Petition — United States v. Ferro

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Iu the Supreme Court of the United States

OcToBER TERM, 1977

UNITED STATES OF AMBRICA, PETITIONER

JAMES W. Fynno

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Wave H. McCren, In.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Aasistant Attorney General,

JEROME M. Feit,

ELLIOTT SCHULDER,

Attorneys,

Department of Justice,

Washington, D.C. 20530,

INDEX

Page

Opinion below 8 1

Jurisdietion 1

Questions presented 2

Statutes involved —............ 2

Reasons for granting the writ 9

Conclusion 11

Appendix A la

Appendix B 20a

Appendix C " n

/ .

CITATIONS

Cases:

Ridgeway v. United States, C. A. 6, No, 76-

2145, decided July 18, 1977, petition for

a writ of certiorari pending, No. 77

. 10

United States v. Ford, 550 F. 2d 732, peti-

tion for a writ of certiorari pending,

No. 77-52 9, 10, 11

United States v. Kenaan, C. A. + No. 77.

1014, decided July 7, 1977, petition for

a writ of certiorari pending, No, 77-

206 9-10

United States v v. Mauro, 544 F. 2d 688,

petition for a writ of certiorari pending,

No. 76-1596 .. 8, 9, 10

United States v. Soallion, 548 F. 2d 1168,

petition for a writ of certiorari .

No. 76-6559

Statutes and rule:

Interstate Agreement on Detainers Act,

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

U.S.C,

App., pp. 4475-4478

Section 2 =e = 3 „„ „* „„

eee

— ——

Article IV (e)

Article IV(e) ea

Article N .

18 U.S.C, 1341 3

28 U.S.C. RETR

Ohio Rev. Code §§ 2963.30-2963.35 (1975

Repl.)

Rule 12, Federal Rules of Criminal Pro-

cedure ..

SOS SESS OSS OOS OES OSS SEE SE SESS SH SESS SSS SES CESSES SSS SSS SSes

Page

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Iu the Supreme Court of the United States

OCTOBER TERM, 1977

No.

UNITED STATES OF AMERICA, PETITIONER

JAMES W. FERRO

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, in

is reported at 556 F.2d 630. *

JURISDICTION

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

infra) was entered on February 8, 1977. A petition

for rehearing with a suggestion for rehearing en banc

(1)

was denied on June 29, 1977 (Apps. C and D, infra).

On July 21, 1977, Mr. Justice Marshall extended the

time for filing a petition for a writ of certiorari to

and including August 28, 1977 (a Sunday). The ju-

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

1254(1).

QUESTIONS PRESENTED

1. Whether a writ of habeas corpus ad prosequen-

dum issued by a federal court to state authorities,

directing the production for trial on federal criminal

charges of a state prisoner against whom a federal

detainer has previously been lodged, constitutes a

“written request for temporary custody” making ap-

plicable the terms and conditions of Article IV of the

Interstate Agreement on Detainers Act.

2. Whether respondent, by failing to raise the issue

in the district court, walve d the claim that his indict-

ment 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 * * *

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 imprisonment

there is pending in any other party State any

untried indictment, information, or complaint

on the basis of which a detainer has been lodged

against the prisoner, he shall be brought to trial

within one hundred and eighty days after he

shall have caused to be delivered to the prose-

cuting officer and the appropriate court of the

prosecuting officer’s jurisdiction written notice

of the place of his imprisonment and his request

for a final disposition to be made of the indict-

ment, 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.

e) If trial is not had on any indictment, in-

44 * or complaint contemplated hereby

prior to the prisoner's being returned to the

original place of imprisonment pursuant to arti-

cle Ve) 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.

Article V

(a) In response to 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.

2. 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. * * *

* * . * x

tend to a prisoner unless—

* * * + *

(5) It is necessary to bring him into

court to testify or for trial.

* * * a *

STATEMENT

1. In September 1973, respondent and co-defendant

James Cyphers were charged in an indictment (73

CR 848) filed in the United States District Court for

the Eastern District of New York with mail fraud,

in violation of 18 U.S.C. 1341 and 2. The charges

resulted from participation by respondent and Cyphers

in a fraudulent scheme to obtain airline tickets by

using lost or altered credit cards; the tickets were

thereafter sold to customers at a discount through the

mails (App. A, infra, pp. 2a-8a).

When the indictment was returned, respondent was

serving a prison sentence in Ohio on an unrelated

state offense (id. at 8a). Pursuant to a writ of

habeas corpus ad prosequendum issued by the United

States District Court for the Eastern District of New

York, respondent was brought from Ohio for arraign-

ment before the district court on October 12, 1973,

and entered a plea of not guilty (J. App. A, pp. 1-2).

Subsequently, federal authorities returned respondent

to state custody and lodged a federal detainer against

him with Ohio authorities (App. A, infra, p. 9a).

On February 5, 1974, respondent was again pro-

duced before the district court by means of a writ of

habeas corpus ad prosequendum (J. App. A, p. 2).

While he was in federal custody, the original indict-

ment had been dismissed in favor of a superseding

indictment (74 CR 322) (id. at 3-4), to which re-

spondent also pleaded not guilty (id. at 4). Respondent

was thereafter again returned to Ohio (App. A, infra,

p. 9a), where he remained until his return to federal

custody for trial in January 1976 (ibid.).

Following a jury trial, respondent was convicted

of two counts of mail fraud charged in the super-

seding indictment, as well as a third mail fraud count

charged in another indictment (75 CR 259) filed

after his return to Ohio. He was fined a total of

$3,000 and sentenced to concurrent terms of four

years’ imprisonment on the first and third counts,

and to a five-year probationary term on the second

count, to run consecutively to the concurrent prison

terms.’

J. App.” refers to the Joint Appendix to Appellants’

Briefs in the court of appeals.

2 Co-defendant Cyphers was similarly convicted and was

’ imprisonment,

sentenced to concurrent terms of five years

with a consecutive five-year probationary term, and a total

of $3,000 in fines.

2. On appeal to the Second Circuit, respondent

argued for the first time that the indictment on which

he had been tried and convicted should have been dis-

missed with prejudice because he had been returned

from federal to state custody without having first

been tried on the federal charges, in alleged violation

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

tainers Act (“Agreement’’).* Article IV of the Agree-

ment provides that the prosecuting authority of a

member state that 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

presentation of a “written request for temporary cus-

tody,” obtain temporary custody of the prisoner for

purposes of trial. The Agreement further provides

that a prisoner so procured must be tried (a) within

120 days of his arrival in the receiving state (subject

to continuances granted “for good cause shown in

open court”) and (b) prior to being returned to the

sending state, or else the charges against him shall

be dismissed with prejudice. Articles IV(c), IV(e),

and V(c).*

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

cember 9, 1970, Sections 1-8, 84 Stat. 1397-1408, 18 U.S.C.

App., pp. 4474-4478. At all times relevant hereto, Ohio was

also a party to the Agreement. Ohio Rev. Code §§ 2963.30-

2963.35 (1975 Repl.).

Article III of the Agreement provides an alternative

means by which transfer of the prisoner may be accomp-

lished. Under Article III(c), prison officials are required to

notify each prisoner of any criminal charge on the basis

A divided panel of the court of appeals reversed

respondent’s conviction and dismissed the superseding

indictment (74 CR 322) with prejudice.“ Relying on

its earlier decision in United States v. Mauro, 544

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

pending, No. 76-1596, the court held that federal

authorities had violated Article IV(e) of the Agree-

ment in 1974 by obtaining respondent by means of a

writ of habeas corpus ad prosequendum and then re-

turning him to Ohio authorities without trial on the

federal charges (App. A, infra, pp. 9a-11a).° In addi-

of which a detainer has been lodged against him by an-

other jurisdiction, and, further, to inform the prisoner of

his right to request trial on the charges underlying the de-

tainer. 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).

5’ Because the third indictment (75 CR 259), involving

a separate transaction, was filed on April 1, 1975, after

respondent had been returned to Ohio, the court concluded

that dismissal of that indictment was not required. The

court also remanded the case to the district court for further

consideration (with regard to respondent on the remaining

indictment and with regard to Cyphers on all counts) of an

alleged violation of the local speedy trial rules (App. A,

infra, pp. 1la-15a).

* Respondent did not challenge, and the court did not dis-

cuss, his return in 1973 prior to the time that a detainer

had been lodged. For the reasons stated in our petition in

United States v. Mauro, supra, we do not believe that this

transfer violated Article IV(e) of the Agreement.

tion, the majority rejected the government’s argument

that respondent had waived any claim under the

Agreement by failing to move for dismissal on that

basis in the district court. The court concluded that,

because the government had not shown that respond-

ent was aware of the detainer before trial, he should

be allowed to invoke the Agreement for the first time

on appeal (App. A, infra, pp. ga-11a).

Judge Timbers, dissenting, expressed the view that,

under Rule 12 of the Federal Rules of Criminal Pro-

cedure, respondent had waived his claim under Article

IV(e) by his failure to raise it prior to or at trial

(App. A, infra, pp. 16a-19a).

REASONS FOR GRANTING THE WRIT

The questions presented in this case are the same

as the questions presented in United States v. Ford,

550 F.2d 732 (C.A. 2), petition for a writ of certio-

rari pending, No. 77-52.“ In Ford the United States

The questions presented are also related to the question

presented in United States v. Mauro, supra. In Mauro we

are seeking review of a decision of the Second Circuit that

a federal writ ad prosequendum, directing that federal au-

thorities be given custody of a state prisoner, itself consti-

tutes a “detainer” within the meaning of Article IV of the

Agreement. Other circuits have held, contrary to the Sec-

ond Circuit, that a federal writ ad prosequendum is not a

detainer and constitutes an alternative method, separate and

apart from the Agreement, for securing the presence of

state prisoners for trial on federal charges. See United

States v. Scallion, 548 F.2d 1168 (C.A. 5), petition for a

writ of certiorari pending, No. 76-6559; United States v.

Kenaan, C. A. 1, No. 77-1014, decided July 7, 1977, petition

has sought review of a decision of the Second Circuit

holding that Article IV of the Agreement governs the

transfer of a state prisoner by a federal writ of

habeas corpus ad prosequendum after a “detainer”

had been filed against him with state prison authori-

ties. We have also presented the additional question

whether the defendant waived his claim under the

Agreement by failing to raise it in the district court.

For the reasons stated in our petition in Ford, we

believe that Article IV (e) of the Agreement is inappli-

cable to transfers of state prisoners by writs of habeas

corpus ad prosequendwm and that, in any event, a

defendant waives his rights under the Agreement by

failing to raise the issue in the district court." Should

this Court grant the petition in Ford and reverse the

decision of the court of appeals on either ground, it

should also reverse the court of appeals’ decision in

this case. We recommend, therefore, that this Court

hold the present petition pending its disposition of

United States v. Ford, supra.

for a writ of certiorari pending, No, 77-206; Ridgeway v.

United States, C. A. 6, No, 76-2145, decided July 13, 1977,

petition for a writ of certiorari pending, No, 77-5252.

We are sending respondent copies of our petitions in

Ford and Mauro,

Although this case involves a waiver of rights under

Article IV(e) of the Agreement, whereas Ford involves a

waiver of rights under Article IV (e) (the speedy trial pro-

vision), we do not believe that distinction to be of legal

significance,

CONCLUSION

The petition for a writ of certiorari should be dis-

posed of as appropriate in light of this Court’s dispo-

sition of United States v. Ford, supra.

Wave H. Mom, In.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Fert,

ELLIOTT SCHULDER,

A 8.

AvuaGust 1977. *

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 328, 329—September Term, 1976

(Argued October 18, 1976 Decided February 8, 1977)

Docket Nos. 76-1131, 76-1160

UNITED STATES OF AMERICA, APPELLEE

JAMES SEELEY CYPHERS and JAMES W. FERRO,

APPELLANTS

Before:

SMITH, OAKES and TIMBERS,

Circuit Judges

SMITH, Circuit Judge:

This is an appeal by James Cyphers and James

Ferro from judgments of conviction on three counts,

based on two indictments, of violating 18 U.S.C.

§ 1341 (mail fraud) after a jury trial in the United

States District Court for the Eastern District of New

York, Thomas C. Platt, Jr., Judge. Both Cyphers

and Ferro claim that the eviderce was not sufficient

to establish any violation of § 1341 and that they

were denied their right to a speedy trial. Cyphers

also claims that Judge Platt erred in admitting cer-

tain evidence and in denying his request that he be

allowed to make the argument to the jury. Ferro also

claims that his trial violates the Interstate Agree-

ment on Detainers. We reverse on two counts as to

Ferro’s claim involving the Interstate Agreement on

Detainers. We find some possible merit in the speedy

trial claim on all counts and therefore remand for

further consideration. We find no merit in the other

claims.

Cyphers and Ferro were found guilty by a jury on

three counts of using the mail to defraud airline com-

panies by means of altered credit cards and identifi-

cations, in violation of 18 U.S.C. § 1341. The essence

118 U.S.C. § 1841 provides:

Whoever, having devised or intending to devise any

acheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, rep-

resentations, or promises, or to sell, dispose of, loan, ex-

change, alter, give away, distribute, supply, or furnish or

procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything repre-

sented to be or intimated or held out to be such coun-

terfeit or spurious article, for the purpose of executing

auch scheme or artifice or attempting so to do, places in

any post office or authorized depository for mail matter,

any matter or thing whatever to be sent or delivered by

the Postal Service, or takes or receives therefrom, any

auch matter or thing, or knowingly causes to be delivered

by mail according to the direction thereon, or at the place

of the government’s case was that Cyphers and Ferro

had a scheme for fraudulently obtaining airline tickets

by using lost or altered credit cards and that they

mailed airline tickets so obtained to Dr. I. Simon on

or about February 3, 1973 and on or about February

26, 1973 and to Dr. Stuart Sylvan on or about Febru-

ary 19, 1973.

Relying on United States v. Maze, 414 U.S. 895

(1974), Cyphers and Ferro claim that the evidence

was insufficient to establish any violation of § 1841.

In Maze the only mailings were of credit invoices by

motel employees, and the Supreme Court held that

Maze’s use of one Meredith’s credit card to obtain

goods and services at motels did not constitute a vio-

lation of § 1841, since Maze “probably would have

preferred to have the [credit] invoices misplaced by

the various motel personnel and never mailed at all.“

Id., at 402, Cyphers and Ferro claim there was no

violation of § 1341 because in each case they had pur-

chased the ticket and received payment from either

Dr. Simon or Dr. Sylvan prior to mailing the ticket,

and so “the mailing here bore no relation to appel-

lants’ acquisition of the fruits of their fraud” (Brief

of Appellant Ferro at 20); “any fraudulent scheme

would have been no less successfully consummated

had the airline tickets never been delivered” (Brief

for Appellant Cyphers at 25). Cyphers and Ferro

at which it is directed to be delivered by the person to

whom it is addressed, any such matter or thing, shall be

fined not more than $1,000 or imprisoned not more than

five years, or both.

also claim that there was no evidence showing that

either the tickets received by Dr. Simon on February

8 or the tickets received by Dr. Sylvan were fraudu-

lently purchased by appellants.

In United States v. Finkelstein, 526 F.2d 517, 526-

27 (2d Cir. 1975), cert. denied, —— US. ——

(1976), we set out the elements involved in a violation

of § 1341: “sufficient evidence in the record to permit

a jury to infer beyond a reasonable doubt that a

scheme or artifice to defraud existed, that the par-

ticipants in the scheme caused the mails to be used

in furtherance of that scheme, and that the defendant

was a participant in the fraudulent scheme.

Irrelevant is the fact that he the defendant] did

not personally mail the count letter or directly involve

himself in the transaction. . . . It is enough that he

participated in the scheme and that it was foreseeable

that the scheme would involve use of the mails.”

Construing the evidence in the light most favorable

to the government, United States v. Barash, 412 F.2d

26, 31 (2d Cir.), cert. denied, 396 U.S. 832 (1969),

we hold that the evidence was sufficient to show that

both Cyphers and Ferro committed three violations

of § 1341.

Dr. Simon, a dentist, testified that he frequently

traveled to Florida from Long Island and was told

by George Nagin, a friend, that airline tickets for

Florida could be obtained at a discount. Dr. Simon

called Nagin and had him order round-trip tickets for

a February 8, 1973 flight from John F. Kennedy Air-

port (“JFK”) to West Palm Beach. After he paid

Nagin, Dr. Simon received the tickets in the mail on

or about February 3, 1973. This transaction was the

basis of Count I of indictment 74 CR 322. Again in

February, 1973 Dr. Simon needed tickets to Florida;

since Nagin was in Florida, Dr. Simon went to Na-

gin’s Manhattan office to pick up the tickets ordered

through Nagin’s business associate. At Nagin’s office

Dr. Simon met a man who gave him the tickets he

had ordered; at the same time Dr. Simon ordered

tickets for his partner, Dr. Sylvan. Dr. Sylvan testi-

fied that he received these tickets in the mail on or

about February 14, 1973; this transaction was the

basis of Count II of indictment 74 CR 322. At the

end of February, 1973 Dr. Simon again purchased

airline tickets through Nagin for a flight between

JFK and Florida, and he received these tickets

through the mail. This transaction was the basis of

Count I of indictment 75 CR 259.

George Nagin testified that he had been told by

Cyphers about the availability of cheap airline tickets

and that he had purchased tickets from Cyphers, at

a discount, for his own use. Nagin also testified that

either Cyphers or Ferro, Cyphers’ nephew, picked up

the money when Dr. Simon had ordered tickets.

Cyphers had given Nagin a telephone number, 832-

1211, in order that he could be reached for orders,

and Nagin had given this number to Dr. Simon.

This telephone number was proven to have been in-

stalled, together with an answering device, in

Cyphers’ apartment.

On March 19, 1973 an arrest warrant for Cyphers

and Ferro was issued pursuant to a complaint of a

Postal Inspector, and the warrant was executed

against Cyphers and Ferro at Cyphers’ apartment

on March 20, 1973. Consent to search the apartment

was obtained from Cyphers, and various drivers’ li-

censes, credit cards, a credit card validator, and

various credit card company bulletins reporting stolen

credit cards were found in Cyphers’ briefcase and

in his apartment.

One of the seized credit cards bore the name of

Richard Redstrom. Richard Rooney, manager of com-

mercial credit for United Airlines, testified that a

credit card bearing the account number found on the

Redstrom credit card was issued by United Airlines

to Richard Hedstrom and that the credit card had

been altered to read Richard Redstrom. Richard

Hedstrom testified he lost his credit card on February

23, 1973. Rooney testified that numerous airline

tickets had been purchased on February 26, 1973 at

Boston on the Hedstrom/Redstrom credit card and

that the airline had received no payment for these

tickets. The signatures on the Hedstrom/Redstrom

charge slips were identified as Ferro’s. The airline

tickets purchased on February 26 included the one

received by Dr. Simon at the end of February and

others for flights leaving from Newark, Chicago,

Cleveland, and Los Angeles.

It was stipulated that a Fred Preston Staff credit

card had been reported lost and that three airline

ticket charge slips were incurred with the use of the

credit card after its reported loss. There was evi-

dence from which the jury could believe that Cyphers

had signed these airline tickets charge slips. One

of these charge slips involved an air line ticket pur-

chased in Newark for a flight scheduled to depart

from Los Angeles.

While there is no direct evidence that either

Cyphers or Ferro purchased either the tickets re-

ceived by Dr. Simon on February 3 or the tickets

received by Dr. Sylvan, the jury could find from the

evidence summarized above and other evidence (in-

cluding two other lost credit cards that were found

in Cyphers’ briefease on March 20 and had been

altered and used by Ferro to purchase airline tickets

that were not paid for)’ that Cyphers and Ferro had

a scheme that included the fraudulent purchase of

Dr. Simon’s February 3 tickets and Dr. Sylvan’s

tickets.

While Cyphers and Ferro might have delivered the

tickets to Dr. Simon and Dr. Sylvan in person, they

were mailed and the jury could find that these mail-

ings were part of the general scheme to mail airline

tickets to people in New York, Chicago, Cleveland,

and Los Angeles. The jury could also find that the

2 This evidence was properly admitted during the govern-

ment’s case in chief, since it was not introduced solely to show

the defendants’ criminal character and its probative worth on

the existence of the fraudulent scheme outweighed its po-

tential prejudice. United States v. Grady, —— F.2d .

slip op. 291, 302 (2d Cir., Oct. 27, 1976) ; United States

v. Torres, 519 F.2d 723, 727 (2d Cir.), cert. denied, 423 U.S.

1019 (1975).

fraudulent scheme depended on repeat business from

satisfied customers of Cyphers and Ferro and that

the delivery of the tickets was an essential part of

the scheme. Under the standards set out in Finkel-

stein the evidence was sufficient to support the con-

viction of both Cyphers and Ferro on all three counts.

II.

Cyphers was represented by an attorney during

the trial. Relying on Faretta v. California, 422 U.S.

806 (1975), and Herring v. New York, 422 U.S. 853

(1975), Cyphers claims he has a sixth amendment

right to make his own summation.

This reliance is misplaced. Herring does say that

“a defendant who has exercised the right to conduct

his own defense has, of course, the same right to

make a closing argument.” 422 U.S. 864, n. 18. But

neither Faretta nor Herring deals with a defendant

who is represented by counsel and wishes to par-

ticipate as co-counsel. In United States v. Wolfish,

525 F.2d 457, 462-63 (2d Cir. 1975) (per curiam),

cert. denied, 423 U.S. 1059 (1976), which was de-

cided after Faretta and Herring, we held that a de-

fendant who is represented by counsel has no sixth

amendment right to participate as co-counsel. We

reaffirm that holding.

III.

On July 19, 1973 Ferro, who was on bail, sur-

rendered to Ohio authorities to begin serving his

prison term for a previous unrelated offense. On

— —— K —ͤàꝗäm

September 20, 1973 a writ of habeas corpus ad pro-

sequendum was served, and on October 12, 1973 he

appeared in the United States District Court for the

Eastern District of New York and entered a plea of

not guilty. He was then returned to the custody of

Ohio authorities. On November 12, 1973 the United

States lodged a detainer in Ohio against Ferro, and

on January 25, 1974 the government served another

writ of habeas cornus ad prosequendum. In the spring

of 1974 Ferro appeared several times in the United

States District Court for the Eastern District of

New York, and on June 26, 1974 Judge Travia or-

dered Ferro “to be returned from whence he came.”

The records of the Bureau of Prisons indicate that

he was returned to Ohio State Reformatory, Mans-

field, Ohio. He was tried in January, 1976.

Ferro claims that his 1974 transfer to Ohio vio-

lates Article IV(e) of the Interstate Agreement on

Detainers (“the Agreement“), 18 U.S. C. A. Appendix.

Ferro first raised this claim in a supplemental brief

filled with this court in October, 1976, and the govern-

ment argues that his failure to raise this claim

prior to trial constitutes a waiver under Rule 12 (f)

of the Federal Rules of Criminal Procedure.

While the policies underlying Rule 12 (f) are help-

ful guides, they are not determinate in construing a

statute. Article III of the Agreement provides that

the defendant shall be brought to trial within 180

days after the detainer has been lodged provided that

he makes a written request to that effect. Article

IV(e), on the other hand, makes no reference to a

10a

request by the prisoner and says “if trial is not had

on any indictment .. . prior to the prisoner’s being

returned to the original place of imprisonment .. .

such indictment . . . shall not be of any further

force or effect, and the court shall enter an order

dismissing the same with prejudice.” In other words,

if a state in which a prisoner is charged does not

take the initiative to bring a prisoner back for trial

the prisoner may require it to do so rather than suffer

indefinitely the effects of the detainer on his imprison-

ment in the state of his incarceration. If a state does

take the initiative and bring him from the state of

imprisonment to the accusing state it must complete

the prosecution before returning him. The main pur-

pose of the Act is to provide means for expeditious

resolution of all outstanding charges which may af-

fect the conditions or duration of imprisonment and

treatment. Article I of the Agreement says that one

“purpose of this agreement [is] to encourage the

expeditious and orderly disposition of such charges.

.. Bringing Ferro from Ohio to New York in

January, 1974, returning him to Ohio in the summer

of 1974, and then again bringing him to New York

for trial in New York in January, 1976, is not an

“orderly disposition” of his federal case and violates

Article IV (e).

Article IX of the Agreement says “[t]his agree-

ment shall be liberally construed so as to effectuate

its purposes.” While the government initially argued

on appeal (Supplemental Brief at 3, n.2) that there

was nothing in the record indicating that a detainer

lla

had been lodged against Ferro, the record now before

us indicates that a detainer was lodged against Ferro.

There is no showing that Ferro knew, prior to trial,

that the detainer had been lodged against him. In

such a situation we hold that Ferro may invoke Ar-

ticle IV(e) for the first time on appeal to this court.

We therefore order indictment 74 CR 322, which

was filed on April 23, 1974, dismissed with prejudice

as to Ferro. United States v. Mauro, —— F.2d ——,

slip op. 265 (2d Cir., Oct. 26, 1976). Indictment 75

CR 259 involving a separate transaction was filed on

April 1, 1975 after Ferro had been returned to Ohio.

Prosecution under it did not violate the Agreement

and it will not be dismissed.

IV.

Based on a complaint by Postal Inspector Robert

McDowall, an arrest warrant was issued for Cyphers

and Ferro on March 19, 1973 and they were both

arrested on March 20, 1973. On September 18, 1973

a 43-count indictment, 73 CR 848, was filed against

Cyphers and Ferro; 40 counts involved the mailing

of credit invoices and three counts (counts 20, 21 and

22) involved the mailing of airline tickets to indi-

vidual purchasers. On September 19, 1973 a notice of

readiness was filed. Cyphers entered a plea of not

guilty on September 20, 1973, and Ferro entered a

plea of not guilty on Cctober 12, 1973.

Following the Supreme Court’s decision in Maze

in January, 1974, appellants moved on February 19,

1974 to dismiss the original indictment. The motion

unn r e eee

12a

was granted on April 5, 1974, and on April 23, 1974

a new indictment, 74 CR 822, was filed, charging

Cyphers and Ferro with two counts of mailing of air-

line tickets. Count I of 74 CR 322 was derived from

Count 20 of the original indictment. The government

filed its new notice of readiness on May 13, 1974.

On April 1, 1975 the government filed another in-

dictment, 75 CR 259, charging Cyphers and Ferro

with one count of mailing an airline ticket. The

government filed its notice of readiness on this in-

dictment on June 6, 1975.

Trial on indictments 74 CR 322 and 75 CR 259

began on January 5, 1976. Cyphers and Ferro claim

that the long delay between their arrest and the gov-

ernment’s readiness for trial violates Rule 4 of the

Eastern District’s Plan for the Prompt Disposition

of Criminal Cases “(the Plan”). Ferro also claims

that the 33-month delay between his arrest and the

trial violates his sixth amendment right to a speedy

trial.

In Barker v. Wingo, 407 U.S. 514 (1972), the

Supreme Court set forth some of the factors the

Court should consider in deciding whether a defend-

ant’s sixth amendment right to a speedy trial has

been violated: “length of delay, the reason for the

delay, the defendant’s assertion of his right, and

prejudice to the defendant.” Id. at 530.

In Barker the delay was over five years; here it

was less than three years. Part of the delay is at-

tributable to the illness of a key government witness

(Dr. Sylvan), the change in legal theory necessitated

18a

by the Supreme Court’s decision in Maze, and a shift

in defense counsel. On April 9, 1975 Ferro moved

to dismiss the indictments on the ground that his

sixth amendment right was violated. Ferro does not

claim that the delay prejudiced his defense. He claims

(Brief for Appellant Ferro at 31-32) that he was

prejudiced because his incarceration in New York

during the spring of 1974 prevented a timely con-

sideration of his parole by Ohio authorities and in-

terfered with the rehabilitative possibilities of being

incarcerated in Ohio; he also claims he was prejudiced

by not being able to receive a federal sentence partly

concurrent with his Ohio sentence. These types of

prejudices, to the extent they are included in the hold-

ing of Barker, are less serious than the prejudice of

an impaired defense. Barker v. Wingo, 407 U.S. at

532. Engaging “in a difficult and sensitive balanc-

ing process,” Barker, 407 U.S. 533, we hold that

Ferro’s sixth amendment right to a speedy trial was

not violated.’

Rule 4 of the Plan provides that “in all cases the

government must be ready for trial within six months

from the date of the arrest... or the filing of a

complaint or of a formal charge upon which the de-

fendant is to be tried (other than a sealed indict-

ment), whichever is earliest.“ Rule 5 of the Plan

* But ef. United States v. Vispi, —— F.2d ——., slip op. 513

(2d Cir., Nov. 15, 1976) (20-month delay violates sixth

amendment).

The full text of Rule 4 of the Plan is printed at United

States v. Flores, 501 F.2d 1356, 1358 n. 1 (2d Cir. 1974).

14a

gives various provisions for tolling the six-month

period.“

On December 18, 1974 Judge Platt denied appel-

lants’ motion to dismiss indictment 74 CR 322, and

on April 18, 1975 he denied their motion to dismiss

indictment 75 CR 259. In his first ruling he relied

on Postal Inspector McDowall’s affidavit that the in-

vestigation and preparation of this complex case ex-

tended beyond the date on which appellants were ar-

rested, and Judge Platt ruled that Rule 5(c) (ii) of

the Plan therefore tolled the six-month period. Judge

Platt did not, however, make a finding as to when

the government’s investigation and preparation of

the case was completed. Judge Platt’s April 18, 1975

ruling does not fully articulate his reasons for deny-

ing appellants’ motion.

For purposes of computing the six-month period

of Rule 4 of the Plan, the time begins when Ferro

and Cyphers were arrested on March 20, 1973. In

this case the period initially stops when the govern-

ment filed its notice of readiness on September 19,

1973.“ Since Ferro was continuously incarcerated

in New York and Cyphers was continuously on bail,

»The full text of Rule 5 of the Plan is printed at Flores,

501 F.2d 1359 n. 2.

* Normally the period would end when the government filed

its notice of readiness after the defendants had entered their

pleas of not guilty. United States v. Bowman, 498 F.2d 594,

597 (2d Cir. 1974). But in this case the defendants’ pleas

were entered within a reasonable time of the government’s

filing of its notice of readiness and before our decision in

Bowman.

15a

the six-month period resumes when indictment 73

CR 848 was dismissed on April 5, 1974 and ends

(1) on indictment 74 CR 322 when the government

filed its notice of readiness on May 13, 1974 and (2)

on indictment 75 CR 259 when the government filed

its notice of readiness on June 6, 1975. Without tak-

ing account of any of the tolling provisions of the

Plan, the period under Rule 4 of the Plan is, there-

fore, 7 months and 7 days for indictment 74 CR

322 and 20 months for indictment 75 CR 259.“

We therefore remand for determination as to whether

any of the tolling provisions of the Plan are appli-

cable. United States v. Flores, 501 F.2d 1856 (2d

Cir. 1974) (per curiam ).’

Reversed and dismissed with prejudice as to in-

dictment 74 CR 822 as to Ferro and remanded for

further consideration in light of this opinion.

March 20, 1973-September 19, 1973: 5 months, 29 days

April 5, 1974-May 13, 1974: 1 month, 8 days

Total time: 7 months, 7 days

* March 20, 1973-September 19, 1973: 5 months, 29 days

April 5, 1974-J une 6, 1975: 14 months, 1 day

Total time: 20 months

„ Assuming, arguendo, that the district court, after the

hearing, dismisses indictment 75 CR 259 with prejudice as to

both Cyphers and Ferro and does not dismiss indictment 74

CR 822 as to Cyphers, a new trial would be unnecessary for

Cyphers. The evidence concerning the transaction which forms

the basis of indictment 75 CR 259 and the evidence dealing

with Ferro’s participation in the scheme were admissible as

to Cyphers on indictment 74 CR 322 (see fn. 2, supra).

16a

TIMBERS, Circuit Judge, concurring in part and dis-

senting in part:

I concur in the judgment and opinion of the Court

in all respects with the exception of Part III, as to

which I respectfully dissent, since I believe that

Ferro’s failure to raise his claim under Article IV

(e) of the Interstate Agreement on Detainers (the

Agreement) until his supplemental brief on appeal—

never in the district court—constituted a waiver un-

der Fed. R. Crim. P. 12(f).

A claim founded on a violation of Article IV (e)

of the Agreement stems from the government’s ad-

ministrative treatment of the defendant after indict-

ment and before trial. As such, it is a defense “based

on defects in the institution of the prosecution” with-

in the meaning of Fed. R. Crim. P. 12(b)(1) and

“must be raised prior to trial” or it is waived under

Fed. R. Crim. P. 12(f). Those defenses “capable

of determ nation without the trial of the general is-

sue” which may be raised at the defendant’s option

prior to or at trial—the principal examples being

double jeopardy, res judicata, statute of limitations

and immunity—concern matters as to which only the

fact of the prosecution’s institution and not the de-

tails attending it are relevant. Furthermore, Article

I of the Agreement states as its purpose “to encour-

age the expeditious and orderly disposition of .. .

charges. . . In light of this, Ferro’s Article IV

(e) claim fairly may be characterized as a species of

speedy trial claim. It is well established that a

speedy trial claim must be timely asserted. See, e.g.,

17a

Barker v. Wingo, 407 U.S. 514, 581-32 (1972);

United States v. Lustman, 258 F.2d 475 (2 Cir.),

cert. denied, 358 U.S. 880 (1958).

| disagree with the majority’s construction of the

Agreement so as to render an Article 1V(e) claim

not subject to waiver. Such construction is not re-

quired by the Agreement or by any decision of the

Supreme Court of which I am aware. On the con-

trary, the orderly administration of criminal justice,

in my view, requires that Rule 12 and the Agree-

ment be accommodated. The manifest purpose of

Article 1V(e) is deterrence. It bespeaks a judgment

that only the ultimate sanction of dismissal of the

indictment will insure the government’s compliance

with the Agreement’s purpose of securing the ex-

peditious disposition of charges which require the

lodging of detainers. Since the government hardly

can rely on defendants to fail to raise Article 1V(e)

claims in pre-trial motions,’ no material interference

Even if the pre-trial motion requirement of Rule 12(f)

were inapplicable, surely Ferro waived his claim under Article

1V(e) for failure to have raised it at trial. See 8 Moore's

Federal Practice | 12.08[1] (2 ed. 1976). United States v.

Friedland, 391 F.2d 878 (2 Cir. 1968), cert. denied, 404 U.S.

867 (1969).

Fed. R. Crim. P. 12 (e) provides that the district court

may set the time for making pre-trial motions, The Rule

12(f) waiver provision applies to any Rule 12(b) (1) motion

not made at that time. It is not difficult to conceive of a situ-

ation in which a return to custody giving rise to an Article

IV(e) claim might occur after the disposition of motions

under Rule 12. Precisely that situation arose here. Ferro

made a motion to dismiss indictment 74 Cr. 322 on May 1974.

The motion was denied on June 4. He was not returned to

18a

with the deterrent purpose of Article IV(e) would

result from the application of Rule 12(f).

Finally, the majority’s holding that Ferro may in-

voke Article IV(e) for the first time on appeal on

the ground that [there is no showing that Ferro

knew, prior to trial, that the detainer had been

lodged against him“, —— F.2d at ——, strikes me

as blinking at the hard facts. Whatever may have

been the state of Ferro’s knowledge of the detainer,

he obviously knew of his own transfer to New York

at the end of January 1974 and his return to Ohio

prior to trial pursuant to Judge Travia’s order of

June 26, 1974. Under these circumstances, Ferro

clearly had knowledge of facts sufficient to put him

on notice of the existence of the claim which he waived

under Rule 12(f). Cf. Shotwell Manufacturing Co.

v. United States, 371 U.S. 341, 362-63 (1963) ; United

States v. Reynolds, 300 F.Supp. 503, 505-06 (D. D.C.

1969).

I therefore dissent from the dismissal of indict-

ment 74 Cr. 322 as to Ferro and would include his

two-count conviction under that indictment in the

remand for determination as to the applicability of

Ohio until after June 26. But since the Article IV (e) claim

did not come into existence until his return to custody, there

was nothing to be waived by his earlier motion to dismiss.

The obvious course would be for the district court to enter-

tain a second motion. Nothing in Rule 12 forecloses such a

motion, since no Rule 12(f) waiver would have occured.

Significantly, Ferro could have included his Article IV(e)

claim in the motion to dismiss which he made on November

20, 1974.

19a

the Eastern District Plan for the Prompt Disposi-

tion of Criminal Cases. Ferro himself, in his brief

before us, suggested such a remand with respect to

both indictments.

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

76-1131

76-1160

[Filed July 18, 1977, in Clerk’s Office,

U.S. District Court E.D. N. V.]

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

eighth day of February one thousand nine hundred

and seventy-seven.

Present: HON. J. JOSEPH SMITH

HON. JAMES L. OAKES

HON. WILLIAM H. TIMBERS

Circuit Judges,

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES SEELEY CYPHERS AND JAMES W. FERRO,

DEFENDANTS-APPELLANTS

Appeal from the United States District Court for the

Eastern District of New York

This cause came on to be heard on the transcript

of record from the United States District Court for

21a

the Eastern District of New York, and was argued

by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judg-

ment of said District Court as to appellant James W.

Ferro, be and it hereby is reversed in part and dis-

missed with prejudice as to Indictment 74 Cr 322 and

that the actions be and they hereby are remanded to

said District Court for further proceedings in accord-

ance with the opinion of this court.

A. DANIEL FUSARO

Clerk

By VINCENT A. CARLIN

Chief Deputy Clerk

22a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

76-1131

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 twenty-ninth day of June, one thousand nine

hundred and seventy-seven.

Present: HON. J. JOSEPH SMITH,

HON. JAMES L. OAKES,

HON. WILLIAM H. TIMBERS,

Circuit Judges.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES SEELEY CYPHERS AND JAMES W. FERRO,

DEFENDANTS-APPELLANTS

A petition for a rehearing having been filed here-

in by counsel for the appellee, United States of

America

Upon consideration thereof, it is

Ordered that said petition be and hereby is DE-

NIED.

A. DANIEL FUSARO

Clerk

23a

APPENDIX D

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

76-1131

At a stated term of the United States Court cf

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

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

on the twenty-ninth day of June, one thousand nine

hundred and seventy-seven.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

JAMES SEELEY CYPHERS AND JAMES W. FERRO,

DEFENDANTS-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

r o. S. GOVERNMENT PRINTING OFFICE; 1977 244477 52

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