledging that the

tolling provisions of the Agreement and the Speedy Trial

Act “have slightly different wordings,” the Fourth Circuit

concluded that they have “broadly harmonious aims” and

that, “[t]o bring [Article VI(a)] into conformity” with the

Speedy Trial Act, Article VI(a) should be read to exclude

“those periods of delays caused by the defendant’s own

actions.” Id. at 154-155 (citation omitted); see United

States v. Collins, 90 F.3d 1420, 1427 (9th Cir. 1996);

United States v. Cephas, 937 F.2d 816, 819 (2nd Cir. 1991),

cert. denied, 502 U.S. 1037 (1992).

c. The First Circuit and the supreme courts of Florida and New Hampshire have taken an intermediate position. In those jurisdictions, a pretrial motion may render

a defendant unable to stand trial. But those courts toll the

relevant period under the Agreement only if the trial date

*

The Speedy Trial Act contains a list of sixteen “periods of delay”

that “shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within

which the trial of any such offense must commence.” 18 U.S.C.

3161(h). That list includes “[a]ny period of delay resulting from other

proceedings concerning the defendant, including * * * delay resulting from any pretrial motion, from the filing of the motion through

the conclusion of the hearing on, or other prompt disposition of, such

motion.” 18 U.S.C. 3161(h)(1)(D). Notably, the list separately enumerates “[a]ny period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial.” 18

U.S.C. 3161(h)(4).

16

is delayed because of the pretrial motion or for any other

reason attributable to the defendant.

The First Circuit has recognized that a pretrial motion

may, but does not always, toll the deadline for trial under

the Agreement. As a general matter, the First Circuit

agreed with those courts that “have held that a defendant

waives the [limitation period under the Agreement] during the time it takes to resolve matters raised by him.”

United States v. Taylor, 861 F.2d 316, 321 (1988). But the

First Circuit further recognized that “it might be inappropriate to characterize the court’s delay in rendering a decision as time in which ‘the prisoner is unable to stand

trial.’ ” Ibid. Accordingly, “where a defendant timely advises the court that he or she is claiming protections under

the [Agreement] and the court takes more time than is

necessary to resolve the defendant’s pretrial motions,

then the delay may not be fully excluded from the 120-day

clock.” United States v. Neal, 36 F.3d 1190, 1210 (1st Cir.

1994), cert. denied, 519 U.S. 1012 (1996).

The New Hampshire Supreme Court has adopted a

similar standard. In State v. Brown, 953 A.2d 1174 (N.H.

2008), the trial court granted a continuance from March

10 to September 25. See id. at 1178. The defendant filed

a motion to dismiss during the continuance that was denied on October 25. See id. at 1178-1179. Before the end

of the continuance, however, the trial court “sua sponte

determined that [the court’s] calendar would not accommodate a September trial and scheduled the trial for November 13.” Id. at 1179 (internal quotation marks omitted). Based on those facts, the New Hampshire Supreme

Court declined to toll the 180-day period beyond September 25 (the trial date that the court sua sponte rescheduled), because “the defendant’s filing of his motion to dismiss did not ‘occasion’ the period of delay from September

25 to November 13.” Id. at 1182.

17

For its part, the Florida Supreme Court has also refused to toll a trial deadline under the Agreement on a

similar ground. In Vining v. State, 637 So. 2d 921, cert.

denied, 513 U.S. 1022 (1994), the Florida Supreme Court

concluded that the 120-day period under Article IV should

not be tolled despite the filing of a pretrial motion. See id.

at 925. The court reasoned that “the original trial date of

January 22, 1990, was set at [the] arraignment on September 7, 1989,” and “never changed,” despite the defendant’s

pretrial motions. Ibid. The court thus concluded that no

delay could be “attributed to [the defendant’s] motion

practice.” Ibid.

d. In short, the federal courts of appeals and state

courts of last resort are intractably divided as to whether

a defendant is “unable to stand trial” because a pretrial

motion is pending. The Fifth and Sixth Circuits have held

that only a physical or mental disability renders a defendant unable to stand trial. Seven courts of appeals and

seven state courts of last resort (including the New Jersey

Supreme Court here) have held that a pretrial motion categorically renders a defendant unable to stand trial. And

the First Circuit and two state supreme courts have held

that a pretrial motion causes a defendant to be unable to

stand trial only if the delay is attributable to the motion.

2. The New Jersey Supreme Court erred by holding

that a pretrial motion causes a defendant to be “unable to

stand trial.” Under its established meaning, the phrase

“unable to stand trial” refers to a physical or mental disability. Here, it is undisputed that petitioner was at all

times physically and mentally able to stand trial.

a. An approved interstate compact is both a “contract” and a “federal statute.” Alabama v. North Carolina, 560 U.S. 330, 351 (2010). As a “law of the Union,” its

interpretation is exclusively a matter of federal law.

Cuyler v. Adams, 449 U.S. 433, 438 n.7 (1981). “[J]ust as

18

if a court were addressing a federal statute,” New Jersey

v. New York, 523 U.S. 767, 811 (1998), it should “begin by

examining the express terms of the [c]ompact as the best

indication of the intent of the parties.” Tarrant Regional

Water District v. Herrmann, 569 U.S. 614, 628 (2013).

Under those interpretive rules, the established common-law usage of the Agreement’s terms at the time of

drafting and entry into force is controlling. See New Jersey v. Delaware, 552 U.S. 597, 610-611 (2008). A court cannot “redefine” a compact’s words if they had a “longstanding meaning” when they were used. Montana v. Wyoming, 563 U.S. 368, 387 (2011).

b. Under the established meaning of the Agreement

at the time of its drafting and entry into force, a defendant

is “unable to stand trial” only when he has a physical or

mental disability that prevents him from being tried. As

the Fifth Circuit noted, that phrase “was consistently and

only used by federal courts to refer to a party’s physical

or mental ability to stand trial throughout the fifteen

years prior to Congress’ enacting the [Interstate Agreement on Detainers Act] in 1970.” Birdwell, 983 F.2d at

1340-1341 (footnote omitted); see id. at 1341 n.22 (collecting cases). Indeed, at least as early as the turn of the century and continuing through the 1950s, dozens of judicial

opinions used the phrases “unable to stand trial” and

“able to stand trial” when considering whether to grant a

continuance because of a defendant’s mental or physical

inability to stand trial. See, e.g., Lipscomb v. State, 25 So.

158, 159 (Miss. 1899); Roberts v. State, 204 S.W. 866, 867

(Tex. Crim. App. 1918); Turner v. Commonwealth, 231

S.W. 519, 520 (Ky. 1921); State v. Lowman, 133 S.E. 457,

458 (S.C. 1926); People v. Syjut, 17 N.W.2d 232, 234 (Mich.

1945); Higgins v. United States, 205 F.2d 650, 653 (9th

Cir. 1953); Kaplan v. United States, 241 F.2d 521, 522 n.3

(5th Cir. 1957). The New Jersey Supreme Court failed to

19

identify any pre-1957 decision referring to a defendant

who filed a pretrial motion as “unable to stand trial.”

The New Jersey Supreme Court instead reasoned

that only an expansive definition of “unable to stand trial”

would avoid making Article VI(a) redundant with the provision stating that the Agreement does not “apply to any

person who is adjudged to be mentally ill.” App., infra,

15a (quoting N.J. Stat. Ann. § 2A:159A-6(b)). But that

other provision serves the additional function of precluding the transfer of a mentally ill defendant from one State

to another. See, e.g., State v. Beauchene, 541 A.2d 914,

917 (Me. 1988). The two provisions are thus not redundant.

As the Fifth and Sixth Circuits have explained, the

phrase “unable to stand trial” had an established meaning

when the Agreement was drafted and came into force.

Because that “historical meaning controls,” George v.

McDonough, 142 S. Ct. 1953, 1963 (2022), and petitioner

was never physically or mentally disabled, the decision below is erroneous.

c. Even under the intermediate interpretation adopted by the First Circuit and the supreme courts of New

Hampshire and Florida, the decision below is still incorrect. Petitioner’s motions did not cause trial to be delayed

beyond the August 22 deadline. To the contrary, his motions were decided on the scheduled return date, June 29,

see App., infra, 33a-34a, and did not prevent trial from beginning by August 22. Instead, the reason for the delay

was the additional two weeks before the trial court issued

its opinion on the denial of those motions and the trial

judge’s unavailability for six weeks due to vacation and

other plans. For that reason as well, the decision below is

incorrect.

3. The New Jersey Supreme Court also answered the

closely related question whether a defendant has been

20

“brought to trial” at the point when jury selection begins,

even if the jury has not been sworn and jeopardy has not

attached. By looking to the beginning of jury selection,

the New Jersey Supreme Court misinterpreted an important provision of the Agreement.

The plain language of the Agreement, read in light of

its historical context, indicates that petitioner was not

“brought to trial” at the point when the trial court began

jury selection. Before the Agreement was drafted and

came into force, numerous state statutes required that defendants be “brought to trial” within a particular timeframe. Many of those statutes were modeled after the

English Habeas Corpus Act of 1679, which required trial

within “two terms.” See, e.g., People v. Den Uyl, 31

N.W.2d 699, 703 (Mich. 1948); State v. Keefe, 98 P. 122,

125-126 (Wyo. 1908); State v. Kuhn, 57 N.E. 106, 107 (Ind.

1900); Dillard v. State, 46 S.W. 533, 534 (Ark. 1898); State

v. Conrow, 35 P. 240, 241 (Mont. 1893); In re Edwards, 10

P. 539, 542 (Kan. 1886); Ex parte McGehan, 22 Ohio St.

442, 444 (1872); Ex parte Donaldson, 44 Mo. 149, 152

(1869). Other statutes instead used a specific number of

days or months. See, e.g., People v. Emblen, 199 N.E. 281,

283 (Ill. 1935) (four months); Yule v. State, 141 P. 570, 571

(Ariz. 1914) (60 days); In re Murphy, 34 P. 834, 835 (Wash.

1893) (same); People v. Camilo, 11 P. 128, 128 (Cal. 1886)

(same).

Under those statutes, the phrase “brought to trial”

was a term of art that referred to the time when a jury

was sworn and jeopardy attached. For example, in People

v. Hawkins, 59 P. 697 (1899), the California Supreme

Court held that a defendant could not move to dismiss the

indictment for a violation of the speedy-trial statute after

he had already been “brought to trial.” Id. at 697. The

court noted that the defendant moved to dismiss only after the jury had been “impaneled and sworn to try the

21

case,” which meant that “legal jeopardy” had “attached”

because the jury had been “charged with his deliverance.”

Ibid. At that point, the court reasoned, the defendant had

been “brought to trial” within the meaning of the speedytrial statute, and any objection had been forfeited. Ibid.;

see State v. Test, 211 P. 217, 218 (Mont. 1922); King v.

State, 201 P. 99, 100 (Ariz. 1921).

In reaching a contrary conclusion, the decision below

relied on two modern cases. But neither discussed the

historical meaning of “brought to trial.” See State v.

Bjorkman, 199 A.3d 263, 267-268 (N.H. 2018); Bowie v.

State, 816 P.2d 1143, 1147 (Okla. Ct. Crim. App. 1991).

For that reason, those cases are unpersuasive.

Under the established meaning of the phrase, petitioner was not “brought to trial” within the 180-day period. The jury was selected on July 24 and 25, but it was

not sworn (and jeopardy did not attach) until September

13. App., infra, 5a-6a, 10a n.2; see State v. Lynch, 399

A.2d 629, 635 (N.J. 1979). Petitioner was thus not brought

to trial within 180 days. Review is warranted on that related question as well.

B. The Questions Presented Are Exceptionally Important

And Warrant The Court’s Review In This Case

The questions whether a defendant is always “unable

to stand trial” under the Agreement while a pretrial motion is pending and whether a defendant has been

“brought to trial” when jury selection begins are important and recurring ones warranting this Court’s review.

1. Resolution of both questions would affect numerous criminal defendants. The correct interpretation of the

Agreement could make the difference between a lengthy

sentence and dismissal with prejudice. Without this

Court’s intervention, defendants who are identically situ-

22

ated in all respects except the jurisdiction in which their

charges are pending could face drastically different outcomes.

Defendants in New Jersey and other jurisdictions that

automatically toll the limitations periods under the Agreement are also at risk for abuse. As the Fifth Circuit has

observed, “[p]rosecutors might be tempted to delay preparing a response for invalid reasons, knowing that that

delay, though unreasonable and unnecessary, will not

count” under the Agreement. Birdwell, 983 F.2d at 1341

n.23. For their part, trial courts might be encouraged to

“delay ruling upon motions because of heavy dockets.”

Ibid. And defendants might be disincentivized from filing

meritorious motions or might be otherwise prejudiced.

Indeed, automatically tolling the clock while a defense

motion is pending could force a defendant to “feel restricted in litigating his case simply because he is fearful

that it will effectuate a tolling of his demand to be brought

to trial” under the Agreement. Diaz v. State, 50 P.3d 166,

169 (Nev. 2002) (Rose, J., dissenting).

Those incentives undermine one of the core purposes

of the Agreement. This Court has long recognized that

“[t]he adverse effects of detainers” were part of what

“prompted the drafting and enactment of the Agreement.” Mauro, 436 U.S. at 360. Permitting excessive delay, as the decision below does, will thwart the ability of

the defendant to “clear his record of detainers.” Nash,

473 U.S. at 730.

2. This case is an ideal vehicle to address the questions presented. The New Jersey Supreme Court was

squarely presented with, and answered, both questions.

That court also acknowledged the conflict concerning the

meaning of “unable to stand trial” in Article VI(a). See

App., infra, 18a-20a & n.6.

23

Under Article III(a) of the Agreement, the State was

obligated to bring petitioner to trial by August 22, 2018.

Although jury selection commenced on July 24, the jury

was not sworn—and jeopardy did not attach—until September 13. By answering both questions presented in the

State’s favor—holding that petitioner’s motions tolled the

deadline and that petitioner was “brought to trial” at the

point when jury selection commenced—the New Jersey

Supreme Court upheld petitioner’s conviction.

*

*

*

*

*

This case presents two important questions concerning the Interstate Agreement on Detainers. A whopping

nineteen federal courts of appeals and state courts of last

resort have now addressed the first question presented,

and as to both questions, the decision below ignores the

settled historical usage of the key phrases used in the

Agreement. Further review is necessary to ensure that

the Agreement accomplishes its purpose of protecting the

rights of incarcerated defendants through the timely disposition of pending charges.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ALEXANDER E. JONES

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

SEPTEMBER 2023

KANNON K. SHANMUGAM

BRIAN M. LIPSHUTZ

MATTEO GODI

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com