Petition — United States v. Ford

Supreme Court brief1977

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In the Supreme Court of the United States

OCTOBER TERM, 1977

UNITED STATES OF AMERICA, PETITIONER

RICHARD T. ForRD

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WADE H. McCree, Jz.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

MICHAEL W. FARRELL,

ELLIOTT SCHULDER,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

coe een AS

INDEX

Page

ATOLL ACTA ATE sian 1

EE SSE OREO SE REO ee Sw 1

ER ARTE ease 2

Statutes involved Pe een ue ewe 2

a a a 6

Reasons for granting the writ >>> 12

RE ee ee eee ee 22

SIE GN iicchienittbinndiiicnninsentithisalinanastiihdteiaslioed la

fhe IAS OA ESE Ee 30a

BORE Ts tiie cid bidescthibiell 32a

CITATIONS

Cases:

Barker v. Wingo, 407 U.S. 514 21

Califano v. Sanders, No. 75-1443, decided

ST, ne 18

Carbo vy. United States, 364 U.S. 611 _.. 16

Dickey v. Florida, 398 U.S. 30 —. 15

Peoples v. Hocker, 423 F.2d 960 __ aS 20-21

Peterson v. United States, 405 F.2d 102,

certiorari denied, 395 U.S. 938 _... 21

Rosencrans v. United States, 165 U.S.

EERE Re A RE a REI a 16

Smith v. Hooey, 393 U.S. 374 15

United States v. Cyphers & Ferro, Nos.

76-1131, 76-1160, decided February 8,

1977, petition for rehearing and rehear-

ing en banc, decided June 29, 1977. 21

United States v. Ferrara, 458 F.2d 868,

certiorari denied, 408 U.S. 931 _...._ 20

Cases—Continued Page

United States v. Mauro, 544 F.2d 588,

petition for a writ of certiorari pend-

ing, No. 76-1696 _.................. ae = S&F

United States y. Scailion, 548 F.2d 1168. 17, 20

United States v. United Continental Tuna

a eg as Eee 16-17

Statutes:

Interstate Agreement on Detainers Act,

84 Stat. 1397-1403, Sections 1-8, 18

U.S.C. App., pp. 4475-4478 4

Section 2, 18 U.S.C. App., pp. 4475-

RET REEDS PARE EP Sto 2

Speedy Trial Act of 1974, 88 Stat. 2076-

2085, 18 U.S.C. (Supp. V) 3161 et

seq. - ; 14

18 USC. (Supp. Vv) 3161(c) 17

18 U.S.C. (Supp. V) 3161(j) (1) _ 17

18 U.S.C. (Supp. V) 3161(j) (2) _ 17

18 U.S.C. (Supp. V) err 17

18 U.S.C. 371 - se ‘ 7

18 U.S.C. 924(c) (1) eth s Gee 7

Wes ee i 6

ee eee 6

| Se 7

if EE 5

28 U.S.C. S856 ................ 21

Mass. Gen. Laws, ch. 276, b Aa ‘ute

if | Yaanetae re)

Miscellaneous:

1976 Annual Report of the Attorney Gen-

eral of the United States 24... 14

Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

RICHARD T, FORD

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Second Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A,

infra) is reported at 550 F.2d 732.

JURISDICTION

The judgment of the court of appeals (App. B,

infra) was entered on February 3, 1977. A peti-

(1)

tion for rehearing with a suggestion for rehearing

en bane was denied on May 9, 1977 (Apps. C and D,

infra). On June 6, 1977, Mr. Justice Marshall ex-

tended the time for filing a petition for a writ of

certiorari to and including July 8, 1977. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

QUESTIONS PRESENTED

1. Whether a writ of habeas corpus ad prose-

quendum issued by a federal court to state authori-

ties, directing the production for trial on federal

criminal charges of a state prisoner against whom a

federal detainer has previously been lodged, con-

stitutes a “written request for temporary custody”

making applicable the terms and conditions of Ar-

ticle IV of the Interstate Agreement on Detainers

Act.

2. Whether respondent, by failing to raise the

issue in the district court, waived the claim that his

indictment should have been dismissed for violation

of the Interstate Agreement on Detainers Act.

STATUTES INVOLVED

1. Section 2 of the Interstate Agreement on De-

tainers Act, 84 Stat. 1397-1402, 18 U.S.C. App., pp.

4475-4477, provides in pertinent part:

Article II

As used in this agreement:

(a) ‘State’ shall mean a State of the United

States; the United States of America; a ter-

ritory or posSession of the United States; the

District of Columbia * * * .

Article III

(a) Whenever a person has entered upon a

term of imprisonment in a penal or correctional

institution of a party State, and whenever dur-

ing the continuance of the term of imprison-

ment there is pending in any other party State

any untried indictment, information, or com-

plaint on the basis of which a detainer has been

lodged against the prisoner, he shall be brought

to trial within one hundred and eighty days

after he shall have caused to be delivered to the

prosecuting officer and the appropriate court of

the prosecuting officer’s jurisdiction written no-

tice of the place of his imprisonment and his

request for a final disposition to be made of the

indictment, information, or complaint * * * .

or other official having custody of the prisoner

shall promptly inform him of the source and con-

tents of any detainer lodged against him and

shall also inform him of his right to make a re-

quest for final disposition of the indictment, in-

formation, or complaint on which the detainer is

based.

* * * * *

Article IV

(a) The appropriate officer of the jurisdiction

in which an untried indictment, information, or

complaint is pending shall be entitled to have a

prisoner against whom he has lodged a detainer

and who is serving a term of imprisonment in

any party State made available in accordance

with article V(a) hereof upon presentation of a

written request for temporary custody or availa-

bility to the appropriate authorities of the State

in which the prisoner is incarcerated: Provided,

That the court having jurisdiction of such indict-

ment, information, or complaint shall have duly

approved, recorded, and transmitted the request:

And provided further, That there shall be a

period of thirty days after receipt by the appro-

priate authorities before the request be honored,

within which period the Governor of the sending

State may disapprove the request for temporary

custody or availability, either upon his own mo-

tion or upon motion of the prisoner.

sible by this article, trial shall be commenced

within one hundred and twenty days of the ar-

rival of the prisoner in the receiving State, but

for good cause shown in open court, the prisoner

or his counsel being present, the court having

jurisdiction of the matter may grant any neces-

sary or reasonable continuance.

Article V

(a) In response te a request made under ar-

ticle III or article IV hereof, the appropriate

authority in a sending State shall offer to de-

liver temporary custody of such prisoner to the

appropriate authority in the State where such

indictment, information, or complaint is pend-

ing against such person in order that speedy

and efficient prosecution may be had * * * .

or fail to accept temporary custody of said per-

son, or in the event that an action on the in-

dictment, information, or complaint on the basis

of which the detainer has been lodged is not

brought to trial within the period provided in

article III or article IV hereof, the appropriate

court of the jurisdiction where the indictment,

information, or complaint has been pending shall

enter an order dismissing the same with preju-

dice, and any detainer based thereon shall cease

to be of any force or effect.

. 28 U.S.C. 2241 provides in pertinent part:

(a) Writs of habeas corpus may be granted

by the Supreme Court, any justice thereof, the

district courts and any circuit judge within their

respective jurisdictions. * * *

tend to a prisoner unless—

* s * * @

(5) It is necessary to bring him into

court to testify or for trial.

STATEMENT

1. In November 1971 the United States District

Court for the Southern District of New York issued

a warrant authorizing respondent’s arrest for bank

robbery. On October 11, 1973, federal agents exe-

cuting this (and one other) warrant arrested re-

spondent in Chicago. Shortly after his arrest, re-

spondent was turned over to Illinois authorities for

extradition to Massachusetts on older, unrelated

state charges. Upon respondent’s transfer to Massa-

chusetts, the federal bank robbery warrant was

lodged as a detainer with Massachusetts prison au-

thorities.

An indictment (74 Cr. 279) filed in the United

States District Court for the Southern District of

New York on March 21, 1974, charged respondent

with bank robbery and aggravated bank robbery,

in violation of 18 U.S.C. 2113(a) and (d). Pur-

suant to a writ of habeas corpus ad prosequendum

issued by the district court, respondent was pro-

duced from Massachusetts for arraignment before the

federal court in New York on April 1, 1974; he en-

tered a plea of not guilty to the indictment (R. App.

H; Tr. of April 1, 1974, pp. 4-5). Two days later, a

superseding indictment (74 Cr. 336) was filed charg-

ing respondent and another person, James R. Flynn,

' Respondent pleaded guilty to the Massachusetts charges on

February 8, 1974, and was sentenced to concurrent terms of

8 to 10 years imprisonment (App. A, infra, pp. 2a-3a; R. App.

F, 4). (“R. App.” and “G. App.” refer, respectively, to

respondent’s appendix and the government’s appendix in the

court of appeals).

with the same bank robbery charged in the super-

seded indictment, and also with use of a firearm in

the commission of a bank robbery (18 U.S.C. 924

(c)(1)), interstate transportation of a stolen auto-

mobile (18 U.S.C. 2312), and conspiracy (18 U.S.C.

371) (R. App. B). On April 15, 1974, respondent

pleaded not guilty to the charges in the new indict-

ment, but co-defendant Flynn failed to appear (Tr.

of April 15, 1974, 9:50 a.m., pp. 3-4).’ Trial was

thereafter set for May 28, 1974.

On May 17, 1974, the government moved, on the

basis of a showing contained in a sealed affidavit, to

adjourn the trial for a period of 90 days or until

Flynn was apprehended, whichever occurred first. The

motion was granted by the district court, and re-

spondent’s trial was rescheduled for August 21, 1974

(R. App. F; Tr. of May 22, 1974, pp. 2-8).° On

June 14, 1974, respondent sought and was granted

permission to be returned to Massachusetts, where

his attorney’s office was located, in order to facili-

tate preparation for trial (G. App. 2a; R. App. H;

App. A, infra, p. 3). In August 1974 the case was re-

assigned to a different district judge (following the

original judge’s resignation from the bench) and

* Flynn was apprehended on February 14, 1977, and has

since been brought to trial and convicted.

*In granting the adjournment, the court found no preju-

dice to respondent in the preparation of his defense and held

that the government was entitled to a reasonable interval to

attempt to apprehend Flynn so that judicial resources could

be conserved by having respondent and his co-defendant tried

jointly (Tr. of May 22, 1974, pp. 4, 6-8).

trial was reset for November 18, 1974 (R. App. D,

£12). On November 1, 1974, however, the govern-

ment requested an additional adjournment of up to

90 days in which to apprehend Flynn, and it filed

a second sealed affidavit in support of this motion

(R. App. G). On November 4, respondent moved te

dismiss the indictment on the ground that he had

been denied a speedy trial (R. App. D). The court

denied the speedy trial motion, granted the govern-

ment’s application for adjournment, and set a new

trial date of February 18, 1975 (App. A, infra, p.

4a).

On February 18, the district judge was engaged

in a lengthy stock fraud trial, and a new trial date

of June 11, 1975, was set. Respondent, although re-

newing his speedy trial claim, did not request reas-

signment of the case to another district judge (Tr. of

February 18, 1975, pp. 1-4). In the following month,

the district court announced a crash program for the

disposition of civil cases, to commence June 1. Be-

cause of this program, respondent’s trial was post-

poned a final time, until September 2, 1975.

The government secured respondent’s presence for

trial from Massachusetts prison authorities by means

of a writ of habeas corpus ad prosequendum issued

by the district court on August 8, 1975 (R. App. I).

At the beginning of trial, respondent moved again

to dismiss the indictment on speedy trial grounds;

the motion was denied (R. App. E; Tr. 2-3, 186).

Respondent was thereafter convicted by a jury on

all counts.‘ He was sentenced to concurrent terms of

five years’ imprisonment on each count (App. A, in-

fra, pp. 4a-5a).

2. On appeal to the Second Circuit, respondent

argued for the first time that his indictment should

have been dismissed with prejudice because he had

not been tried within 120 days after his initial -ar-

rival in the Southern District of New York, in al-

leged violation of Article IV(c) of the Interstate

Agreement on Detainers Act (“Agreement”), and

because he had been returned to state custody (fol-

lowing his arraignment) without having first been

tried on the federal charges, in alleged violation of

Article IV(e) of the Agreement.’ Article IV of the

Agreement provides that the prosecuting authority of

a member state which has criminal charges pending

against a defendant serving a prison sentence in an-

other member jurisdiction may lodge a detainer with

the prison authority of that jurisdiction and, upon

written request, obtain temporary custody of the

prisoner for purposes of trial. The Agreement furth-

er provides that a prisoner so procured must be tried

(a) within 120 days of his arrival in the receiving

state (except where a cont :-°nce is granted “for

good cause shown in open ce ._ in the presence of

‘During the six-day trial, 36 witnesses tes.ified for the

government and the stipulated testimony of 12 otaer witnesses

was read to the jury.

5 The United States joined the Agreement by Act of De-

cember 9, 1970, Sections 1-8, 84 Stat. 1897-1408, 18 U.S.C.

App., pp. 4475-4478. At all times relevant hereto, Massachu-

setts was also a party to the Agreement. Mass. Gen. Laws

Ch. 276, App. Sections 1-1 to 1-8. —

the prisoner or his counsel) and (b) prior to being

returned to the sending state, or else the charges

against him shall be dismissed with prejudice. Ar-

ticle IV(c), IV(e), and V(c).°

A divided panel of the court of appeals reversed

the conviction and remanded the case to the district

court with directions to dismiss the indictment with

prejudice (App. A, infra, pp. la-29a). The court

held that, whether or not a writ of habeas corpus ad

prosequendum used to secure custody of a state pris-

oner serves as a “detainer”’ (see United States v.

Mauro, 544 F.2d 588 (C.A. 2), petition for a writ of

certiorari pending, No, 76-1596), “once a federal

detainer has been lodged against a state prisoner, the

habeas writ constitutes a ‘written request for tem-

porary custody’ within the meaning of Article IV

of the Detainers Act” (App. A, infra, p. 21a). The

court rejected the government’s opposing argument

* Article III of the Agreement provides an alternative

means by which transfer of the prisoner may be accomplished.

Under Article III, prison officials are required to notify each

prisoner of any criminal charge on the basis of which a de-

tainer has been lodged against him by another jurisdiction,

and, further, to inform the prisoner of his right to request

trial on the charges underlying the detainer. The prisoner

may then act to clear such a detainer by filing a request with

the appropriate authorities in the prosecuting jurisdiction

for final disposition of the charge against him. He must

thereupon be brought to trial (a) within 180 days of delivery

of this request and (b) without being returned to the sending

state after his transfer to the prosecuting state, or else the

charges are subject to dismissal with prejudice. Articles III

(a), III(d), and V(c).

that the Agreement, while allowing prisoners to clear

detainers and to compel prompt disposition of pending

charges against them (Article III), was not intended

to affect the federal government’s concurrent right to

obtain custody of a prisoner for trial under the power

of the writ ad prosequendum.' The court reasoned

that failure to treat a writ as.a “request” under the

Agreement, if the writ was served after the lodging

of a detainer, “would vitiate [the] operation [of the

Agreement] insofar as it affects federal detainers,

since virtually all federal transfers are conducted pur-

suant to the writ” (App. A, infra, p. 20a); more-

over, it would “impair the operation of the Agree-

ment as a whole, since federal detainers form a large

percentage of ail detainers outstanding” (ibid.).°

* The court also rejected, without discussion, the govern-

ment’s alternative argume.t that respondent had waived any

claim under the Agreement by failing to raise such claim prior

to trial (Gov’t. Br., pp. 16-18).

* After thus concluding that the Agreement was applicable,

the court held that the provisions of Article IV(c) had been

violated. The majority ruled that the adjournments up to

February 18, 1975, were properly granted, but that the sub-

sequent adjournments neither were “for good cause” nor

granted with “the prisoner or his counsel being present.”

App. A, infra, pp. 23a-25a. Based upon this violation of the

Agreement, the court held that Article V(c) mandated dis-

missal of the indictment (id. at 25a).

In dissent, Judge Moore expressed his unwillingness “to

thwart the jury’s determination of guilt” on the basis of

calendar technicalities, “particularly where no showing of

prejudice therefrom has been made” (App. A, infra, pp. 28a-

29a).

REASONS FOR GRANTING THE WRIT

Article IV(a) of the Interstate Agreement on De-

tainers provides that the appropriate officer of a ju-

risdiction in which an untried indictment is pend-

ing may have a prisoner who is serving a prison

sentence in another jurisdiction and “against whom he

has lodged a detainer” made available for prosecution

“upon presentation of a written request for temporary

custody or availability” to the proper authorities of

the incarcerating State. Our petition in United States

v. Mauro, No. 76-1596, presents the issue whether a

writ of habeas corpus ad prosequendum, directing the

production of a state prisoner for federal trial, itself

constitutes the “detainer” that is a prerequisite to

activation of the terms and conditions of the Agree-

ment.

In the instant case a federal detainer was in fact

lodged against respondent, after which his transfer

was achieved by means of the writ. The present peti-

tion, therefore, presents the important and related

question whether a writ of habeas corpus ad prose-

quendum issued after a detainer against a state

prisoner has been lodged must be regarded as a “re-

quest” making applicable the provisions of Article IV

of the Agreement. The court of appeals concluded

that, regardless of the correctness of its decision in

Mauro* (see App. A, infra, p. 16a), a writ issued

by a federal] district judge after a detainer has been

*The author of the majority opinion below dissented in

Mauro.

lodged against a state prisoner must be considered a

written “request” under the Agreement.

This decision, no less than the court of appeals’

prior holding in Mauro, has left federal prosecutors

profoundly uncertain about whether, and under what

conditions, they may continue to use the historic writ

of habeas corpus ad prosequendum to obtain custody

of state prisoners for trial. Although prosecutors

often employ the writ to secure the presence of pris-

oners against whom no detainer has been lodged, as

was the case in Mawro, in a large number of cases

custody of the prisoner is obtained after a detainer

has been filed with the state authorities.”

Moreover, the problem raised by possible applica-

tion of the Agreement to cases in which federal

charges are prosecuted against state prisoners is one

of substantial dimensions. While no statistics are

kept regarding the number of ad prosequendum writs

issued to secure the presence of state prisoners, the

United States Attorney for the Southern District of

New York, where this case arose, estimates that ap-

proximately 100-150 such writs are issued annually

to state prison authorities in relation to trials in

that district alone, a figure equalling approximately

five percent of all defendants against whom crim-

inal charges are preferred. If the experience of that

% Although this case and. Mauro involve related issues

under the Agreement, resolution of either case alone would

likely not be dispositive of the other. In view of this fact, and

the fact that numerous writs are issued both with and with-

out the lodging of detainers, we do not recommend that the

Court grant one petition while holding the other petition

pending its disposit.on.

district, which accounts for about four percent of

the nationwide total of federal criminal prosecu-

tions," is typical, there may be 2,500-3,000 defendants

each year whose cases could be affected by the dis-

position of the issues raised in Mauro and in the

instant case.

Federal prosecutors thus need to know with cer-

tainty what effect, if any, the lodging of a detainer

will have upon the procedures that they follow to ob-

tain state prisoners against whom federal charges

are pending. The issue is further complicated by the

fact, that the Speedy Trial Act of 1974” establishes

procedures governing the transfer and prosecution of

state prisoners that in some respects differ widely

from those set forth in the Agreement. As a conse-

quence of the decisions in this case and Mauro, fed-

eral prosecutors in the Second Circuit apparently

must observe one set of standards for obtaining and

trying state prisoners and a second set of standards

for obcaining and trying federal prisoners. Granting

the petitions in Mawro and this case will permit this

Court to define the government’s obligation with re-

spect to the transfer of state prisoners by clarifying

the relationship between the Agreement, the Speedy

Trial Act, and the writ of habeas corpus ad prose-

quendum.

In fiscal 1976, federal criminal charges were filed against

58,794 individuals nationwide, including 2,370 individuals

in the Southern District of New York. See 1976 Annual Re-

port of the Attorney General of the United States 24.

2 88 Stat. 2076-2085, 18 U.S.C. (Supp. V) 3161 et seq.

1. Contrary to the decision below, we submit that

neither the purpose nor the terms of the Agreement

compels the conclusion that in »r .cting it as federal

law, Congress intended to impose new and more rig-

orous conditions on federal prosecutors who obtain

state prisoners by use of the writ of habeas corpus

ad prosequendum. The United States, which has his-

torically obtained state prisoners by use of the writ,

did not become a party to the Agreement until 1970,

shortly after this Court ruled that States had to ex-

pand their efforts to obtain federal prisoners facing

state charges in order to assure them speedy trials.

Smith v. Hooey, 393 U.S. 374; Dickey v. Florida, 398

U.S. 30. At that time, therefore, it was especially

important that the States be given a pracjigal and

efficient method of obtaining federal prison for

trial on state charges. Article IV of the Agreement

thus allows member States to obtain federal prisoners

in the simplified manner used to obtain prisoners

from other member States; on the other hand, it

provided no comparable benefits to federal prosecutors

who were already empowered to secure state prisoners

by writ of habeas corpus ad prosequendum.

Read against this background, the language of sev-

eral provisions of Article IV raises severe doubt that

Congress intended to subject federal prosecutions

maintained with the aid of writs of habeas corpus ad

prosequendum to the terms of the Agreement. For ex-

ample, the speedy trial provisions of Article IV(c)

invoked by respondent here apply to “any proceeding

made possible by this article.” Although that lan-

guage seems appropriate in the case of a State re-

ce'ving custody of a prisoner under the Agreement

ier than through the cumbersome extradition

process, it has no application when the federal gov-

ernment proceeds by the traditional writ of habeas

corpus ad prosequendum. Production of state pris-

oners pursuant to the writ had been routine well

before 1970 and was not in any sense “made pos-

sible’ by federal subscription to the Agreement.

In addition, Article IV(a) provides that “there

shall be a period of thirty days after receipt * * *

before the request [for temporary custody] be hon-

ored, within which period the Governor of the sending

State may disapprove the request * * *, either upon

his own motion or upon motion of the prisoner.”

Were this provision deemed applicable to writs of

habeas corpus, it could severely limit the efficacy of an

instrument that this Court has recognized as a “nec-

essary * * * tool for jurisdictional potency as well as

administrative efficiency.” Carbo v. United States,

364 U.S. 611, 618."

13 While the Court in Carbo left open the question whether

the nationwide enforceability of the writ of habeas corpus

depended upon cooperation by the States (364 U.S. at 621,

n. 20), it seems strained at best to conclude that Congress

abandoned any claim that the writ constitutes compulsory

process by adopting the Agreement or that it thereby rede-

fined the writ as an administrative “request” subject to dis-

approval by the Governor of a sending State. Before Congress

is held to have imposed such limitations on exercise of the

writ, the statute or legislative history should indicate a clear

intention to do so. Rosencrans v. United States, 165 U.S. 257,

262-263 ; see United States v. United Continental Tuna Corp.,

2. The conclusion of the court of appeals that

Congress intended in 1970 to impose new and strin-

gent conditions on use of the writ of habeas corpus ad

prosequendum by federal prosecutors also is incon-

sistent with Congress’ enactment four years later of

the Speedy Trial Act of 1974. In that legislation

Congress included specific provisions governing the

interjurisdictional transfer of a prisoner “charged

with an offense [and] serving a term of imprison-

ment in any penal institution.” 18 U.S.C. (Supp. V)

3161(j) (1). The Act requires the government either

to “undertake to obtain the presence of the prisoner

for trial” or to “cause a detainer to be filed with the

person having custody of the prisoner,’ who is then

obliged to inform the prisoner of the detainer and of

his right to demand a trial. If such a demand is

made, the government must promptly seek to obtain

the prisoner’s presence. 18 U.S.C. (Supp. V) 3161(j)

(1) to (3).

Although these provisions in some respects echo

those of the Agreement, in other and significant re-

spects they are quite different. Thus, the Speedy

Tria! Act t » ides that trial must take place within

66 ays om «°raignment (18 U.S.C. (Supp. V) 3161

(c)) while the Agreement provides that trial must

occur within 120 days of arrival of the prisoner in

the receiving State (Article IV(c)). On the other

425 U.S. 164, 168-169. The legislative history of the Agree-

ment contains no suggestion of any such congressional intent.

As the Fifth Circuit noted in United States v. Scallion, 548

F.2d 1168, 1173, the committee reports simply do not mention

the writ.

hand, the Act has elaborate tolling provisions, which

the Agreement does not. Similarly, the Agreement

provides that the prisoner may not be returned to the

sending state before trial (Articles III(D), IV(e));

the Act has no such provision.

Nothing in the language or legislative history of the

Speedy Trial Act suggests a belief by Congress that

the United States was already operating under a

comprehensive scheme governing the federal trial of

state prisoners—which the Agreement, as construed

by the court of appeals here and in Mauro, would

be. Indeed, the legislative history refers only to simi-

lar arrangements among States and suggests by nega-

tive implication that the federal government was not

thought to be subject to comparable restrictions.

There is no evidence of congressional recognition of

the potential redundancy of this portion of the Speedy

Trial Act. Although the enactments of a latei’ Con-

gress are not conclusive regarding the intent of an

earlier Congress, the Speedy Trial Act nevertheless

makes less tenable the proposition that Congress, in

adopting the Agreement, had intended to define the

exclusive terms upon which the federal government

might obtain custody of prisoners for prosecution.

See Califano v. Sanders, No. 75-1443, decided Febru-

ary 23, 1977, slip op. 6-7.

3. The court of appeals, in holding that the writ

ad prosequendum becomes a “request” under the

Agreement once a detainer has been lodged, stressed

that the Agreement was intended to remedy the

negative effects of outstanding detainers upon pro-

grams of prisoner rehabilitation and noted the fact

that “federal detainers form a large percentage of

all detainers outstanding” (App. A, infra, p. 20a).

That reasoning, however, provides little basis for sub-

jecting the United States to Article IV’s conditions

on cooperative transfers between member States. As

previously noted, Article III provides that a prisoner

must receive notice of any detainer lodged against

him and that he may thereafter request, and must

receive, speedy disposition of all charges to which

the detainer relates. Thus the prisoner in any

event retains the choice whether to endure the pos-

sible effects (if any) of an outstanding detainer or

face prompt trial and perhaps conviction for an-

other offense. So long as the prisoner is free to re-

quire disposition of charges under Article III of the

Agreement, there is no compelling reason to attribute

to Congress an intent to make federally-initiated

transfers by writ of habeas corpus ad prosequendum

subject to the restrictions of Article IV as well.”

4. Even if the provisions of Article IV(c) are

applicable and were violated in this case, we believe

that respondent waived any such violation by failing

to present the issue to the district court. Respondent

1 The policies underlying the Agreement were fully served

in this case. As the record illustrates, respondent's ability or

desire to participate in rehabilitation programs was not seri-

ously impaired by the existence of the detainer, for following

his return to Massachusetts at his own request, respondent

participated in a meaningful program and succeeded in earn-

ing a high school equivalency diploma. Additionally, there

is no evidence that respondent was hampered in preparing his

defense as a result of the delay in proceeding to trial.

Te a, aT:

offered no explanation for his failure to raise this

claim until his appeal, nor are there any exceptional

circumstances present here which otherwise require

that this omission be excused.” His failure to in-

voke the Agreement here in a timely fashion should

have precluded the court below from considering his

claim. This is particularly so because a timely as-

sertion of the contention that his case was subject

to the restrictions of Article IV of the Agreement

might have alerted the prosecution and the district

court to the problem and caused the proceedings

to be conducted in conformity with the strictures of

Article IV.

In United States v. Scallion, 548 F.2d 1168,

1174, the Fifth Circuit held, in considering 2 claim

under the Agreement that it also rejected on other

grounds, that the defendant had waived any viola-

tion of Article IV’s speedy trial provisions “by failing

to present the issue to the district court or this court

prior to his amended petition for rehearing” (548

F.2d at 1174). The court noted (ibid.) that failure

to raise even a constitutional speedy trial claim be-

fore or during trial has been held a waiver of that

claim (see United States v. Ferrara, 458 F.2d 868,

875 (C.A. 2), certiorari denied, 408 U.S. 931; Peo-

* Respondent twice moved to dismiss the indictment on

traditional speedy trial grounds, but he never invoked any

right under the Agreement until his appeal. Respond-

ent’s motions to dismiss for an asserted violation of his con-

stitutional speedy trial right should not be permitted to do

service for his failure to raise in a timely manner the specific

claim of noncompliance with the terms of the Agreement.

ples v. Hocker, 423 F.2d 960, 966 (C.A. 9); Peter-

son v. United States, 405 F.2d 102, 108 (C.A. 8),

certiorari denied, 395 U.S. 938; see also Barker v.

Wingo, 407 U.S. 514, 531-532) and that the defend-

ant “ha[d] offered no explanation for his failure

to raise the Agreement issue before the district court

or earlier on his appeal * * *” (548 F.2d at 1174).

Although the court of appeals in the present case did

not discuss the government’s waiver argument (see

note 8, supra), its decision necessarily places it in

conflict with the position of the Fifth Circuit.”

The importance of this separate issue depends, of

course, upon the applicability of the Agreement in

the first place. After the decision of the district court

in United States v. Mauro, supra, numerous prison-

ers who had been obtained from state prisons by

writ of habeas corpus ad prosequendum began as-

serting rights under the Agreement, often for the

first time on appeal or on motions for collateral re-

lief.’ Should this Court hold that the Agreement

1° In United States v. Cyphers and Ferro, C.A. 2, Nos. 76-

1131, 76-1160, decided February 8, 1977, petition for rehearing

and rehearing en bane denied on June 29, 1977, in which a

detainer had been lodged against the defendant, the Second

Circuit noted that there had been “no showing that [defend-

ant] knew, prior to trial, that [a] detainer had been lodged

against him” (slip op. 1745). Under those circumstances the

court held that the defendant properly invoked the Agree-

ment for the first time on appeal.

17 We are informed by the United States Attorney for the

Eastern District of New York that in that district alone

approximately 20 prisoners have recently sought relief under

28 U.S.C. 2255, raising the applicability of the Agreement to

transfers by writ of habeas corpus ad prosequendum.

applies to prosecutions aided by such transfers, the

question whether defendants in those waived their

rights by neglecting to raise the issue before or

during trial would assume substantial importance. In

that event, we would urge this Court to resolve the

existing conflict between the Second Circuit and the

Fifth Circuit on this issue.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be granted.

WADE H. MCCREE, JR.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

MICHAEL W. FARRELL,

ELLIOTT SCHULDER,

Attorneys.

JULY 1977.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 419—September Term 1976

(Argued November 5, 1976

Decided February 3, 1977)

Docket No. 76-1319

UNITED STATES OF AMERICA, APPELLEE

—against—

RICHARD T. FORD, DEFENDANT-APPELLANT

Before: MooRE, MANSFIELD AND MESKILL, Circuit

Judges.

MANSFIELD, Circuit Judge:

After lodging a detainer against appellant with

state prison authorities in Massachusetts, where he

was incarcerated, the federal government, on March

24, 1974, used a writ of habeas corpus ad prosequen-

dum to obtain appellant’s presence in the Southern

District of New York for purposes of arraignment

on charges arising out of a Middletown, New York,

bank robbery.’ Despite his repeated requests for a

prompt trial and despite the fact that Article IV(c)

of the Interstate Agreement on Detainers Act (De-

tainers Act)* requires trial within 120 days unless

continuances are granted for good cause in open court,

the imprisoned appellant was not tried until Septem-

ber 2, 1975, more than 17 months later. Because of

the failure to comply with the speedy trial require-

ments of Article IV(c) and because Article V(c) of

the Act mandates that in such event the indictment

be dismissed with prejudice, we reluctantly reverse,

with directions to dismiss the indictment.

Federal authorities arrested appellant in Chicago

on October 11, 1973, on two federal warrants—one

for bank robbery issued by the Southern District of

New York and one for unlawful flight issued by the

District of Massachusetts. The unlawful flight charge

was dismissed but appellant also faced various state

charges filed against him in Massachusetts. He was

therefore turned over to Chicago authorities for ex-

tradition to Massachusetts for trial on state charges,

and the federal warrant issued by the Southern Dis-

‘ Appellant was charged with bank robbery in violation of

18 U.S.C. § 2113(c), using firearms to commit the bank rob-

bery in violation of 18 U.S.C. §924(c)(1), transporting a

stolen automobile from Massachusettes to New York two days

prior to the bank robbery in violation of 18 U.S.C. §§ 2312

& 2, and conspiracy to commit the above offénses in violation

of 18 U.S.C. § 871.

? Pub. L. No. 91-538, §§ 1-8, 84 Stat. 1897 (1970), reprinted

in 18 U.S.C.A. app. at 111 (Supp. 1976).

trict for bank robbery was lodged with the Massa-

chusetts authorities as a detainer. Appellant pleaded

guilty to the Massachusetts charges and was sen-

tenced to concurrent terms of 8 to 10 years.

On March 21, 1974, an indictment for bank rob-

bery was filed in the Southern District of New York,

and on March 24 a writ of habeas corpus ad prose-

quendum was used to obtain custody of appellant for

arraignment. On April 1, the government filed its

notice of readiness for trial as required by Rule 4 of

the Plan for the Prompt Disposition of Criminal

Cases of that district. Two days later, however, the

government filed the present susperseding indictment,

naming in addition one James P. Flynn, who there-

upon took flight. On April 15, appellant pleaded not

guilty. Trial was set for May 28, 1974.

Shortly before trial was to commence, on May 17,

the government requested the first of what was to

become a long series of delays, moving to adjourn

the trial for 90 days or until Flynn was apprehended,

whichever came first, and supporting its motion by

sealed affidavit. Over appellant’s vigorous protests,

the motion was granted and trial was set for August

21. Following the granting of the adjournment, ap-

pellant requested to be returned to Massachusetts cus-

tody, so that he and his attorney could more conven-

iently prepare for trial and because his family was

in Massachusetts. He was returned on June 14, 1974.

In August, after the original judge, Judge Bau-

man, resigned from the bench, the case was assigned

to Judge Motley. Without explanation, the trial date

was postponed to November 18. On November 1, the

government again moved for an adjournment of 90

days within which to ap :shend appellant’s co-defend-

ant, again supporting its motion by sealed affidavit.

On November 4 the defense moved to dismiss the in-

dictment on the ground that appellant had been de-

nied a speedy trial. The district court denied the

speedy trial motion and granted the further adjourn-

ment, setting trial for February 18, 1975.

On the date set for trial, however, the trial judge

was engaged in another trial. lespite the fact that

we had recently emphasized that calendar congestion

could not justify delay of a criminal trial and stated

that under such circumstances the trial judge should

sua sponte transfer the case to another judge for

prompt trial,® trial was postponed another four

months, to June 11. The defense reiterated its speedy

trial objections. In the following month the Southern

District of New York undertook a crash program for

civil cases, to begin June 1. When the government

sought to ascertain whether appellant’s trial would

be affected, Judge Motley, sua sponte, set a new trial

date of September 2, 1975. Defense counsel] was sub-

sequently notified.

On August 8 the government obtained appellant

from Massachusetts for trial by way of a second writ

of habeas corpus ad prosequendum. At the beginning

of trial appellant against moved for a dismissal of

* United States v. Drummond, 511 F.2d 1049, 1053 (2d Cir.),

cert. denied, 423 U.S. 844 (1975).

the indictment for failure to provide a speedy trial.

This motion, like his first, was denied. Appellant was

convicted on all counts and was sentenced to concur-

rent 5-year terms. Judge Motley recommended that

the federal terms be allowed to run concurrently with

the Massachusetts state terms appellant was already

serving.

DISCUSSION

Because we uphold appellant’s claims under the De-

tainers Act, we need not discuss his other claims.*

Many of the questions treated by the government here

as open were recently settled in this circuit by our

decision in United States v. Mauro, Slip Opin. at 265

(2d Cir. Oct. 26, 1976) (Dkt. Nos. 76-1251, 76-1252),

where we held that under the Detainers Act the

United States is bound by the statute’s definition of

it as both a sending and a receiving “State” and that

the writ of habeas corpus ad prosequendum consti-

tutes a “detainer” and a “request” by a prosecuting

authority within the meaning of the Act, with the

present author dissenting in that case from the ma-

jority’s holding that a writ of habeas corpus ad prose-

quendum constitutes a “detainer.” The government

here, however, has conceded that appellant in this

case was subject to a detainer, separate and apart

‘In addition to his Detainer Act arguments, appellant

claims that the government failed to file a notice of readiness

for trial of its second indictment within six months as required

by Rule 4 of the Plan for Prompt Disposition of Criminal

Cases of the Southern District of New York and failed to

accord him a speedy trial as required by the Sixth Amnedment.

from the writ, filed by it with the Massachusetts

authorities.. Whether the writ independently consti-

tutes a detainer, therefore, is not at issue here.

Granting that appellant here was subject to a “de-

tainer” and that he was obtained by the federal au-

thorities through a “request” as that term is used

in Article I1V(a) of the Act, under Mauro it is clear

that the Detainers Act applies. Strictly speaking, this

case therefore presents only two questions under the

Act: (1) whether the Act was violated and, (2) if

so, whether such violation warrants reversal of the

conviction below. Because the government argues

strenuously that the writ of habeas corpus cannot

constitute a “request” under Article IV of the Act,

however, we will begin with a review of the reasons

for our disagreement with the government’s position.

The government’s argument rests upon a proviso

in Article IV(a) to the effect that, after receipt by

appropriate state authorities of a request from an-

other jurisdiction for custody of a prisoner, there

shall be a 30-day waiting period during which the

governor of the sending state may disapprove the re-

quest and thus in effect dishonor it.‘ If a habeas writ

* Warrants are commonly used as detainers. See Note, 48

Column. L. Rev. 1190, 1190-91 & nn.6-7 (1948).

* The text of the proviso reads as follows:

“And provided further, That 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

were treated as a “request,” the argument goes, the

effect would be a sub silentio partial repeal of 28

U.S.C. § 2241(c) (5), which 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.’ Since a partial repealer of

that section should not lightly be inferred, see Rosen-

crans v. United States, 165 U.S. 257 (1897), the

argument goes, the writ should not be held to consti-

tute a “request,” and therefore the government here

should be freed from the trial limitations of the De-

tainers Act.

Although the government’s argument might at first

blush appear to have some theoretical appeal, the his-

tory and purpose of the Act indicates that the Article

IV(a) proviso was aimed merely at preserving the

existing law with respect to interstate transfers,

under which the governor of the sending state might

refuse to turn over a prisoner to another state, as

distinguished from federal authorities. However, re-

gardless of the reach of that proviso—and this issue

is not before us, since the Governor of Massachusetts

has never refused to honor the federal writ of habeas

corpus commanding that Ford be produced—a review

for temporary custody or availability, either upon his

own motion or upon motion of the prisoner.”

Article IV (a).

728 U.S.C. § 2241(c) (5) provides:

“The writ of habeas corpus shall not extend to a prisoner

unless— ... (5) It is necessary to bring him into court

to testify or for trial.”

of the structure and purposes of the Detainers Act

makes it abundantly clear that its speedy trial provi-

sions were intended to apply to the federal govern-

ment as a “State” under the Act.

The Detainers Act was originally drafted in re-

sponse to a variety of problems arising out of the then

unregulated system of detainers commonly used where

one or more jurisdictions had charges outstanding

against a prisoner held by another jurisdiction. Under

that system, once one of the jurisdictions had tried

and convicted him the other jurisdictions, instead of

trying him on their charges, would simply file de-

tainers with the prison authorities holding him. The

detainers would serve to notify the prison authorities

that charges were pending against the prisoner else-

where. Upon the prisoner’s completion of the first

prison term, the second jurisdiction could bring the

defendant to trial on its own charges and, should a

conviction be obtained, still other jurisdictions desir-

ing to press charges might then file detainers with

the prison where he was next incarcerated.

The disadvantages and potential abuses of this sys-

tem were many.’ Prison authorities often accorded

8 The detainer system has evoked a considerable amount of

critical controversy. See, e.g., Hincks, The Need for Comity in

Criminal Administration, Fed. Prob. 3 (July-Sept. 1945) ;

Bennett, The Correctional Administrator Views Detainers,

Fed. Prob. 8 (July-Sept. 1945) ; Perry, Effect of Detainers on

Sentencing Policies, Fed. Prob. 11 (July-Sept. 1945) ; Heyns,

The Detainer in a State Correctional System, Fed. Prob. 13

(July-Sept. 1945); Bates, The Detained Prisoner and His

Adjustment, Feb. Prob. 16 (July-Sept. 1945); Note, The

detainers considerable weight in making decisions

with respect to the terms and conditions of the pris-

oner’s incarceration and release on parole. Sometimes

the prisoner would automatically be held under maxi-

mum security.” Sometimes he would be ineligible for

special work programs, athletic programs, release for

visits to relatives’ death beds or funerals, or special

minimum security facilities.“ Often detainers pre-

Detainer: A Problem in Interstate Criminal Administration,

48 Column. L. Rev. 1190 (1948) ; Donnelly, The Connecticut

Board of Parole, 32 Conn. B.J. 26, 45-48 (1958); Bennett,

“The Last Full Ounce,” Fed. Prob. 20 (June 1959) ; Comment,

The Detainer System and the Right to a Speedy Trial, 31

U. Chi. L. Rev. 535 (1964) ; Note, Convicts—The Right to a

Speedy Trial and the New Detainer Statutes, 18 Rutgers L.

Rev. 828 (1964); Schindler, Interjurisdictional Conflict and

the Right to a Speedy Trial, 35 U. Cin. L. Rev. 179 (1966) ;

Note, Detainers and the Correctional Process, 1966 U. Wash.

L. Rev. 417; Note, Effective Guaranty of a Speedy Trial for

Convicts in Other Jurisdictions, 77 Yale L.J. 767 (1968).

* See, e.g., Note, 1966 Wash. U.L.Q. 417, 418 n.10. In

United States v. Maroney, 194 F. Supp. 154, 156 (W.D. Pa.

1961), a 19-year old defendant was sent to a “maximum

medium” institution while his 20-year old co-defendant was

sent to an institution for youthful offenders, solely because of

a charge pending against the former.

° See, e.g., United States v. Candelaria, 131 F. Supp. 797,

799, S.D. Cal. 1955) (because of detainer, defendant denied

trusty status, parole, outside work, good inside work assign-

ments); United States v. Maroney, 194 F. Supp. 154, 156

(W.D. Pa. 1961) (outside work and good inside work assign-

ments); State v. Baker, Crim. No. 85611 (C.P. Hamilton

Cty. Ohio, March 30, 1966) (federal honor farm rights, good

behavior job privileges) ; Note, 48 Colum. L. Rev. 1190, 1192

& n.19 (1948) (trusty status); Donnelly, 32 Conn. B.J. 26,

47 (1958) (trusty status, transfers to farms and work

10a

cluded the granting of parole.“* Despite these serious

consequences, virtually any law enforcement officer—

prosecutor, policeman, or judge—could file a detainer

without any procedural prerequisites.” No pending

camps); Note, 1966 Wash. U.L.Q. 417, 418-19 & nn.11-16,

421-22 n.22 (transfers to minimum security areas, trusty

status, job assignments, honor camps, athletic contests, visits

to death beds or funerals, Christmas discharge). See also

Note, 18 Rutgers L. Rev. 828, 835 (1964); Schindler, 35 U.

Cin. L. Rev. 179, 181 (1966).

1! See, e.g., United States v. Maroney, 194 F. Supp. 154,

156 (W.D. Pa. 1961); Pellegrini v. Wolfe, 225 Ark. 459, 283

S.W.2d 162 (1955); Ex parte Schechtel, 103 Colo. 77, 82

P.2d 762, 763 (1938); State v. Kalkbrenner, 263 Minn. 245,

116 N.W.2d 560 (1962); Jones v. State, 164 So.2d 799, 800

(Miss. 1964); State v. Milner, 78 Ohio L. Abs. 285, 286,

149 N.E.2d 189, 190 (C.P. Montgomery Cty. 1958) ; Cane Vv.

Berry, 356 P.2d 374 (Okla. Crim. App. 1960); Hincks, Fed.

Prob. 3, 3 (July-Sept. 1945) ; Heyns, Fed. Prob. 13, 14 (July-

Sept. 1945); Note, 48 Column. L. Rev. 1190, 1193 & n.22

(1948); Donnelly, 32 Conn. B.J. 26, 47 (1958); Note, 1966

Wash. U.L.Q. 417, 420-21 & nn.17-21. See also Note, 18

Rutgers L. Rev. 828, 835 (1964). The United States Board

of Parole changed its automatic denial policy to one of indi-

vidual evaluation in 1954. Bennett, Fed. Prob. 20, 22 (June

1959).

1 See, e.g., State ex rel. Faehr v. Scholar, 106 Ohio App.

899, 155 N.E.2d 230 (1958) (denying mandamus to force

chief of police to file affidavit and warrant against petitioner

or, in the alternative, to withdraw detainer) ; Schindler, 35

U. Cin. L. Rev. 179, 181 & n.9 (1966); Note, 1966 Wash.

U.L.Q. 417, 417 & nn.3-4 James Bennett, Director of the

Federal Bureau of Prisons, wrote in 1945:

“The experienced prison warden knows that it is easy

to file a ‘hold’ against a prisoner for the slightest cause

and without the necessity of making out a prima-facie

case. Indeed many police departments and sheriffs can

file them merely on suspicion. No matter what the basis,

lla

indictment or other formal notification of charges

was generally required. Indeed, it was estimated that

as many as 50%of all detainers were allowed to lapse

on the prisoner’s release, without any attempts at

prosecution by the jurisdiction that had filed the de-

tainer.* There were even cases in which the only

reason the detainer had been filed was to increase

the severity of the prisoner’s sentence.“ Thus de-

they all operate alike to prevent parole, intensify custody

precautions, and increase tensions.”

Bennet, Fed. Prob. 8, 9 (July-Sept. 1945). See also People v.

Bryarly, 23 Ill.2d 313, 178 N.E.2d 326 (1961) (detainer

despite announced intention of state not to prosecute) ; Crow

v. United States, 323 F.2d 888 (8th Cir. 1965) (detainer

based on complaint, not indictment).

18 Commissioners’ Preface to Uniform Mandatory Disposi-

tion of Detainers Act, 9B U.L.A. 368, 364 (1966); Note, 18

Rutgers L. Rev. 828, 835 (1964). Director Bennett estimated

that in fiscal year 1958, of 325 detainers disposed of at one

federal prison, 211 were abandoned without trial, and only

114 were executed. He commented, “The nuisance value of

detainers is illustrated by the 211 detainers lifted at Leaven-

worth during the year, usually about the time the prisoners

involved were finishing their sentences.” Bennett, Fed. Prob.

20, 21 (June 1959).

%* See People v. Kenyon, 39 Misc.2d 876, 879, 242 N.Y.S.2d

156, 159 (Schuyler Cty. Ct. 1963); Note, 1966 Wash. U.L.Q.

417, 423; Note, 77 Yale L.J. 767, 772-73 & nn.43-44 (1968).

Sanford Bates, Commissioner of the New Jersey Department

of Institutions and Agencies, in the 1945 symposium that ulti-

mately led to the promulgation of the Agreement wrote of

federal abuse of the detainer system:

“There have been instances, fortunately rare, where Fed-

eral judges or prosecuting attorneys have filed warrants

against a committed defendant for the sole purpose of

12a

tainers imposed major unjustifiable hardships on

prisoners, and, prior to adoption of the Agreement

on Detainers, there was nothing a prisoner could do

about them.

In addition, the pending charges forming the basis

of a detainer might themselves significantly impede

the development of a coherent program for the pris-

oner’s punishment and rehabilitation. Often the vari-

ous charges would arise out of a single criminal epi-

sode or out of events occurring within a short period

of time. Instead of permitting coordination of sen-

tencing and rehabilitation, the old detainer system

often inhibited fair sentencing and effective rehabili-

tation. The first judge, in sentencing a defendant

against whom a detainer had been lodged, would have

to decide whether to disregard the other pending al-

leged offenses or lengthen the sentence to take those

offenses into account. The other offenses, if proven,

would clearly be relevant in determining whether the

offense which was to be the subject of the first sen-

tence was an isolated incident and what length of

custody might be necessary for the defendant’s re-

preventing parole consideration in his case. I have known

of cases where two separate charges were filed for the

same set of acts; a sentence was imposed on one of them,

prosecution suspended on the other, and a warrant filed

in the institution to which the defendant was sent with

no intention of enforcing it but for the mere purpose of

delaying parole.”

Bates, Fed. Prob. 16, 17 (July-Sept. 1945). Cf Cane vy. Berry,

356 P.2d 374 (Okla. Crim. App. 1960) (allegations of such

abuse).

No SEE OS

ity etn 4,

13a

habilitation. On the other hand, if the judge meted

out a long sentence, taking the other offenses into

account, there was nothing to prevent other jurisdic-

tions, after they had tried and convicted the defend-

ant on the pending charges, from punishing the de-

fendant further for those offenses.’ Since, by the

nature of the detainer system, the sentences would

be served consecutively, the prisoner would then serve

a total sentence longer than that intended by the first

sentencing judge.” Similarly, parole boards and

prison authorities found it difficult to formulate the

prisoner’s rehabilitative program, since they were

forced to act without knowing whether the prisoner

would be convicted on the other pending charges.”

15 For a discussion of the problems facing sentencing judges

under the detainer system, see Hincks, Fed. Prob. 3, 3-6 (July-

Sept. 1945); Bennett, Fed. Prob. 8, 8-9 (July-Sept. 1945) ;

Perry, Fed. Prob. 11, 11-12 (July-Sept. 1945); Bates, Fed.

Prob. 16, 17 (July-Sept. 1945); Donnelly, 32 Conn. B.J. 26,

46 (1958).

1% See 1966 Wash. U.L.Q. 417, 423. In United States v.

Candelaria, 131 F. Supp. 797 (S.D. Cal. 1955), the court had

originally sentenced the defendant to a term of five years.

When a detainer was filed and it became evident that local

authorities were going to prosecute defendant again for the

same crime, the court on its own motion reduced the sentence

to 60 days.

** See Hincks, Fed. Prob. 3, 4 (July-Sept. 1945) ; Note, 48

Column. L. Rev. 1190, 1192 & n.18 (1948) ; Note, 1966 Wash.

U.L.Q. 417, 422. New Jersey’s Commissioner Bates explained :

“One of the essential and indispensable elements of good

parole is that a program should be arranged in advance

of release. The parole board must be assured of employ-

ment which is bona fide and suitable to the man being

l4a

This same uncertainty also often adversely affected

the prisoner’s attitude towards his own rehabilitation.

No matter how well he might behave and how zeal-

ously he might work towards his own rehabilitation,

there was no way, as long as a detainer had been

lodged and was pending against him, whereby he

could count on release within a given period.’ The

released, and also it must be satisfied that he is to have

as good a home as possible under the circumstances. If

the board does not know whether the man is to serve

more time or not, it is difficult to arrange such a program.

We have no business to annoy employers by importuning

them for a job for an inmate and then not having the

inmate show up as promised.”

Bates, Fed. Prob. 16, 17 (July-Sept. 1945). It was for this

reason that prison and parole officials were in the forefront

of the movement to reform the detainer system. See, e.g.,

Bates, supra; Bennett, Fed. Prob. 8 (July-Sept. 1945); Fed.

Prob. 20 (June 1959) (Director, Federal Bureau of Prisons) ;

Heyns, Fed. Prob. 13 (July-Sept. 1945) (Director, Michigan

Department of Corrections); Donnelly, 32 Conn. BJ. 26

(1958) (Member, Connecticut Board of Parole). The Federal

Bureau of Prisons urged as early as 1963 that the federal

government become a party to the Agreement. See Note, 18

Rutgers L. Rev. 828, 856 n.236 (1964).

*® See Hincks, Fed. Prob. 3, 4 (July-Sept. 1945); Note, 18

Rutgers L. Rev. 828, 836 & n.63 (1964); Note, 77 Yale L.J.

767, 770 & n.22 (1968). Commissioner Bates recounted one

extreme example:

“T recall the case of a man who came before the board of

parole at a prison in New York who had no less than 17

warrants pending against him, most of them for forging

small checks. Undoubtedly his philosophy had been, after

he forged the first one and placed the proceeds on the

wrong horse, that he wouldn’t get punished much more

for two checks than for one and he kept up that process

l5a

Syste:n also tended to eliminate the possibility of con-

current sentencing, even when the charges in the

various jurisdictions all stemmed out of the same

criminal episode or occurred within a short period

of time.”

Moreover, the prisoner subject to a detainer was

handicapped by delay in preparing for trial of the

charge upon which it was based. As in all cases of

trial delay, witnesses might die, evidence disappear,

and memories fade. While the state could gather its

evidence and preserve it for an eventual trial, the

prisoner, confined in another jurisdiction, was often

unable to do so, particularly if he could not afford to

until finally apprehended. When granted parole, of course,

he had to meet each of these warrants in turn and he

wasn’t as lucky as some because the first judge whom he

met was a tough one and sent him back to prison again

for two and a half to five years, but then the man had

only 16 warrants left to meet. If that’s to be his fate on

each of them, it doesn’t look as though he is ever to have

the chance of proving that he has been rehabilitated

and I doubt if he ever will be.”

Bates, Fed. Prob. 16, 16-17 (July-Sept. 1945).

19 See State v. Milner, 78 Ohio L. Abs. 285, 288, 149 N.E.2d

189, 181 (C.P. Montgomery Cty. 1958) ; Note, 18 Rutgers L.

Rev. 828, 849 (1964) ; Schindler, 35 U. Cin. L. Rev. 179, 182

(1966) ; Note, 77 Yale L.J. 767, 770 & n.26 (1968). It has

been noted that this fact may even deter prosecutors from

according defendants a speedy trial, since early prosecutions

will merely result in concurrent sentences, whereas delayed

prosecutions cannot. See Comment, 31 U. Chi. L. Rev. 535,

540-41 (1964).

l6a

rettain counsel.” Indeed, sometimes he would not even

‘be informed that charges were pending against him.”

Finally, even when all jurisdictions concerned were

otherwise willing to permit a temporary transfer to

accord the prisoner a prompt trial on pending

charges, such transfers were hampered by a lack of

a uniform set of rules as to the mechanics of such

transfers. Arrangements would have to be made for

payment of the cost of transfers, prisoner upkeep,

pursuit and recovery in the event of escape and

prompt return.* There was no guarantee to the

sending state that the receiving state would try and

20 See, e.g., Nickens v. United States, 323 F.2d 808, 813

(D.C. Cir. 1963), cert. denied, 379 U.S. 905 (1964) (Wright,

J., concurring) ; Taylor v. United States, 238 F.2d 259, 262

(D.C. Cir. 1956); United States v. Provoo, 17 F.R.D. 183,

203 (D. Md.), aff'd mem., 350 U.S. 857 (1955) ; Comment, 31

U. Chi. L. Rev. 535, 537 n.14 (1964) ; Schindler, 35 U. Cin. L.

Rev. 179, 182 (1966); Note, 18 Rutgers L. Rev. 828, 834

(1964) ; Note, 1966 Wash. U.L.Q. 417, 423-24; Note, 77 Yale

L.J. 767, 769 (1968).

21 See, e.g., Fouts v. United States, 253 F.2d 215, 218 (D.C.

Cir. 1958) ; Taylor v. United States, 238 F.2d 259, 261 (D.C.

Cir. 1956) ; Ex parte State ex rel. Attorney General, 255 Ala.

443, 52 So.2d 158, 161 (1951); Pellegrini v. Wolfe, 225 Ark.

359, 366, 283 S.W.2d 162, 165-66 (1955) (Robinson, J., dis-

_ senting) ; Schindler, 35 U. Cin. L. Rev. 179, 182 n.10 (1966) ;

18 Rutgers L. Rev. 828, 844 (1964).

22 Director Bennett noted in 1959: “While under present

procedures a prosecutor in one state can secure for trial an

offender imprisoned in another state, this requires a special

contract with the executive authority of the incarcerating

state, a method burdened with so much red tape that it is

seldom used.” Bennett, Fed. Prob. 20, 22 (June 1959). See also

Note, 18 Rutgers L. Rev. 828, 849 (1964).

17a

return the prisoner promptly—or return him at all.

Indeed, at least one state refused to participate in

such transfers because of a tendency on the part of

receiving jurisdictions not to return the borrowed

prisoners.”

It was to remedy these problems that the present

Interstate Agreement on Detainers was adopted in

1970 on behalf of the United States and the District

of Columbia by way of the Interstate Agreement on

Detainers Act.** The Agreement adopted by the Act

provided the prisoner with a method of clearing de-

tainers and charges outstanding against him and

provided prosecutors with a uniform set of rules gov-

erning temporary transfers for purposes of trial.

Under the Agreement, prison authorities must notify

a prisoner immediately of any detainers lodged

against him and must inform him of his rights under

23 See Note, 18 Rutgers L. Rev. 828, 849 & n.176 (1964).

* A brief history of the promulgation of the Interstate

Agreement on Detainers is given in Bennett, Fed. Prob. 20

(June 1959).

The Joint Committee on Detainers (later entitled the ““Com-

mittee on Detainers and Sentencing and Release of Persons

Accused of Multiple Offenses’), sponsored by the Council of

State Government, issued a statement of principles in 1948

and, in 1955 and 1956, a series of proposals. Drafts of the pro-

posals were submitted to a conference sponsored by the Coun-

cil of State Governments, the American Correctional Associa-

tion, the National Probation and Parole Association, and the

New York Joint Legislative Committee on Interstate Coopera-

tion. Two drafts were approved. The first, “Disposition of

Detainers Within the State,” was proposed as a model statute

for the resolution of detainer problems within a single

jurisdiction.

18a

the Agreement. Article III then affords him the right

to demand trial on the charges underlying the de-

tainer. In response to such a demand, the prison

authorities must offer custody of the prisoner to the

authorities that have lodged the detainer. Art. V(a).

If the latter refuse to accept custody, the indictment

on which the detainer is based must be dismissed with

prejudice. Art. V (c). If instead they accept custody,

they must try the prisoner within 180 days, unless a

continuance is granted in open court. Art. III(a).

Article IV governs requests initiated by the prose-

cutor. In part, Articles IV and V alleviated the prob-

lems that previously had plagued interjurisdictional

transfers for purposes of trial. Trial must be com-

menced within 120 days (plus continuances for good

cause granted in open court) and the prisoner re-

turned as expeditiously as possible. Arts. IV(c) and

V(e). Article V also governs the handling of ex-

penses and escape. In part the limitations imposed

by Article IV constitute necessary corollaries to those

imposed by Article III, since without the Article IV

limitations prosecutors would be able to avoid the

limitations under Article III merely by arraigning

the prisoner without any intention of granting a

prompt trial, thereby circumventing the requirements

of the Agreement.

Our interpretation of the Detainers Act should re-

flect Congress’ purpose, as revealed in the foregoing

history, which was to provide a comprehensive and

coherent solution to a multiplicity of problems that

had prior to the adoption of the Act beset prisoners,

19a

prosecutors, judges, prison authorities, and parole

boards alike under the old detainer system. Under

the Act a prisoner can force the expeditious disposi-

tion of outstanding detainers and their underlying

charges. Similarly prosecutors can more easily obtain

prisoners for trial; judges and prison and parole au-

thorities can more rationally administer punishment

and rehabilitation. Whether or not the Act should

apply to a case where the sole federal intervention

is the issuance of a habeas writ, see, e.g., United

States v. Mauro, Slip Opin. at 265 (2d Cir. Oct. 26,

1976) (Nos. 76-1251, 76-1252), the speedy trial pro-

visions must surely apply to a state prisoner like

Ford, against whom a federal detainer was lodged

for years. To hold that the proviso to Article IV(a)

precludes application of those provisions in such a

case would be to stand the Act on its head.

The Article IV(a) proviso plays a very minor role

in the Act’s general structure. One of the problems

involved in formuiating a workable transfer proce-

dure among states was to preserve states’ rights to

refuse extradition, and it is this right that the Article

IV(a) proviso embodies.” While there is some dis-

pute as to the extent of a state’s right to refuse to

comply with a federal writ of habeas corpus ad prose-

quendum,™ there is no evidence that the Article IV

** See 31 U. Chi. L. Rev. 535, 552 (1964).

2 Compare United States v. Maurv, Slip Opin. at 280 & n.1

(2d Cir. Oct. 26, 1976) (Nos. 76-1251, 76-1252) (Mansfield,

J., dissenting), and Schindler, 35 U. Cin. L. Rev. 179, 191-92

& n.46 (1966), with United States v. Mauro, supra, at 271, and

20a

(a) proviso and its adoption by Congress were in-

tended to augment or diminish that right in any way;

it rather appears that they were merely intended to

preserve prior law with respect to interstate trans-

fers.

Thus we are asked to take a hypothetical and pos-

sibly non-existent conflict between a minor provision

of the Act which relates to transfer mechanics (the

Art. IV(a) proviso) and prior federal law (28 U.S.C.

§ 2241) and to use it as the touchstone for an inter-

pretation of the rest of the Act that would vitiate its

operation insofar as it affects federal detainers, since

virtually all federal transfers are conducted pursuant

to the writ.” This, in turn, would substantially im-

pair the operation of the Agreement as a whole, since

federal detainers form a large percentage of all de-

tainers outstanding.” Given this choice, we are con-

Comment, 31 U. Chi. L. Rev. 535, 541 (1964). The Supreme

Court has reserved the issue. Carbo v. United States, 364 U.S.

611, 621 n.20 (1961). While the author of the present opinion

adheres to his position in Mauro, we need not decide the ques-

tion here.

27 The government here has so conceded.

*8 See Note, 77 Yale L.J. 767, 775 & n.73 (1968). Available

statistics are spotty but illustrative. For example, in 1963,

of 96 detainers filed in a leading Illinois prison, 52 were

filed by the federal government (54%). Comment, 31 U. Chi.

L. Rev. 535, 540 & n.80 (1964). In the first half of 1962, the

federal government was responsible for 70 out of 222 out-of-

state detainers filed in California (32%). Note, 18 Rutgers

L. Rev. 828, 857 & n.2388 (1964). The record for Michigan

Meee = te eee s cee come ome eee

— seme

2la

strained to hold that, whether or not a writ of habeas

corpus ad prosequendum constitutes a “detainer,” see

United States v. Mauro, supra, once a federal de-

tainer has been lodged against a state prisoner the

habeas writ constitutes a “written request for tempo-

rary custody” within the meaning of Article IV of

the Detainers Act.

Turning to whether the government violated the

limitations of the Act in this case, Article IV(e) pro-

vides :

“If trial is not had on any indictment, informa-

tion, 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 com-

plaint shall not be of any further force or effect,

and the court shall enter an order dismissing

the same with prejudice.”

Appellant argues that the government violated this

provision by returning him to Massachusetts custody

on June 14, 1974, prior to trial. The provision, how-

ever, which is intended to avoid the disruptions in a

prisoner’s rehabilitation occasioned by repeated trans-

fers between jurisdictions, is thus for his benefit and

is waivable. Here, appellant himself requested the

State Prison at Jackson in 1944, used as an example by

Director Heyns at the 1945 symposium, was similar: Of 109

detainers filed, 46 were filed by federal officials (42% ). Heyns,

Fed. Prob. 13, 15 n.1 (July-Sept. 1945).

22a

transfer and by doing so waived his objection to it

under Article IV (e).”

Article IV(c), however, provides in addition that:

“(Trial shall be commenced within one hundred

and twenty days of the arrival of the prisoner

in the receiving State, but for good cause shown

in open Court, the prisoner or his counsel being

present, the court having jurisdiction of the mat-

ter may grant any necessary or reasonable con-

tinuance.”

Although appellant waived his right not to be re-

turned prior to trial, he did not thereby waive his

right to a speedy trial. On the contrary, beginning

shortly after his arrest he repeatedly insisted on a

prompt trial. Almost immediately after his arrest

he sent a letter to the United States Attorney re-

questing that he be tried as expeditiously as possible.

He objected to each continuance or delay in the trial

when he was afforded an opportunity to object and

twice moved for dismissal on speedy trial grounds.

His request to be returned to Massachusetts custody

was made only after it became evident that trial

would be substantially delayed at the government’s

request.

Custody of appellant was obtained pursuant to the

writ on April 1, 1974. Appellant was not tried until

2° In this case we need not decide whether the failure of a

prisoner to express a preference as to the place of his incarcer-

ation pending trial, either through ignorance of his statutory

right or otherwise, would nevertheless constitute a waiver

of that right.

23a

September 2, 1975, more than 13 months beyond the

expiration on July 30, 1974, of the 120 days permitted

under Article IV(c). The question, therefore, is

whether the 120-day period was extended through the

granting of “necessary or reasonable” continuances,

“for good cause shown in open court, the prisoner or

his counsel being present.”

Trial was originally set for May 28, 1974, well

within the 120-day period. In response to the govern-

ment’s request for a continuance in which to attempt

to apprehend appellant’s co-defendant, however, trial

was postponed to August 21, 1974. The proceeding

took place in open court, with both the defendant and

his counsel present. The government’s reasons for

requesting the adjournment were set forth in a sealed

affidavit filed with the court. While we do not believe

that the public interest would be served by disclosure

of the contents of that affidavit, we have reviewed it

and hold that the continuance was “necessary” and

“reasonable” and was granted “for good cause.” The

later delay from November 18 to February 18, 1975,

also supported by sealed affidavit and also granted in

open court, was similarly justified.”

The remaining delays, however, cannot be so justi-

fied. When Judge Bauman resigned and the case was

transferred to Judge Motley, the tria! date was post-

% We do not believe that the requirement of Article IV (c)

that good cause be shown in open court was intended to pre-

clude proceedings by way of sealed affidavit where circum-

stances warrant, but merely to prohibit ez parte and sua

sponte continuances.

24a

poned from August 21 to November 18, 1974, with-

out explanation. Part of this delay may have been

occasioned by the transfer of the case. The larger

part, however, can only be accounted for on the as-

sumption that Judge Motley’s calendar was already

full. As we have previously stated, under such cir-

cumstances it is the responsibility of the trial judge

to reassign cases to assure defendants their right to

a speedy trial. United States v. Drummond, 511 F.

2d 1049, 1053 (2d Cir.), cert. denied, 423 U.S. 844

(1975). Similarly on February 18, 1975, the trial

date set after the goverriment’s second motion for a

continuance, the trial judge found herself in the mid-

dle of another trial and, instead of reassigning the

case to a judge able to accord the defendant a prompt

trial, postponed the trial to June 11, 1975. Subse-

quently, because of a program undertaken by the

court to dispose of civil cases, the trial judge sua

sponte set a new trial date of September 2, 1975.

None of these delays, which together total over nine

months, were “necessary,” “reasonable,” or “for good

cause” within the meaning of Article IV(c).

Not only were the delays unjustified, but two of

the three were not granted “in open court, the de-

fendant or his counsel being present.” Both the ad-

journment from August 21 to November 18, 1974,

and the adjournment from June 11 to September 2,

1975, were granted sua sponte without any type of

formal hearing. We have previously emphasized, out-

side of the context of the Detainers Act, the impor-

tance of granting the defendant an opportunity to be

25a

heard before granting an extended, criminal! trial

continuance. United States v. Didier, Slip Opin. at

73, 86 (2d Cir. Oct. 13, 1976) (No. 76-1331.) The

Detainers Act imposes similar requirements for simi-

lar reasons: unless the defendant is given an oppor-

tunity to participate, his speedy trial rights may be

whittled away in the nonadversary context of ex

parte communications between the government and

the court. We therefore hold that appellant’s rights

to a speedy trial under Article IV(c) of the Detainers

Act were violated here.

We are left with the question of whether such vio-

lations warrant reversal of the convictions below.

Article V(c) of the Detainers Act dictates the an-

swer:

“(Ijn the event that an action on the indict-

ment, information, or complaint on the basis of

which the detainer has been lodged is not brought

to trial within the period provided in article III

or article IV hereof, the appropriate court of the

jurisdiction where the indictment, information,

or complaint has been pending shall enter an

order dismissing the same with prejudice, and

any detainer based thereon shall cease to be of

any force or effect.” (Emphasis supplied).

Whatever might be our conclusion if such a provi-

sion did not exist," the language actually enacted is

31 We note in this regard that appellant alleges that the

detainer caused him to be denied certain opportunities during

the years it was pending and deprived him of the opportunity

to serve his entire federal sentence concurrently with the

26a

mandatory on this court. We therefore reverse the

conviction and remand the case for dismissal of the

indictment with prejudice.

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 fugi-

tive 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

state sentence. Such prejudice, were appellant able | to sub-

stantiate his allegations, was specifically recognized in Smith

vy. Hooey, 393 U.S. 374 (1968).

ee ae

27a

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 South-

ern 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 re-

quested 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 re-

turn to Massachusetts. Trial was set for May 28,

1974.

It may well be argued that we should not be con-

cerned 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 Detainers Act. They then turn to Arti-

cle IV(c), containing the words so well known to the

28a

law as entirely dependent on the facts, namely, “for

good cause” and “necessary or reasonable”. On such

facts as are known to them, they say that until Febru-

ary 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 per-

son—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 on June 1i, 1975 “instead of re-

assigning the case to a judge able to accord the de-

fendant a prompt trial”. This statement assumes

Judge Motley’s power to do so and assumes that,

after canvassing the other twenty-five judges a cal-

endar-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 Feb-

ruary 18, 1975 were reasonable and necessary, there

are no facts upon which to base a contrary assump-

tion 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

(1972). Not being willing to thwart the jury’s de-

termination of guilt by post-conviction calendar tech-

nicalities, particularly where no showing of prejudice

29a

therefrom has been made, I would affirm the convic-

tions, or at most remand for a factual determination

of the essentials of “good cause” and “necessary or

reasonable”.

30a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

third day of February one thousand nine hundred

and seventy-seven.

Present: HON. LEONARD P. MOORE

HON. WALTER R. MANSFIELD

HON. THOMAS J. MESKILL

Circuit Judges

76-1319

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES PATRICK FLYNN, DEFENDANT

RICHARD THOMPSON ForD, a/k/a VINCENT A.

THOMAS, a/k/a JOHN A. AUGUST, DEFENDANT-

APPELLANT

Appeal from the United States District Court

for the Southern District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

the Southern District of New York, and was argued

by counsel.

3la

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court be and it hereby is re-

versed and that the action be and it hereby is re-

manded to said District Court for further proceed-

ings in accordance with the opinion of this court.

A. DANIEL FUSARO

Clerk

Vincent A. Carlin

Chief Deputy Clerk

32a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the ninth day of May, one thousand nine hundred

and seventy-seven.

Present: HON. LEONARD P. MOORE

HON. WALTER R. MANSFIELD

HON. THOMAS J. MESKILL

Circuit Judges

76-1319

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES PATRICK FLYNN, DEFENDANT

RICHARD THOMPSON ForD. a/k/a VINCENT A.

THOMAS, a/k/a JOHN A. AUGUST, DEFENDANT-

APPELLANT

A petition for a rehearing having been filed herein

by counsel for the appellee, United States of America,

33a

Upon consideration thereof, it is

Ordered that said petition be and hereby is DE-

NIED.

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

34a

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the ninth day of May, one thousand nine hundred

and seventy-seven.

76-1319

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES PATRICK FLYNN, DEFENDANT

RICHARD THOMAS FORD, a/k/a VINCENT A.

THOMAS a/k/a JOHN A. AUGUST, DEFENDANT-

APPELLANTS

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the appellee, United States of

America, and no active judge or judge who was a

member of the panel having requested that a vote be

taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DE-

NIED.

/s/ Irving R. Kaufman

IRVING R. KAUFMAN

Chief Judge

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