Petition — Kenaan v. United States

Supreme Court, U. S.

| ws 5 ST

1 "'

MICHAEL RODAK, JR., CLERK

In the 7

Supreme Court of the United States.

Ocroszr TERM, 1977.

No. . 27-2064

ELIAS KENAAN,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

MARTIN G. WEINBERG,

JuprrH H. Mizner,

Oren! & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Question presented

Statutory provisions involved

Statement of the case

onrwnwnownd wn Ob

Reasons for granting the writ

I. The decision below is in conflict with the

rulings of other United States Courts of

Appeals 9

II. The remedial provisions of the Interstate

Agreement on Detainers Act apply to the

transfer of a state prisoner to federal custody

for purposes of trial even if the transfer is

technically effectuated by means of a writ of

habeas corpus ad prosequendum 11

Conclusion 15

Appendix follows page 15

Opinion of United States District Court, District

of Massachusetts la

Opinion of United States Court of Appeals for

the First Circuit 6a

Judgment of Court of Appeals 16a

Order of Court of Appeals granting stay of

mandate 17a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASES.

Marsino v. Higgins, 10 F. 2d 534 (D. Mass. 1924),

aff'd per curiam, 270 U.S. 627 (1926) 14n

Preiser v. Rodriguez, 411 U.S. 475 (1973) 13

Smith v. Hooey, 393 U.S. 374 (1969) 14n

Speed v. United States, No. 76-1126 (8th Cir.) 1]

Tcherepnin v. Knight, 389 U.S. 332 (1967) 13

United States v. Adkins, No. 76-3523 (9th Cir.) ll

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

1976), pet. for cert. pending, No. 76-1596 10, 13

United States v. Ricketson, 498 F. 2d 367 (7th Cir.

1974), cert. den. 419 U.S. 965 (1974) 10

United States v. Roberts, 548 F. 2d 665 (6th Cir.

1977) 10, 13

United States v. Scallion, 548 F. 2d 1168 (5th Cir.

1977), pet. for cert. pending, No. 76-6559 10

United States v. Sorrell, 3d Cir., No. 76-1647,

decided November 29, 1976, vacated January 27,

1977, argued May 12, 1977 10, 11

United States ex rel. Esola v. Groomes, 520 F. 2d

830 (3d Cir. 1976) 10, 13, 14n

STATUTES.

United States Code, Title 26

§ 7201

§ 7206(1)

|

TABLE OF AUTHORITIES CITED. iii

United States Code, Title 28

§ 1254(1) - 2

§ 2241 6

§ 2241(c)(5) 13, 14

Interstate Agreement on Detainers Act, 84 Stat.

1397, 18 U.S.C. App., p. 4475 2, 8, 9, 11, 12, 13, et seq.

Article I 12

Article IV(e) 8, 10, 11

Article IX 12

Pub. L. No. 91-538, §§ 1-8 (December 9, 1970) 7n

Mass. G.L. c. 276 App., p. 261 (West, 1972) 7n

Mass. Acts of 1966, c. 892 7n

MISCELLANEOUS.

Bureau of Prisons Policy Statement No. 7500.14A(1) 14n

Federal Rules of Criminal Procedure, Rule 11(e) 7

Sutherland, Statutory Construction, 4th Ed., Text

and Commentary, vol. 2A, § 51.05 13

In the

Supreme Court of the United States.

Octoser Term, 1977.

No.

ELIAS KENAAN,

PETITIONER,

oO.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit.

Elias Kenaan petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the

First Circuit entered in this case on July 7, 1977.

2

Opinions Below.

The opinion of the court of appeals, not yet reported, is

reprinted in the Appendix, infra, at p. 6a. The opinion of

the United States District Court for the District of Massa-

chusetts (Caffrey, C.J.) is reported at 422 F. Supp. 226, and

reprinted in the Appendix, infra, at p. la.

Jurisdiction.

The judgment of the court of appeals was entered on

July 7, 1977, and is reprinted in the Appendix, infra, at

p. 16a. The court’s jurisdiction to review the judgment of

the court of appeals is invoked under 28 U.S.C. § 1254(1).

Question Presented.

Whether the remedial provisions of the Interstate Agree-

ment on Detainers Act must be applied to the transfer of a

state prisoner to federal custody for purposes of trial when

the transfer is effectuated by means of a writ of habeas

corpus ad prosequendum?

Statutory Provisions Involved.

Section 2 of the Interstate Agreement on Detainers Act,

84 Stat. 1397, 18 U.S.C. App., p. 4475, provides in

pertinent part:

3

INTERSTATE AGREEMENT ON DETAINERS.

Sec. 2. The Interstate Agreement on Detainers is

hereby enacted into law and entered into by the United

States on its own behalf and on behalf of the District of

Columbia with all jurisdictions legally joining in sub-

stantially the following form:

“The contracting States solemnly agree that:

“Article I

“The party States find that charges outstanding

against a prisoner, detainers based on untried indict-

ments, informations, or complaints and difficulties in

securing speedy trial of persons already incarcerated

in other jurisdictions, produce uncertainties which

obstruct programs of prisoner treatment and rehabilita-

tion. Accordingly, it is the policy of the party States

and the purpose of this agreement to encourage the

expeditious and orderly disposition of such charges and

determination of the proper status of any and all

detainers based on untried indictments, informations,

or complaints. The party States also find that proceed-

ings with reference to such charges and detainers,

when emanating from another jurisdiction, cannot

properly be had in the absence of cooperative pro-

cedures. It is the further purpose of this agreement to

provide such cooperative procedures.

4

“Article II

“As used in this agreement:

“(a) ‘State’ shall mean a State of the United States;

the United States of America; a territory or possession

of the United States; the District of Columbia; the

Commonwealth of Puerto Rico.

“(b) “Sending State’ shall mean a State in which a

prisoner is incarcerated at the time that he initiates a

request for final disposition pursuant to article III

hereof or at the time that a request for custody or

availability is initiated pursuant to article IV hereof.

“(c) “Receiving State’ shall mean the State in which

trial is to be had on an indictment, information, or

complaint pursuant to article III or article IV hereof.

“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 avail-

able in accordance with article V(a) hereof upon

presentation of a written request for temporary custody

or availability to the appropriate authorities of the

State in which the prisoner is incarcerated; Provided,

That the court having jurisdiction of such indictment,

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 appropriate authorities before the

5

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

motion or upon motion of the prisoner.

“(e) 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 im-

prisonment pursuant to article V(e) hereof, such indict-

ment, information, or complaint shall not be of any

further force or effect, and the court shall enter an

order dismissing the same with prejudice.

“Article VIII

“This agreement shall enter into full force and effect

as to a party State when such State has enacted the

same into law. A State party to this agreement may

withdraw herefrom by enacting a statute repealing the

same. However, the withdrawal of any State shall not

affect the status of any proceedings already initiated

by inmates or by State officers at the time such with-

drawal takes effect, nor shall it affect their rights in

respect thereof.

“Article IX

“This agreement shall be liberally construed so as to

effectuate its purposes. The provisions of this agree-

ment shall be severable and if any phrase, clause,

sentence, or provision of this agreement is declared to

6

be contrary to the constitution of any party State or of

the United States or the applicability thereof to any

government, agency, person, or circumstance is held

invalid, the validity of the remainder of this agreement

and the applicability thereof to any government,

agency, person, or circumstance shall not be affected

thereby. If this agreement shall be held contrary to

the constitution of any State party hereto, the agree-

ment shall remain in full force and effect as to the

remaining States and in full force and effect as to the

State affected as to all severable matters.”

Title 28, United States Code, § 2241, provides in

pertinent part:

§ 2241. Power to grant writ

(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 juris-

dictions. The order of a circuit judge shall be entered

in the records of the district court of the district where-

in the restraint complained of is had.

(c) 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.

7

Statement of the Case.

The facts of this case are not in dispute. On April 13,

1976, a federal grand jury sitting in the District of Massa-

chusetts returned an indictment against the petitioner, Elias

Kenaan, charging him with six counts of income tax

evasion, in violation of 26 U.S.C. §§ 7201 and 7206(1). At

that time he was incarcerated in the Lawrence House of

Correction, Lawrence, Massachusetts, serving a sentence

imposed by the Commonwealth of Massachusetts. On

April 30, 1976, Kenaan was transferred pursuant to a

federally issued writ of habeas corpus ad prosequendum

from the Lawrence House of Correction to the United States

District Court in Boston, Massachusetts, for purposes of

arraignment. He was returned to the Lawrence House of

Correctiun and the custody of the Commonwealth of

Massachusetts that same day. A second writ of habeas

corpus ad prosequendum was issued on June 25, 1976, and

on June 28, 1976, petitioner was again transferred from the

Lawrence House of Correction to the United States District

Court in Boston, where he offered a guilty plea pursuant to

Rule ll(e) of the Federal Rules of Criminal Procedure.

The court declined to accept his plea and he was again

returned to the Lawrence House of Correction and the

custody of the Commonwealth of Massachusetts.

Petitioner filed a motion to dismiss the indictment on

August 16, 1976, alleging that since both the Common-

wealth of Massachusetts and the United States were parties

to the Interstate Agreement on Detainers (“Agreement”) '

'The United States joined the Agreement by Act of December 9, 1970,

Pub. L. No. 91-538, §§ 1-8, 84 Stat. 1397, 18 U.S.C. App., p. 4475.

The Commonwealth of Massachusetts joined thg#Agreement by Act of

January 7, 1966, c. 892, Mass. Acts, reprinted in Mass. G.L. c. 276

App., p. 261 (West, 1972).

8

the actions of the United States in obtaining his custody

from the Commonwealth of Massachusetts, and returning

him to his original place of imprisonment prior to the

completion of the federal proceedings against him, violated

Article IV(e) of the Agreement even though the transfers

were technically effectuated by means of writs of habeas

corpus ad prosequendum.

Rejecting the government’s arguments that the United

States participated in the Agreement only as a “sending

state” and that the provisions of the Agreement were

inapplicable when a writ of habeas corpus and not the

formal statutory mechanism was utilized to obtain custody

of a state prisoner, the district court (Caffrey, C.J.) granted

Kenaan’s motion, holding that “(t]he United States partici-

pates [in the Agreement] as both a sending and receiving

state” and that “(t]he IAD is the exclusive method of

transfer. While the writ of habeas corpus may still issue

to effect a transfer of a state prisoner for the purposes of

trial on a federal indictment, the IAD limits the use of such

writ to one transfer.” A. 4a.

The government appealed to the United States Court of

Appeals for the First Circuit, arguing that the district court

erred both in applying the Agreement to the United States

as a “receiving state” and in holding that a writ of habeas

corpus ad prosequendum should be treated as a detainer

under the Agreement. On July 7, 1977, the court of

appeals reversed the district court’s order of dismissal and

remanded the case to the district court, holding that the

Interstate Agreement on Detainers Act was not the exclusive

means by which the United States could obtain custody of a

state prisoner for federal prosecution and that transfers

9

pursuant to writs of habeas corpus ad prosequendum were

not subject to the provisions of the Agreement.*

On July 19, 1977, the court of appeals granted petition-

er’s motion for a stay of mandate pending the timely filing

of this petition. The court’s order is reprinted in the

Appendix at p. 17a, infra.

Reasons for Granting the Writ.

This is a case ideally suited for review by this Court.

The facts are undisputed. It raises pure questions of statu-

tory interpretation concerning the scope of the Interstate

Agreement on Detainers Act and its applicabil'ty where the

federal government has utilized a writ of habeas corpus ad

prosequendum to obtain the custody of a state prisoner for

purposes of a pending federal prosecution. Because the

decision below substantially undercuts the statutory protec-

tions afforded to state prisoners transferred to federal

custody for criminal prosecution, and is in conflict with the

rulings of other circuits, it should be reviewed by this

Court.

I. THe Decision BELow 1s IN CONFLICT WITH THE RULINGS

oF OTHER UNrTEeD STATES Courts OF APPEALS.

The interrelationship of the Interstate Agreement on

Detainers Act and the writ of habeas corpus ad prose-

*The court found it unnecessary to decide whether the United States

participated in the Agreement as both a sending and receiving state, but

noted that “[w]ere we required to decide the question, we would, on

this record, conclude that the United States participates as both a

sending and a receiving State.” A. 10a n. 6.

|

10

quendum has been the subject of much recent litigation

throughout the federal judiciary. The decisions of various

courts of appeals have resulted in a conflict in the circuits

concerning the issue presented by this petition as well as

related subsidiary questions. The Second Circuit has held

that, to effectuate the Agreement, a federally issued writ of

habeas corpus ad prosequendum must be treated as a

detainer, mandating compliance with the provisions of

Article IV of the Agreement. United States v. Mauro, 544

F. 2d 588, 592 (1976), petition for a writ of certiorari

pending, No. 76-1596. The Sixth Circuit has concluded

that such a writ constitutes both a detainer and a written

request for temporary custody under the Agreement.

United States v. Roberts, 548 F. 2d 665, 670 (1977).° The

Fifth Circuit and the court of appeals below have held the

Agreement inapplicable when a writ of habeas corpus is the

transfer mechanism utilized by the federal government to

bring a state prisoner to trial. United States v. Scallion,

548 F. 2d 1168, 1173 (1977), petition for a writ of certiorari

pending, No. 76-6559. The Seventh Circuit has also held

that a writ of habeas corpus is not a detainer. United

States.v. Ricketson, 498 F. 2d 367, 373 (1974), cert. den.

419 U.S. 965 (1974). The Third Circuit has held that the

protections of the Agreement must be applied where a

federal prisoner is transferred to state custody and brought

to trial by means of a state-issued writ of habeas corpus ad

prosequendum (United States ex rel. Esola v. Groomes, 520

F. 2d 830 (1976)) and the effect of the utilization of such a

writ by federal authorities is currently pending before the

full court. United States v. Sorrell, 3d Cir., No. 76-1647,

*The Sixth Circuit did not discuss the rationale behind its conclusion

since its decision was predicated on the appellant’s pre-trial detainee

status.

ll

decided November 29, 1976, vacated January 27, 1977,

argued en banc May 12, 1977. The issue is also currently

pending in both the Eighth and the Ninth Circuits. Speed

v. United States, No. 76-1126 (8th Cir.);* United States v.

Adkins, No. 76-3523 (9th Cir.).

The applicability of the protections of the Interstate

Agreement on Detainers Act to state prisoners transferred to

federal custody for prosecution pursuant to writs of habeas

corpus ad prosequendum is an issue of importance to both

the prisoner and the prosecuter. The sanction imposed by

Article [V(e) of the Agreement is severe — dismissal of the

indictment with prejudice. A definitive interpretation by

this Court is necessary to resolve the conflict in the circuits

and ensure the equitable, consistent and uniform admini-

stration of justice throughout the federal judicial system.

Il. THe REMEDIAL PROVISIONS OF THE INTERSTATE AGREE-

MENT ON DeETAINERS ACT APPLY TO THE TRANSFER OF A

STATE PRISONER TO FEDERAL CusTODY FOR PURPOSES OF

TRIAL EVEN IF THE TRANSFER IS TECHNICALLY EFFECTUATED

py MEANS oF A Writ oF Haseas Corpus AD PROSE-

QUENDUM.

In reversing the order of the district court, the court of

appeals concluded that application of the Agreement where

a writ of habeas corpus ad prosequendum is utilized as the

technical means of effectuating the transfer of a state

prisoner to federal custody to dispose of pending federal

charges would not promote the purposes of the legislation

‘In both Speed and Sorrell, detainers had been placed on state

prisoners. Thus the question before the courts is whether the writ of

habeas corpus constitutes a request under the Agreement.

12

and would impliedly repeal the habeas corpus statute

without any express Congressional intent to do so. Peti-

tioner submits that both prongs of this analysis are

erroneous and this Court should, therefore, grant certiorari

and reverse the judgment below.

The Interstate Agreement on Detainers Act is a remedial

measure designed to benefit the incarcerated individual

facing criminal prosecution in another jurisdiction by

relieving the uncertainty produced by “charges outstanding

against a prisoner, detainers based on untried indictments,

informations, or complaints and difficulties in securing

speedy trial . . . which obstruct programs of prisoner treat-

ment and rehabilitation.” 18 U.S.C. App., Article I.

These negative effects accrue not only from the actual

transfer of the prisoner, but also from the psychological

strain resulting from uncertainty about a future sentence —

a state of mind that can arise from knowledge of an out-

standing charge even if no formal detainer has been filed.

A prisoner who learns of an outstanding charge when he is

transferred by means of a writ of habeas corpus ad pro-

sequendum, and is then returned to the sending jurisdiction

without disposition of the pending charge, possesses the

same uncertain state of mind as a prisoner who has learned

that a detainer has been filed against him. Both processes

serve to put the prisoner on notice as to the pending charge.

Under such circumstances the writ is the functional equiva-

lent of the detainer and must be construed as one.

Moreover, well established rules of statutory construction,

as weil as Article IX of the Agreement itself,* mandate that

it be liberally construed in favor of the prisoner-defendant,

its intended beneficiary. As this Court has stated, it is a

‘Article IX specifically provides that “[t]his agreement shall be

liberally construed so as to effectuate its purposes.”

13

“familiar canon of statutory construction that remedial

legislation should be construed broadly to effectuate its

purposes.” Tcherepnin v. Knight, 389 U.S. 332, 336

(1967). Such a construction requires a rule that, when

available, the Interstate Agreement on Detainers Act is the

exclusive method of transfer and a writ of habeas corpus ad

prosequendum constitutes both a detainer and a request

under the Agreement. United States v. Mauro, supra;

United States v. Roberts, supra; United States ex rel. Esola

v. Groomes, supra.

Nor does requiring that a writ of habeas corpus ad pro-

sequendum be deemed both a detainer and a request under

the Agreement impliedly repeal a portion of the habeas

corpus statute (§ 2241(c)(5)). Rather, it is consistent with

and does no violence to the appropriate use of the writ. It

is a well recognized rule of statutory construction that

“(where one statute deals with a subject in general terms,

and another deals with a part of the same subject in a more

detailed way, the two should be harmonized if possible; but

if there is any conflict, the latter will prevail.” Sutherland,

Statutory Construction, 4th Ed., Text and Commentary,

vol. 2A, § 51.05, p. 315. See also, Preiser v. Rodriguez,

411 U.S. 475, 489-490 (1973). 28 U.S.C. § 2241(c)(5) deals

with the subject of the production of a state prisoner in

federal court in general terms. The Interstate Agreement

on Detainers Act deals with a part of the same subject —

the production of a state prisoner in federal court for

purposes of facing pending charges. In addition to being

more detailed, it provides protections unavailable to a

prisoner under the general habeas corpus statute. The two

can be harmonized. Where the Agreement is available, its

protections must be afforded; therefore, in those instances

the writ constitutes a detainer and a request for production.

14

Where the Agreement is not available® § 2241(c)(5) remains

the appropriate method for the federal government to bring

a state prisoner to trial.

To hold, as did the court of appeals below, that the use

of a writ of habeas corpus ad prosequendum to obtain the

custody of a state prisoner for federal prosecution removes

the transfer from the ambit of the Agreement is, in effect,

to render the Agreement meaningless and little more than

an exercise in legislative futility. The government can

circumvent its protective requirements at will by the simple

expedient of utilizing the writ rather than filing a formal

detainer. Moreover, under the theory of the court of

appeals the District of Columbia and the forty-six states

which are also parties to the Agreement could similarly

evade its proscriptions and abrogate its protections by

utilizing state-issued writs of habeas corpus ad prosequen-

dum to obtain the custody of a federal prisoner for trial.’

The express purpose of the Interstate Agreement on

Detainers Act is to relieve incarcerated individuals of the

debilitating effects that flow from uncertainty as to the

course of pending prosecutions in other jurisdictions. By

permitting circumvention of this legislative objective at will,

the First Circuit has only created additional uncertainty.

*When Congress adopted the Agreement in 1970, only twenty-five

states were parties to it. Presently only four are not.

"As this Court has noted, a state can obtain custody of a federal

prisoner for prosecution on a pending state charge by issuing a writ of

habeas corpus ad prosequendum. “Almost invariably, the United States

has complied with such writs and extended its cooperation to the state

authorities.” Smith v. Hooey, 393 U.S. 374, 381 n. 13 (1969). See

also, Bureau of Prisons Policy Statement No. 7500.14A (1), cited in

United States ex rel. Esola v. Groomes, 520 F. 2d 830, 836 n. 19 (3d

Cir. 1975); Marsino v. Higgins, 10 F. 2d 534 (D. Mass. 1924), affd per

curiam, 270 U.S. 627 (1926).

15

This Court should, therefore, grant certiorari and reverse

the judgment below.

Conclusion.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

MARTIN G. WEINBERG,

JUDITH H. MIZNER,

OTERI & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

—— in ——

16

la

Appendix.

United States District Court,

District of Massachusetts.

No. 76-157-C.

UNITED STATES

v.

ELIAS KENAAN.

October 28, 1976.

Jeremiah T. O'Sullivan, Special Atty., U. S. Dept of

Justice, Boston, Mass., for plaintiff.

Martin G. Weinberg, Boston, Mass., for defendant.

Opinion.

Caffrey, Chief Judge.

This matter came before the Court on the basis of

defendant’s motion to dismiss the indictment. The matter

was briefed and argued by counsel. The undisputed facts

are that the defendant was serving a state sentence in the

Lawrence House of Correction on April 13, 1976, when a

federal grand jury returned an indictment charging him

with six counts of income tax evasion. He was twice

transferred from the House of Correction to this court

2a

pursuant to Writs of Habeas Corpus Ad Prosequendum. 28

U.S.C. § 2241. The first transfer was for bail and ar-

raignment purposes on April 30, 1976. The second, on

June 28, 1976, was for the purpose of offering a Rule 11(e)

guilty plea, which plea the Court declined to accept. On

both occasions he was returned to the Lawrence House of

Correction, where he remains today.

The defendant’s motion to dismiss is based on the Inter-

state Agreement on Detainers (IAD), 18 U.S.C. App. (Supp.

1975). Essentially, this is an interstate compact, adopted

by some 46 states and the United States. It is intended to

facilitate the orderly disposition of untried indictments in

jurisdictions other than the one in which the prisoner is

held. Under the agreement, once a detainer is filed in the

state of incarceration, either the prisoner or the indicting

state (receiving state) may demand a transfer of the prisoner

to the indicting jurisdiction for the purpose of trial. The

agreement provides that once a transfer is so made trial

must commence within 180 days in the case of a prisoner's

demand or 120 days in the case of the indicting state's

demand. Article IV(e) of the agreement provides:

“If trial is not had on any indictment, information, or

complaint contemplated hereby prior to the prisoner's

being returned to the original place of imprisonment

pursuant to Article V(e), hereof, such indictment,

information, or complaint shall not be of any further

force or effect, and the court shall enter an order

dismissing the same with prejudice.”

The IAD was enacted into law by Congress on De-

cember 9, 1970. “State,” under the agreement, includes

the United States of America and its participation is in

every way identical to that of the individual states, the

District of Columbia, and the Commonwealth of Puerto

Rico.

3a

The following questions are before the Court:

(1) whether the IAD is the exclusive method of transfer;

and (2) whether the participation of the United States in the

IAD is as the sending state only or as both sending state and

receiving state.

The Government’s position is that the IAD is not the

exclusive means of transfer, that the writ of habeas corpus is

an additional means of transfer. The Government also

contends that the United States is limited, under the agree-

ment, to the role of a sending state only.

The legislative history of the Act indicates that Congress

was attempting to afford to federal prisoners the rights of a

speedy trial and an uninterrupted program of rehabilitation.

The legislative history does not indicate that the Congress

was attempting to afford those same rights to state prisoners

awaiting trial on federal charges. However, the Act as

enacted by Congress does not limit the participation of the

United States to that of a sending state only. The Govern-

ment points out that the Committee Report on the 1975

Criminal Justice Reform Act (S-1) suggests that the United

States amend the IAD so that its participation would be

limited to that of a sending state. As yet this proposed

amendment has not been enacted into law.

The only cases which thus far have been decided re-

garding the IAD have held that the Courts are bound by

the statute as written and not by the construction offered by

the Government. In United States v. Sorrell, 413 F. Supp.

138 (E.D. Pa. 1976), Chief Judge Lord found, on facts

identical to those of the instant case, that the language of

Article IV(e) controls and that the fact that the IAD is the

exclusive means of effecting transfer. He further found that

the federal court is in the same geographical state as the

incarcerating state is irrelevant, and that under the

agreement one transfer is all that is allowed.

4a

In United States v. Mauro, 414 F. Supp. 358 (E.D. N.Y.

1976), Judge Bartels held that the United States is a re-

ceiving state as well as a sending state. He suggested that

an amendment to the agreement be enacted allowing

prisoners to be transferred for the purposes of trial, but felt

himself bound, as did Judge Lord, by the agreement as

enacted. See also, United States ex rel. Esola v. Groomes,

520 F. 2d 830 (3 Cir. 1975). On October 26, 1976, the

Court of Appeals for the Second Circuit handed down an

opinion affirming the rulings made by Judge Bartels in

United States v. Mauro, supra. See United States v.

Mauro, 544 F. 2d 588, 1976.

Accordingly, I rule that

1. The IAD is the exclusive method of transfer. While

the writ of habeas corpus may still issue to effect a transfer

of a state prisoner for the purposes of trial on a federal

indictment, the IAD limits the use of such writ to one

transfer.

2. The participation of the United States in the IAD is

not limited to that of a sending state only. The United

States participates as both a sending and receiving state

under the express wording of the agreement and under the

cases construing that agreement. While the legislative

history of the Act indicates that Congress was attempting to

alleviate the problems of federal prisoners, there is nothing

in the Act itself nor in the legislative history to indicate that

Congress intended these rights to apply to federal prisoners

exclusively and not to state prisoners.

3. Since the defendant was transferred from the Lawrence

House of Correction twice without being tried on the

indictment, the indictment must, under Article [V(e), be

dismissed with prejudice. In so deciding, this Court is

ruling in accord with the decisions of the only Circuit and

District Courts which have previously passed on this issue.

5a

While the Government’s argument that such a result was

not foreseen by Congress is not without some appeal, it is

more appropriately directed toward the Congress than

toward this Court.

ORDER accordingly.

6a

United States Court of Appeals

for the First Circuit

No. 77-1014

UNITED STATES OF AMERICA,

AvrELLANT,

v.

ELIAS KENAAN,

DEFENDANT, APPELLEE.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Anprew A. Carernty, U.S. District Judge]

Before Corvin, Chief Judge,

Campseu, Circuit Judge, and

Markey,” Chief Judge.

Jeremiah T. O'Sullivan, Special Attorney, Department of Justice, with

whom James N. Gabricl, United States Attorney, and Gerald E. McDowell,

Special Attorney, Department of Justice, were on brief, for appellant.

James W. Lawson, with whom Martin G. Weinberg, Judith H. Mizner, and

Oteri § Weinberg were on brief, for appelice.

July 7, 1977

Markey, Chief Judge.

This is an appeal by the United States from an order of

the United States District Court for the District of Massa-

chusetts granting appellee’s (Kenaan’s) motion to dismiss

an indictment on the ground that the Government had vio-

lated Article IV(e) of the Interstate Agreement on De-

tainers Act (‘‘Agreement’’)' by transferring Kenaan from

*Of the Court of Customs and Patent Appeals, sitting by designation.

1 Pub. L. No. 91-538, §§ 1-8, 84 Stat. 1397 (1970), reprinted in 18 U.8.C.A.

App. at 207 (West Supp. 1976); Act of Jan. 7, 1966, ch. 892, Mass. Acts,

reprinted in MASS ANN. LAWS. special, at 603, (Michie/Law. Co-op 1967).

7a

2 U.S. V. KENAAN

state to federal custody pursuant to a writ of habeas corpus

ad prosequendum and then not trying him before returning

him to state control.2, We reverse and remand.

Facts

On April 13, 1976, Kenaan was indicted by a grand jury

of the District of Massachusetts for violations of the Inter-

nal Revenue Code.* At that time he was serving a sentence

at the Lawrence House of Correction in Massachusetts for

violation of that state’s narcotics laws. On April 30, 1976,

Kenaan was transferred to the United States District Court

pursuant to a writ of habeas corpus ad prosequendum* is-

sued by that court for the purpose of arraignment. Kenaan

was arraigned and returned immediately thereafter to state

custody. On June 28, 1976, Kenaan was again transferred

to the same District Court pursuant to a second writ of

habeas corpus ad prosequendum, this time to offer a guilty

plea to the indictment. He was returned to state custody

when the court declined to accept his guilty plea.

On August 16, 1976, Kenaan filed a motion to dismiss

the indictment with prejudice, basing his motion on Article

IV(e) of the Agreement. The motion was granted on Oc-

tober 28, 1976. Notice of this appeal was filed by the Gov-

ernment on November 22, 1976.

2 The opinion is reported at 422 F. Supp. 226.

3 The indictment charged Kenaan with wilfully evading the payment of in-

come taxes and filing knowingly false ineome tax returns for the calendar

years 1969, 1970 «nd 1971 in violation of 26 U.S.C. §§ 7201 and 7206(1).

428 U.S.C. § 2241 states in pertinent part:

§ 2241. Power to grant writ

(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. The order of a cireuit judge shall be entered

in the records of the district court of the district wherein the restraint

complained of is had.

(ce) 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.

8a

OPINION OF THE COURT 3

Background

The Interstate Agreement on Detainers Act was enacted

in 1970 by Congress on behalf of the United States and is

now in force in 46 states. Article I of the Agreement briefly

sets forth the problems it sought to solve and the policies

it encouraged :

Article I

The party States find that charges outstanding

against a prisoner, detainers based on untried indict-

ments, informations, or complaints and difficulties in

securing speedy trial of persons already incarcerated

in other jurisdictions, produce uncertainties which ob-

struct programs of prisoner treatment and rehabilita-

tion. Accordingly, it is the policy of the party States

and the purpose of this agreement to encourage the

expeditious and orderly disposition of such charges

and determination of the proper status of any and all

detainers based on untried indictments, informations,

or complaints. The party States also find that proceed-

ings with reference to such charges and detainers, when

emanating from another jurisdiction, cannot properly

be had in the absence of cooperative procedures. It is

the further purpose of this agreement to provide such

cooperntive procedures.

Article II(a) defines a ‘‘State’’ for purposes of the Act

as including the United States of America. Pertinent por-

tions of Article IV provide for transfer of prisoners at the

request of the jurisdiction in which an action is pending

and for dismissal of the pending charges if the prisoner

is not tried prior to his return to the original place of im-

prisoninent :

9a

U.S. V. KENAAN

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 avail-

able in accordance with article V(a) hereof upon pre-

sentation of a written request for temporary custody

or availubility to the appropriate authorities of the

State in which the prisoner is incarcerated: Provided,

That the court having jurisdiction of such indictment,

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 appropriate authorities before the

request be honored, within which period the Governor

of the sending State may disapprove the request for

temporary custody or availability, either upon his own

motion or upon motion of the prisoner.

(ec) 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 im-

prisonment pursuant to article V(e) hereof, such in-

dictment, information, or complaint shall net be of

any further force or effect, and the court shall enter

an order dismissing the same with prejudice. [Empha-

sis added].

Tssue

The sole issue is whether the District Court erred in ap-

plying the provisions of the Agreement to the Govern-

ment’s action in using the writs of habeas corpus ad pro-

10a

OPINION OF THE COURT 5

sequendum,° thus treating, in effect, the Agreement as the

exclusive means by which the United States may obtain

custody of a state prisoner in disposing of pending federal

charges.°

OPINION

Although the District Court relied on recent decisions in

the Second and Third Circuits, holding the Agreement to be

the exclusive means of prisoner transfer for prosecution,’

5 The circumstances here resemble those in United States v. Mauro, 544 F.

2d 588 (2d Cir. 1976) and United States v. Scallion, No. 74-4246 (5th Cir.

Mar. 18, 1977) in that no separate detainer was lodged. Contra, United States

v. Cyphers, Nos. 76-1131, 76-1160 (2d Cir. Feb. 8, 1977), United States v.

Ford, No. 76.1319 (20 Cir. Feb. 3, 1977), and United States v. Sorrell, 413 F.

Supp. 138 CBs. 1976).

6 The Government raises the issue of whether Congress intended the United

States to participate in the Agreement as a ‘‘sending state’’ but not as a

‘*receiving state.’’ In our view of the case, it is unnecessary to decide the

question posed, no detviner having been lodged. We find, however, no expres-

sion of such intent in the statute. On the contrary, Article II(a) defines a

State as ‘‘a State of the United States; the United States of America; * * *

Puerto Rico.’’ Articles II(b) and (¢) define sending and receiving State with-

out distinguishing the United States. Were we required to decide the question,

we would, on this record, conelude that the United States participates as both

a sending and a receiving State and that when it lodges a detainer, as it did

in Cyphers, Ford aud Sorrell, supra note 5, the United States must comply with

the Agreement. We would note, in passing, the absence of stated reasons in

support of the Government's effort to deny itself the option of proceeding

under the Agreement.

7 See, e.g., Uniled States v. Sorrell, supra note 5, United States v. Mauro,

supra note 5, aff’g 414 F. Supp. 358 (E.D.N.Y. 1976), and U.S. ez rel. Esola v.

Groomes, 520 F. 2d 830 (3d Cir. 1975). We note that the latter case does not

involve transfer from state to federal custody, hut the reverse situation which

is similar to that in Smith v. Hooey, 393 U.S. 374 (1969) and in Dickey v.

Florida, 398 U.S. 30 (1970), the only cases cited in the House or Senate

Judiciary Committce Reports on the Agreement bill. See H.R. REP. NO. 91-

1018, 91st Cony., 2d Sess. 2 (1970); S.REP. NO. 91-1356, 91st Cong., 2d

Sess. 2 (1970), reprinted in [1970] U.S. CODE CONG. & AD. NEWS, 4864.

Both deal with the primary purpose of Article IV, i.e., the elimination of

abuses of detaincrs by states. Neither Smith nor Dickey mentions any prob-

lems associated with the use of writs of habeas corpus ad prosequendum by

federal prosecutors. See United States v. Scalhon, supra note 5, slip op. at

nn, 5 & 6. The Sixth Cireuit has recently concluded that the issuance of a writ

of habeas corpus ad prosequendum satisfies both requirements of Article IV(a)

of the Agreement, i.e., that a detainer be lodged and that a written request for

temporary custody be made. United States v. Roberts, 548 F. 24 665, 670 (6th

Cir. 1977). However, that court did not discuss the impact of that view on the

lla

6 U.S. V. KENAAN

we decline to follow those precedents. Our view of the

relationship between the Agreement and the writ of habeas

corpus ad prosequendum more closely accords with that

expressed by the Fifth Circuit in United States v. Scallion,

supra note 5, and set forth in United States v. Mauro, supra

note 5, (Mansfield, J., dissenting). See also Adams v. United

States, 423 . Supp. 578, 581 (16.D.N.Y. 1976).

The differences between a detainer and a writ of habeas

corpus ad prosequendum, in purpose, legal basis, and his-

torical context, are so fundamental as to constitute each a

separate, distinct avenue for obtaining custody of prisoners

for federal prosecution.

A detainer is a formal notification, lodged with the au-

thority under which a prisoner is confined, advising that

the prisoner is wanted for prosecution in another jurisdic-

tion. S.REP. NO. 91-1356, 91st Cong., 2nd Sess. 2, »eprinted

in [1970] U.S. CODE CONG. & AD. NEWS, 4864, 4865.

Long before the enactment of the Agreement, a detainer

was treated as merely a request that the prisoner not be

released until he could be taken into custody by the re-

questing state. In a sense, it was a request that the prisoner

be placed on the ‘‘will call’’ shelf, and many prisoners

labeled ‘‘will call’’ were never called for. On the other

hand, the sending state was under no obligation to detain

or deliver the prisoner except as it might choose to do so,

a privilege maintained in modified form by Article TV(a)

of the Agreement, which provides that the Governor of the

requested state may refuse the request within 30 days after

its receipt. The Agreement, as above indicated, added to

the ancient practice the penalty of dismissal for failure to

continued viability of 28 U.S.C. § 2241, because its judgment rested on the

pre-trial detainee status of one appellant.

The issue before us ix currently also before the Eighth Cireuit in Speed v.

United Statics, No. 77-1126, and before the Ninth Cirenit in Uniled States v.

Adkins, No, 762526. The Third Cirenit vaented its opinion in United Statea v.

Sorrell, No. 76-1617, and has set the case for rehearing en bane.

12a

OPINION OF THE COURT 7

prosecute the prisoner obtained in response to lodgement

of a detainer.

A federal writ of habeas corpus under § 2241 is by con-

trast a federal court order, commanding the presentation

of a prisoner for prosecution or as a witness in a federal

court. It is judicially controlled by the federal district

court, which may issue it for the production of a prisoner

when ‘‘it is necessary to bring him into court to testify or

for trial.’’ 28 U.S.C. §2241(c)(5). Upon receipt of such a

writ, state authorities deliver the prisoner in accordance

with its terms and in compliance with §2241.° If the court

which issued the writ is satisfied that the prisoner’s pres-

ence is no longer needed or will not be required tempo-

rarily, as occurred in this case following Kenaan’s arraign-

ment and his presentation of a guilty plea, it may order the

prisoner returned to state custody.

Analysis of the abuses which Congress and the states

sought to curb with the Agreement further illustrates the

differences between the detainer and the writ. Described

only as ‘‘uncertainties which obstruct programs of prisoner

treatment and rehabilitation’’ in Article I of the Agree-

ment quoted above, the abuses and their results were many.

Prior to the Agreement, detainers were filed indiscrimi-

nately, often with no notification to the prisoner, on mere

suspicion, and without procedural safeguards. Outstanding

detainers frequently provided grounds for denial of parole,

participation in special work, athletic and release programs,

visiting privileges, and minimum security status. Normally,

a prisoner was required to serve out his sentence in the

first ju: sdiction before being tried in the second, impeding

SIt appears that no state has ever refused to honor the writ and the

Supreme Court has found it unnecessary to decide whether the

Clause requires the states’ obedience. Carbo v. United States, 364 U.8. 611

(1961). In the unlikely event of such a confrontation, we are confident that

the writ would he held enforcible. See United States v. Mauro, supra note 5,

aut 506 n.! (Mansfield, J., dissenting) and United States v. Soallion, supra

note 5, slip op. at .7.

13a

8 U.S. V. KENAAN

chances for successful rehabilitation, hindering judges in

rendering appropriate sentences, preventing concurrent

service of sentences in the two jurisdictions and, as indi-

cated in Article I of the Agreement, hindering parole and

prison authorities in devising an appropriate rehabilitation

program for the prisoner concerned. Long delays before

trial in the second jurisdiction were prejudicial to the

prisoner’s defense as evidence was lost, witnesses disap-

peared, and memories faded. The mechanics of transfer

were complicated by an absence of uniform rules and states

were often reluctant to give up prisoners at all.” The Agree-

ment was specifically designed to remedy these problems by

clearing detainers against a prisoner through prompt dis-

position of charges in another jurisdiction.

A writ of habeas corpus ad prosequendum, however, has

never been associated with any of the foregoing problems.

As a court order, it is carried out immediately and is dis-

charged when the prisoner is returned to state custody, un-

like the detainer which had remained outstanding against

the prisoner prior to the Agreement. While federal charges

may remain pending against a prisoner after discharge of

a writ, ax was the case following Kenaan’s unaccepted offer

of a guilty plea, that situation does not involve the poten-

tial for abuse intended to be corrected by the Agreement.”

We share the District Court’s concern, and that of the

other federal courts which have expressed it, that Article

IV(e) of the Agreement not be made ‘‘meaningless,’’ which

could occur if federal authorities were to employ the writ

as merely a means of circumventing the strictures of the

Agreement. Our concern is lessened if not dissipated, how-

* For a more detailed account of the numerous problems whieh led to pas-

mage of the Agreement, see the thorough opinion accompanying the decision in

United States v. Ford, supra note 5.

10In this ense Kenaan would have been confined in the same facility if

held in federal custody during the conduct of his trial. Though argued by the

Government, the coincidence has not influenced our decision.

l4a

OPINION OF THE COURT 9

ever, by two further considerations. First, the concern rests

on a hypothetical. The writ and the actions taken pursuant

tuereto being under the control of the issuing court, we are

confident that the court will be alert to, and fully em-

powered to forestall, potential abuses of the writ. Second,

any concern over potential delay-in-trial abuses by the fed-

eral Government are further diminished by the provisions

of the federal Speedy Trial Act of 1974, 18 U.S.C. §§3161-

3174.

Moreover, the construction urged by Kenaan would im-

pliedly repeal or modify the statute establishing the writ,

§2241(c)(5), with no mention whatever of the slightest

congressional intent so to do in the legislative history of

the Agreement. That legislative history is totally silent

respecting any effeet of the Agreement on traditional fed-

eral writ practice."' Where two seemingly inconsistent acts

can reasonably stand together, a court must interpret them

in a manner which gives harmonious operation and effect to

both, in the absence of clear and unambiguous expression

of Congressional intent to the contrary. Morton v. Man-

cari, 417 U.S. 535, 549-551 (1973), United States v. Borden

Co., 308 U.S. 188, 198 (1939). The presumption against im-

plied repeal is even stronger here in view of the long his-

tory of the writ as a part of our legal framework under

common law and statute. As stated in United States v.

Mauro, supra note 5, at 597 (Mansfield, J., dissenting) :

The two statutes do not conflict with one another. When

they are so easily reconcilable, it is error, in my view,

to hold in effect that §2241 is implicitly repealed in

part by the Act. See Rosencrans v. United States, 165

U.S. 257, 17 S.Ct. 302, 41 L.Ed. 708 (1897).

‘I See the more detailed discussion of legislative history in the opinion

accompanying the decision in United States v. Scallion, supra note 5.

l5a

10 U.S. V. KENAAN

Finally, with respect to legislative intent, the apparent

conflict between the Agreement and the writ centers about

the particular use of the writ involved here, i.e., to produce

a prisoner for prosecution. That the writ may be used for

production of a prisoner as a witness, as specifically pro-

vided for in {2241, is not, however, immaterial to consid-

e;wion of congressional intent. Thus, if in enacting the

Agreement Congress had intended any modification or

amendment of $2241 it would have necessarily intended to

excise only the words ‘‘or for trial’’ from §2241(c)(5). A

total repeal would have disearded the provision for pro-

duction as witnesses for no apparent reason."? The ‘‘con-

flict’? between the detainer and the writ, being more ap-

parent than real, constitutes no evidence of congressional

intent to repeal $2241, in whole or in part. On the con-

trary, §2241 remains viable, in our view, in its entirety.

In summary, we hold that Kenaan’s transfers to federal

custody pursuant to writs of habeas corpus ad prosequen-

dum were not subject to the provisions of the Interstate

Agreement on Detainers Act. Accordingly, the order of

the District Court granting Kenaan’s motion to dismiss

the indictment is reversed and the case is remanded for fur-

ther proceedings not inconsistent herewith.

12 Transfer of the prisoner under a writ of ‘‘habeas corpus ad testifican-

dum’’ does not, of course, involve the abuses sought to be curbed by the

Agreement.

16a

United States Court of Appeals

for the First Circuit.

No. 77-1014.

UNITED STATES OF AMERICA,

APPELLANT,

0

ELIAS A. KENAAN,

DEFENDANT, APPELLEE.

Judgment.

Entered July 7, 1977

This cause came on to be heard on appeal from the

United States District Court for the District of Massachusetts,

and was argued by counsel.

Upon consideration whereof, It is now here ordered,

adjudged and decreed as follows: The District Court’s order

of dismissal is reversed and the case is remanded for further

proceedings in accordance with the opinion filed this day.

By the Court:

DANA H. GALLUP, Clerk.

17a

United States Court of Appeals

for the First Circuit.

No. 77-1014.

UNITED STATES OF AMERICA,

APPELLANT,

0

ELIAS A. KENAAN,

DEFENDANT, APPELLEE.

Order of Court.

Entered: July 19, 1977

Upon motion of and memorandum of appellee,

It is ordered that mandate be, and the same hereby is,

stayed pending the filing and disposition of a petition for

writ of certiorari in the Supreme Court of the United States,

the same to be filed by the time provided by law and notice

of such filing to be filed promptly with the Clerk of this

Court.

By the Court:

DANA H. GALLUP Clerk.