Amicus Curiae Brief — Alabama v. Bozeman

; | Supeome Court, US.

Aw ot ae (5) : FILED

No. 00-492 JAM 25 2001

Supreme Court of the United States

¢

STATE OF ALABAMA,

Petitioner,

MICHAEL HERMAN BOZEMAN,

Respondent.

4

On Writ Of Certiorari To The

Supreme Court Of Alabama

¢

BRIEF OF THE NATIONAL ASSOCIATION OF

EXTRADITION OFFICIALS AS AMICUS CURIAE

IN SUPPORT OF THE STATE OF ALABAMA

+

Mary E. Huntey*

\ Assistant Attorney General

State of Louisiana

Regional Vice President

National Association of

Extradition Officials

ALEXANDER TAYLOR

Assistant Attorney General

State of Virginia

Regional Vice President

National Association of

Extradition Officials

National Association of

' Extradition Officials

318 Barnwood Bay

Salt Lake City, Utah 84121

(801) 942-2575

*Counsel of Record

aT PP

QUESTION PRESENTED

Does the transfer of a prisoner from federal custody

to state custody for a brief period of time for purposes of

a pretrial matter, and prompt transfer back to federal

custody before the disposition of outstanding charges,

require a dismissal of pending charges under the Inter-

state Agreement on Detainers Act (IADA) even when no

prejudice or harm to the prisoner is either alleged or

demonstrated? \

li

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......... iow sbeeweeieanen i

SARs GH AUTRE R 0 occ css gncsedecssoanasens iii

ENE eees OC Tia ANIOUS cece cs cssscatsecnsenee 1

SUMMARY OF ARGUMENT. ..............cseeceee 2

Pere eee ee eT Trip rer ee Ty ee 7

I. The IADA Should Not Be Applied In A Way That

Contradicts Its Stated Goal .................... 4

A. The Purposes Of The Interstate Agreement

On Detainers Act (“IADA”) And Its “Speedy

Pees ROUUIIIOD o.osn ka dntduns. is sheers aes 4

Goal Of The “Anti-Shuffling” Provision.... 6

C. Brief Transfers That May Be Technical Viola-

tions Of The “Anti-Shuffling” Provision Are

Still Wholly Consistent With The Purposes

And Goals oe Ss eer ets Ter ore 6

D. Two Approaches To The Interpretation Of

SOR RRMA 6s daw gbsksdapeesud ieee eanene xian 9

E. A Balancing Test Employed On An Ad Hoc

Basis Rather Than A Rigid Semantic

Approach Better Serves The Purposes Of The

VR <h< 0 vic adwesens been Geahe bene eekenees 10

II. Defendant’s Actions In Failing To Object To His

Return To Federal Custody Without Trial Effec-

tively Waived His Right To Object To Any Viola-

SRL GI Fah SRR v's sv dwn Vay hh dn ees 17

GeO Sais Si'sn vandves skews iawucevens camiaen 21

iii

TABLE OF AUTHORITIES

Page

Cases

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33

OS GB Be See ai, 12, 33, 35

Brown v. Mitchell, 598 F.2d 835 (4th Cir. 1979)........ 6

Carchman v. Nash, 473 US. 716, 105 S.Ct. 3401

NE ecu k 4 ee Bae 8 his Pe ree eee 4

Cooney v. Fulcomer, 886 F.2d 41 (3rd Cir. 1989)........ 6

Crooks v. Harrelson, 282 U.S. 55, 51 S.Ct. 49, 75

ES an ne eer eee eee 17

Gray v. Benson, 458 F.Supp. 1209 (Kan. 1978), aff'd,

Sue wae Sho C10tN Car, 1979). ow... cece ness 14, 15, 20

In re Adamo, 619 F.2d 216 (2nd Cir. 1980), cert.

denied, 449 U.S. 834, 101 S.Ct. 125, 66 L.Ed.2d 52

a ee yeaah hak sia wh oot eke 44 Os 10

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82

I a ere 15

Malone v. United States, 482 A.2d 768 (D.C. App.

SG iXi%s po SES Ay eee rr rn nr eee 8

Price v. State, 237 Ga. 352, 227 S.E. 2d 368 (1976) ..... 8

Sassoon v. Stynchombe, 654 F.2d 371 (Sth Cir.

es ee key ke U Kk soe 0a ke 10, 13, 16

Schneckloth v. Bustamente, 412 U.S. 218, 93 S.Ct.

oe eG ET Ee og. | Sn 19

State ex rel. Fetters v. Holt, 318 S.E.2d 446 (W.Va.

EE Eee ieee Saran pa Posen eA eee rae 7

State v. Fuller, 500 N.W.2d 97 (Minn. Ase. 1997) ...4, 7

State v. Leisure, 838 S.W.2d 49 (Mo. App. 1992)....... 4

iv

TABLE OF AUTHORITIES —- Continued

State v. Sassoon, 242 S.E.2d 121 (Ala. 1978) ........... 8

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

cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59

SRE PE TOO ONs onan ca cdscagse bh ccacsesaeeekaane 4

United States v. Chico, 558 F.2d 1047 (2nd Cir. 1977) ...4, 8

United States v. Daniels, 3 F.3d 25 (1st Cir. 1993)....4, 7

United States v. Ford, 550 F.2d 732 (2nd Cir.

POPPA hs ind vn ciwdiceuceds eumees code nseeceeues 15, 19

United States v. Hall, 974 F.2d 1201 (9th Cir. 1992)..... 4

United States v. Johnson, 953 F.2d 1167 (9th Cir.

1992), cert. denied, 506 U.S. 879, 113 S.Ct. 226,

SEE Te le Ca dick hs eka ceca eee 8, 10, 13

United States v. Lawson, 736 F.2d 835 (2nd Cir.

SUNS 6-0 aS Uk sda ha wale Raed x Fea ets aaa 4

United States v. Mauro, 436 U.S. 340 (1978) ........ > a

United States v. Palmer, 574 F.2d 164 (3rd Cir. 1978),

cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57

mf Bes Bs, Ser rr errr Terre Teor re as.

United States v. Perdue Farms, Inc., 680 F.2d 277

Se EE 6 ed ACA Te ahaa eee Cae Reha aes 16

United States v. Roy, 830 F.2d 628 (7th Cir. 1987),

cert. denied, 484 U.S. 1068, 108 S.Ct. 1033, 98

mf Eg. | ee eee err eee pre 8, 10, 13

United States v. Roy, 597 F.Supp. 1210 (Conn. 1984),

gf Segc ee Re Ge eS | eee 13

United States v. Schrum, 638 F.2d 214 (10th Cir.

1981), aff'g 504 FSupp. 23 (Kan. 1980) ............. 9

United States v. Taylor, 861 F.2d 316 (1st Cir. 1988) ...8, 13

Vv

TABLE OF AUTHORITIES - Continued

Page

United States v. Taylor, 947 F.2d 1002 (1st Cir. 1991),

cert. denied, 504 U.S. 991, 112 S.Ct. 2982, 119

cee ee Ca has oes aw eenesckecuckuans 4, 8, 10

United States v. Thompson, 562 F.2d 232 (3rd Cir.

1977) (en banc), cert. denied, 436 U.S. 949, 98

SA BER, SO COB FHS CUBS ik skin ii hecics.. u

United States v. Wells, 519 U.S. 482, 117 S.Ct. 921,

Sey Se er es FA cub Rk ede Rae cinta byscess 18

United States v. Williams, 615 F.2d 585 (3rd Cir.

SA ad Boe u ce chac Mi etek te Chae eee Sate cae heise ks 6

United States v. Witkovich, 353 U.S. 194, 77 S.Ct. 779

SS Es Sale eRe LOR. ich ee ann see ahaa s «Gls 17

‘Viacom International, Inc. v. F.C.C., 672 F.2d 1034

Be le a ee rer rr err ert eee eee 11

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53

L.Ed.2d 594 (1977), reh. denied, 434 U.S. 880, 98

A A Oe Sd er ee 19

Yellen v. Cooper, 828 F.2d 1471 (10th Cir. 1987)....... 11

STATUTES

Ala. Code §§ 15-9-80-88 (1975).........ceeeeeeeeeeees 4

INTEREST OF THE AMICUS!

Your amicus, National Association of Extradition

Officials, is a network of cooperating states formed over —

thirty-six years ago to provide an organization to pro-

mote the consistent application of the Uniform Criminal

Extradition Act and other rendition statutes including the

IADA. The Association’s membership includes all fifty

states, District of Columbia, Puerto Rico and Virgin

Islands.

The Association urges the Court to reverse the deci-

sion of the Alabama Supreme Court which held that the

State of Alabama violated the “anti-shuffling” provision

of Article IV(e) of the IADA. This case presents an impor-

tant question affecting the Association’s interest in suc-

cessfully accomplishing the transfer of prisoners for the

purpose of disposal of outstanding charges which com-

ports with the spirit and purpose of the IADA.

This concern is of particular moment where, as here,

a prisoner is transferred for a brief time and promptly

returned to the sending state without trial. The law

should not be read so literally as to allow this type of

procedural defect to provide the basis-for the dismissal of

outstanding charges.

The purpose of the IADA is to encourage the expe-

ditious and orderly disposition of outstanding criminal

1 The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in

part. No person or entity, other than the Amicus Curiae, its

members, or its counsel made a monetary contribution to the

preparation and submission of this brief.

charges in order to minimize the interruption of a pris-

oner’s rehabilitation programs. The analysis employed by

the Alabama Supreme Court, if accepted, would dras-

tically undercut the spirit of this Act. Furthermore, none

of the actions taken by the State of Alabama can be said

to have been contrary to the purpose of the Act. The

Association, therefore, urges the Court to reverse the

judgment below to insure the integrity of the rendition

process.

SUMMARY OF THE ARGUMENT

While the brief transfer of a prisoner that does not

result in a trial may constitute a technical violation of the

Interstate Agreement on Detainer Act, such a transfer

should not form the basis of a dismissal of outstanding

charges. \

The purpose of the IADA is to encourage the expe-

ditious and orderly disposition of outstanding criminal

charges. One important reason for this purpose is to

minimize the interruption of a prisoner’s rehabilitation

programs occasioned by repeated transfers.

In addressing the issue of this type of transfer two

federal circuits (Third and Tenth) have taken a literal

approach to the “anti-shuffling” provisions of the Act.

This was the approach adopted by the Alabama Supreme

Court in this case in finding that a dismissal was war-

ranted. On the other hand, the balance of the circuits that

have addressed this issue (First, Second, Fifth, Seventh,

and Ninth) have looked to the purpose of the law and

have determined a dismissal is not appropriate where no

prejudice is shown to the prisoner’s rehabilitation.

A balancing test that examines certain central con-

cerns such as the duration of the transfer and any preju-

dice such a transfer may have had on the prisoner’s

rehabilitation better serves the purpose of the Act.

Furthermore, both the nature of the right asserted

(statutory) and the nature of the remedy (a remedy

harsher than even that provided for violations of certain

constitutional rights) underscore the need for a balancing

test as opposed to a per se rule.

By taking such a literal appreach to the Act, the

Alabama Supreme Court did not consider the effect this

type of transfer had on the prisoner’s rehabilitation. A

main reason for the Act is thereby frustrated by such a

decision.

Furthermore, it is the position of your amicus that

based on Bozeman’s obvious familiarity with his rights

under the IADA, by failing to object to his return to

federal custody without trial effectively waived his right

to object to any violation of the IADA.

,

v

ARGUMENT

I. The IADA Should Not Be Applied In A Way That

Contradicts Its Stated Goal.

A. The Purposes Of The Interstate Agreement On

Detainers Act (“IADA”) And Its “Speedy Trial”

Provisions.

The goal of the IADA is to encourage the expeditious

and orderly disposition of outstanding criminal charges

and determination of the proper status of any and all

detainers based on untried indictments, information, and

complaints. The purpose underlying this goal is that

detainers based on such untried charges obstruct pro-

grams of prisoner treatment and rehabilitation. United

States v. Hall, 974 F.2d 1201 (9th Cir. 1992); Carchman v.

Nash, 473 U.S. 716, 720, 105 S.Ct. 3401, 3403 (1985); State v.

Fuller, 560 N.W.2d 97 (Minn. App. 1997); State v. Leisure,

838 S.W.2d 49 (Mo. App. 1992). In fact, some courts state

that the main purpose of the Act is to prevent interrup-

tion of prisoner rehabilitative efforts. United States v. Dan-

iels, 3 F.3d 25, 27 (1st Cir. 1993); United States v. Taylor, 947

F.2d 1002, 1003 (1st Cir. 1991). A second purpose of the

Act is the elimination of possible adverse psychological

effects upon a sentenced prisoner created by the presence

of long-standing detainers in his prison file. See, e.g.

United States v. Lawson, 736 F.2d 835, 839 (2nd Cir. 1984);

Stroble v. Anderson, 587 F.2d 830, 835-36 (6th Cir. 1978),

cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499

(1979); United States v. Chico, 558 F.2d 1047, 1048-49 (2nd

Cir. 1977). This Act is codified in Alabama in Sections

15-9-80 through 15-9-88 of the 1975 Code of Alabama.

(Appendix to Petition for Certiorari at 32-47).

Article III and Article IV are the provisions of the

IADA used to effectuate the goal of this Act. United States

v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 1842 (1978).

Article III provides the procedure used by prisoners, who

have detainers filed against them, to demand a speedy

disposition of the charges giving rise to the detainers. If

the prisoner demands a speedy trial pursuant to the

guidelines of Article III, the jurisdiction which filed the

detainers is required to bring him to trial within 180 days.

Article IV, on the other hand, provides the procedure

used by prosecutors who have lodged a detainer against

a prisoner in another jurisdiction. This Article allows

such a prosecutor to secure temporary custody over a

prisoner for disposition of outstanding charges against

the prisoner. Article IV(c) requires trial to commence

within 120 days of the prisoner’s arrival in the requesting

jurisdiction unless a continuance is granted or good cause

is shown in open court with the prisoner or his counsel

present.

Article III(d) and Article IV(e) both contain “anti-

shuffling” provisions which are essentially identical and

provide:

“If a 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, infor-

mation, or complaint shall not be of any further force or

effect, and the court shall enter an order dismissing the

same with prejudice.”

B. The Goal Of The “Anti-Shuffling” Provision.

The goal of the Anti-Shuffling provision, Article

IV(e), “is to insure prompt disposition of detainers.”

Brown v. Mitchell, 598 F.2d 835, 837 (4th Cir. 1979), cert.

denied, 449 U.S. 1123, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981).

This provision “furthers the goal of the IADA which is to

prevent transfer back and forth between competing juris-

dictions, its theory being that such transfers undermine

the right to speedy trial and the rehabilitative process of

the system in which the prisoner is currently serving a

sentence.” Cooney v. Fulcomer, 886 F.2d 41, 44 (3rd Cir.

1989). (Citing United States v. Williams, 615 F.2d 585, 588

(3rd Cir. 1980)).

C. Brief Transfers That May Be Technical Viola-

tions Of The “Anti-Shuffling” Provisions Are

Still Wholly Consistent With The Purposes And

Goals Of The Interstate Agreement On

Detainers Act.

Bozeman was transferred very briefly on January 23,

1997, from federal custody in Marianna, Florida, to

Covington, Alabama, for arraignment on January 24,

1997, on state charges. He was returned to federal prison

the very next day (Appendix to Petition for Certiorari at

28). Although his state charges were not disposed of on

January 24, 1997, there is neither evidence nor any allega-

tion that this brief transfer had an impact on his reha-

bilitation programs at the federal prison. As the circuit

court judge in this case said:

“It made much sense to bring him into the

county briefly to see to those matters and

thereupon return him to the surroundings to

which he was accustomed. That course appears

to have been conservative of the defendant's

interest in maintaining any course of rehabilita-

tion available to him in federal prison. He cer-

tainly would not receive much rehabilitation in

county jail [as a pre-trial detainee].” (Appendix

to Petition for Certiorari at 28.)

Even though brief transfers technically constitute

“anti-shuffling” violations, they can, nevertheless, have

little or no impact on rehabilitative programs and still

permit the prisoner to have his case disposed of within

the IADA “speedy trial provisions.” For example, in the

case at bar, the Covington prosecutor’s office secured the

custody of Bozeman for a second time, pursuant to Arti-

cle IV, one month after his arraignment. He was convicted

on all five counts of the indictment the next day, February

28, 1997. (Petition for Certiorari 7 citing C.120-21; R.

192-93) He was sentenced on May 21, 1997. (Petition for

Certiorari 8 citing C.108-109) Bozeman’s charges were

clearly disposed of within the 120 day “speedy trial”

provision of Article IV(c). In similar situations, other

courts have ruled that a dismissal was not required where

the “anti-shuffling” provision was technically violated

when the prisoner was returned a second time to the state

for trial within the IADA “speedy trial” deadline. State ex

rel. Fetters v. Hott, 318 S.E.2d 446, 448-449 (W.Va. 1984);

See also State v. Fuller, 560 N.W.2d 97 (Minn. App. 1997).

Brief transfers, such as the one in this case, may

actually further the Act’s purpose of not having a pris-

oner’s rehabilitation programs interrupted for unreason-

able periods of time. See e.g. United States v. Daniels, supra,

3 F.3d at 27-28 (The First Circuit, at page 28, footnote 3,

states that it could “hardly think of a greater disruption

in rehabilitative services” than when a prisoner has to

remain in the custody of a requesting state from the date

of his arraignment until the date his case is finally dis-

posed of.) See also United States v. Taylor, 947 F.2d 1002,

1003 (1st Cir. 1992), cert. denied, 504 U.S. 991, 112 S.Ct.

2982 (1992) (Brief transfer allowed for speedy arraign-

ment). Although dismissal is the remedy provided in the

“anti-shuffling” provisions, the majority of federal courts

that have addressed the issue of brief transfers such as

these have held that dismissal is not mandatory where

the transfer did not affect the prisoner’s rehabilitation.

United States v. Johnson, 953 F.2d 1167, 1171 (9th Cir. 1992);

United States v. Taylor, 861 F.2d 316, 319 (1st Cir. 1988);

Malone v. United States, 482 A.2d 768 (D.C. App. 1984); See

also United States v. Roy, 830 F.2d 628, 636 (7th Cir. 1987)

and State v. Sassoon, 242 S.E.2d 121, 123 (Ala. 1978) (citing

United States v. Chico, supra, 558 F.2d at 1049).

The “anti-shuffling” provisions were not intended to

be used as a sword by prisoners for the purpose of

dismissing potentially serious crimes based solely on

technical violations. Yet this appears to be the only pur-

pose served by dismissing charges where the violation

covered a brief time period having little, or no, impact on

the prisoner’s rehabilitation programs. Justice Hill, con-

curring in Price v. State, 237 Ga. 352, 357, 227 S.E.2d 368,

370 (1976) anticipated that intelligent prisoners (referring

to them as “interstate bandits”) could use the IADA to

have their charges dismissed in different jurisdictions

instead of seeking to expedite their trials pursuant to the

same Act. See also State v. Sassoon, supra, 242 S.E.2d at 123.

The present appeal presents a very similar case. Bozeman

was not interested in having a quick arraignment and

Cet de ee, nly

trial in Covington County so that he could return to his

rehabilitation programs in federal prison. He was clearly

only interested in getting his state charges dismissed.

This is evidenced by his failure either to request that he

remain in Covington County until his trial or object to the

notice of arraignment as opposed to trial. Instead, he filed

a motion to dismiss these charges on the very same day

he returned to federal custody on January 24, 1997.

(Appendix to Petition for Certiorari at 28) The IADA was

never intended to be used in this manner. Allowing pris-

oners to do so only thwarts the purpose of the Act.

D. Two Approaches To The Interpretation Of The

IADA

The issue of whether or not a brief transfer under the

IADA without a trial is consistent with the purposes of

the Act or is a sufficient violation of the Act to warrant

dismissal of the outstanding charges has been addressed

in different ways by the various federal circuits. A “split”

exists among these circuits.

The Third and Tenth Circuits have read the Act liter-

ally and found it to require a dismissal under such cir-

cumstances. See, e.g. United States v. Thompson, 562 F.2d

232, 234 (3rd Cir. 1977) (en banc), cert. denied, 436 U.S. 949,

98 S.Ct. 2858, 56 L.Ed.2d 793 (1978); United States v.

Schrum, 638 F.2d 214 (10th Cir. 1981), aff’g, 504 F.Supp. 23

(Kan. 1980).

On the other hand, the majority of circuits (First,

Second, Fifth, Seventh and Ninth Circuits) have chosen to

examine the particular circumstances in light of the pur-

pose of the law and have consistently held no dismissal is

10

warranted. See, e.g. United States v. Taylor, 947 F.2d 1002

(1st Cir. 1991), cert. denied, 504 U.S. 991, 112 S.Ct. 2982,

1191 L.Ed.2d 599 (1992); United States v. Roy, 771 F.2d 54

(2nd Cir. 1985), aff'g, 597 F.Supp. 1210 (Conn. 1984); Sas-

soon v. Stynchombe, 654 F.2d 371 (5th Cir. 1981); United

States v. Roy, 830 F.2d 628 (7th Cir. 1987) and United States

v. Johnson, 953 F.2d 1167 (9th Cir. 1992), cert. denied, 504

U.S. 809, 113 S.Ct. 226, 121 L.Ed.2d 163 (1992).

Your amicus believes that the latter approach, which

looks to the spirit and purpose of the Act rather than

interpreting the Act so narrowly as to defeat that pur-

pose, is correct. Unfortunately, none of the courts

employing this approach has articulated any test by

which each case can be judged. As a result, these deci-

sions offer little predictive value.

Within this framework, your amicus would urge that

this Court disclaim establishing a per se rule but instead

establish a balancing test to be employed on an ad hoc

basis to determine whether the harsh remedy of dismissal

is warranted under these circumstances.

E. A Balancing Test Employed On An Ad Hoc

Basis Rather Than A Rigid Semantic Approach

Better Serves The Purposes Of The Interstate

Agreement On Detainers Act.

It is a well-established principle of statutory con-

struction that a statute should not be applied strictly in

accordance with its literal meaning where to do so would

pervert its manifest purpose. In re Adamo, 619 F.2d 216, —

221-222 (2nd Cir 1980), cert. denied, 449 U.S. 834, 101 S.Ct.

125, 66 L.Ed.2d 52 (1980).

11

While your amicus recognizes that courts should

seek to apply the law as drafted, it is also true that the

“surest way to misinterpret a statute or a rule is to follow

its literal language without reference to its purpose,” or

without regard to a result that would be unreasonable or

absurd. Viacom International, Inc. v. F.C.C., 672 F.2d 1034,

1040 (2nd Cir. 1982).

Although the literal meaning of the words chosen by

the drafters should be respected, we urge this Court not

to follow a rigid semantic approach to statutory construc-

tion which would override common sense and evident

statutory purpose.

The IADA has been described variously as a “set of

procedural rules which do not involve fundamental con-

stitutional rights.” United States v. Palmer, 574 F.2d 164,

167 (3rd Cir. 1978), cert. denied, 437 U.S. 907, 98 S.Ct. 3097,

57 L.Ed.2d 1138 (1978) and that the “protections created

by the IADA are statutory rights which are not founded

upon constitutional rights.” Yellen v. Cooper, 828 F.2d

1471, 1474 (10th Cir. 1987).

Admittedly, the application of a constitutional stan-

dard is inappropriate when the violation of a statutory

right is at issue. Nevertheless, this Court’s decision

related to the right to a speedy trial in Barker v. Wingo, 407

U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is instruc-

tive. Barker addressed certain central concerns that per-

suaded this Court that a balancing test to be applied on

an ad hoc basis best served those concerns. In so holding,

this Court rejected two suggested approaches which the

court described as “rigid”. Your amicus suggests to the

Court that the same central concerns exist in this case and

12

therefore we urge this Court to choose the same alterna-

tive in this case.

In Barker, this Court cited such basic concerns

involved in the speedy disposal of charges as the neces-

sity that all defendants be treated according to “decent

and fair procedures,” that the backlog of cases has lead to

manipulation of the system by defendants, the cost of

lengthy pretrial detention and, most importantly for our

purposes, the delay between arrest and punishment may

have a detrimental effect on rehabilitation. Barker v.

Wingo, supra, 407 U.S. at 519-520, 92 S.Ct. at 2186-87.

In deciding that a balancing test was appropriate,

this Court also took into consideration the harshness of

the remedy. Like the IADA, violation of the Sixth Amend-

ment speedy trial provision requires dismissal. In this

context, the Barker Court observed “[t]his is indeed a

serious consequence because it means that a defendant

who may be guilty of a serious crime will go free without

having been tried”. See also N.16, Barker v. Wingo, supra,

407 U.S. at 522, 92 S.Ct. at 2188.

Ultimately, the court specifically rejected the “inflex-

ible approaches” and accepted a balancing test, in which

the conduct of both the prosecution and the defendant

are weighed. In the court’s view, such a test “necessarily

compels courts to approach speedy trial cases on an ad

hoc basis.” The Court then identified four factors to be

assessed when a court determines if a Sixth Amendment

violation took place: length of delay, the reason for the

delay, defendant’s assertion of his right, and prejudice to

the defendant. Barker v. Wingo, supra, 407 U.S. at 530, 92

S.Ct. at 2192.

13

Your amicus urges this Court to follow the reasoning

in Barker and apply a balancing test in this case. Although

none of the circuit courts that examined this issue on an

ad hoc basis followed a specific balancing test, these

courts have consistently concentrated on certain factors

which could provide some guidance in the formulation of

such a test.

Where there is a delay because of the kind of transfer

that occurred herein, circuits have balanced the length of

the interruption against any prejudice to the prisoner that

may have resulted. Sassoon v. Stynchombe, supra, 654 F.2d

at, 374 (5th Cir. 1981) (refusing to apply Article IV(e)

‘mechanically because the inmate’s interest in pursuing

his rehabilitative education in the sending jurisdiction

was not prejudiced . . . a brief removal and prompt return

prior to trial is consonant with the intention of the

IADA); United States v. Taylor, 861 F.2d 316 (1st Cir. 1988)

(IADA not violated when prisoner returned without a

trial because he suffered only a one day interruption that

did not prejudice him); United States v. Johnson, supra, 953

F.2d at 1170 (9th Cir. 1992), cert. denied, 506 U.S. 879, 113

S.Ct. 226, 121 L.Ed.2d 163 (1992) (brief transfers permiss-

ible where there was no evidence that they interfered

with the prisoner’s interest or participation in rehabilita-

tion program or where he was denied, threatened with

the denial of, or feared losing any privileges because of

the pending charges); United States v. Roy, 597 F.Supp.

1210 (Conn. 1984); aff'd by United States v. Roy, 771 F.2d 54

(2nd Cir. 1985) (no evidence that prisoner’s brief transfer

obstructed his rehabilitation . . . no indication that he

suffered any adverse psychological effects as a result of

his brief stay); United States v. Roy, supra, 830 F.2d at 636

14

(7th Cir. 1987) (no violation of anti-shuffling provisions of

Article IV of the IADA where there was no real interrup-

tion of prisoner’s state imprisonment resulting from an

overnight stay at another facility). It should be noted that,

although prejudice is not a dispositive factor in determin-

ing whether an indictment should be dismissed due to a

violation of Article IV(e), no policy of the IADA would be

advanced by finding a dismissal proper where no preju-

dice whatsoever existed.

For several reasons, your amicus urges this Court to

reject the restrictive interpretation of the IADA taken by

the Third and Tenth Circuits and the Alabama Supreme

Court in this case. First, the issue does not involve a

fundamental right or a constitutional rule. Rather, this is

a rule governing a statutory, nonfundamental right. This

is an important consideration in light of the harshness of

the remedy.

Clearly Article IV(e) of the IADA amounts

to nothing more than a procedural rule, and the

right it protects in no way affects the fairness

and accuracy of the fact-finding procedure. Nor

does it preserve or affect other due process or

trial rights. Rather, it involves an unrelated right

to rehabilitation without interruption in connec-

tion with incarceration on a prior sentence.

Thus, a claim under IV(e) can hardly be con-

strued as jurisdictional . . . The fact that Con-

gress has provided a stringent remedy for

violation of the rule does not alter the pro-

cedural nature or nonfundamental basis of the

rule itself.

Gray © "enson, 458 F.Supp. 1209, 1213 (Kan. 1978), aff'd,

608 F.2¢ 325 (10th Cir. 1979) (citations omitted).

15

The remedy prescribed by the IADA is more severe

than that provided even for violations of certain constitu-

tional rights. See Barker v. Wingo, supra, 407 U.S. at 522, 92

S.Ct. at 2188). Both the nature of the right (statutory) and

the nature of the remedy (dismissal) underscore the need

for a balancing test as opposed to a per se rule.

Another factor is the reason for the transfer. The

inquiry is whether the transfer was initiated by the pris-

oner or the prosecution. See e.g. United States v. Ford, 550

F.2d 732 (2nd Cir. 1977), aff'd sub nom. United States v.

Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978)

(rights under the Act are waived by a prisoner’s request

for transfer).

The right protected by Article IV(e) is that of a pris-

oner to have his rehabilitation free of the interruptions

occasioned by repeated transfers. United States v. Ford,

supra, 550 F.2d at 742 (2nd Cir. 1977), aff'd United States v.

Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

This right of a prisoner to uninterrupted rehabilitation is

purely statutory. It is unlike a fundamental constitutional

right which can be waived only under the strict waiver

standard set out in Johnson v. Zerbst. See Gray v. Benson,

458 F.Supp. 1209 (Kan. 1978), aff'd, 608 F.2d 825 (10th Cir.

1979) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019,

82 L.Ed.2d 1461 (1938).)

Under the facts in this case, the literal application of

the dismissal provision required that the Act’s intended

purpose be disregarded. The violation of the IADA was a

trifling and insignificant one, in the nature of a pro-

cedural defect. To release Bozeman by a mechanical

application of the statute would constitute an inequity

16

and “a result that Congress manifestly would not have

wanted if the prospect of such application had been con-

sidered.” United States v. Perdue Farms, Inc., 680 F.2d 277,

286 (2nd Cir. 1982) (Newman, J., concurring).

Your amicus urges this Court to accept the more

expansive interpretation of the statute taken by the

majority of circuits. First, no purpose of the drafters in

enacting the IADA was thwarted by the conduct of the

Alabama authorities. Bozeman made no claim that his

overnight detention in the Covington County jail preju-

diced any rehabilitation or education programs he was

undergoing at the federal facility in Florida. Furthermore,

there has been no indication that Bozeman suffered any

adverse psychological effects as a result of his brief stay

in Covington County on January 23-24, 1997. In fact, his

brief detention in state custody followed by his prompt

return to federal custody worked to his benefit rather

than to his detriment. See Sassoon v. Stynchombe, supra, 654

F.2d at 374 (5th Cir. 1981) (release under Article IV(e) of

the IADA “not justified where no legitimate interest of

the prisoner is defeated by the violation . . . [n]o protec-

tion is necessary where no injury is threatened”). In other

words, had Bozeman been kept in state custody from

arraignment through sentencing, the interference with

any rehabilitative programs he may have been undergo-

ing would have been worse. Being “shuffled” back to

federal prison actually promoted the purpose of the

IADA. Additionally, all pending state charges were pro-

cessed against him in an expeditious and orderly manner

and all within the 120 day period required under the

IADA.

17

The instant case presents an attempted misuse of the

Act. Bozeman is seeking to use the provisions of the

IADA not for the purpose of protecting any legitimate

interest he may feel is at stake but rather to simply secure

his release from the sentence imposed by the State of

Alabama.

Under these circumstances, justice and good sense

compel an interpretation of the IADA which conforms to

the intention and spirit of the Act even if it is not within

the letter of the enactment. See United States v. Witkovich,

353 U.S. 194, 199, 77 S.Ct. 779, 782, 1 L.Ed.2d 765 (1957)

(the “tyranny of literalness” should be avoided); Crooks v.

Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156

(1930) (departure from plain language of a statute justi-

fied if adherence results in an absurdity which shocks

“the general moral or common sense”).

This conclusion is buttressed by Article IV of the

IADA, which states in part, “[t]his agreement shall be

liberally construed so as to effectuate its purposes.”

This Court should recognize that a brief interruption

of confinement that neither poses a threat to a prisoner’s

rehabilitation nor denies him any privileges is insufficient

to require a dismissal of outstanding charges under Arti-

cle IV(e) of the IADA.

II. Defendant's Actions In Failing To Object To His

Return To Federal Custody Without Trial Effec-

tively Waived His Right To Object To Any Viola-

tion Of The IADA.

Bozeman was transferred to Alabama on January 23,

1997, and arraigned the next day, January 24, 1997. From

18

the transcript of that hearing it is clear that those

involved understood that Bozeman was to be returned to

Florida after the arraignment. Bozeman was informed by

the court that he was there for purposes of arraignment

(R. January 24, 1997 Arraignment 5); that the court would

allow him to complete the appointment of counsel form

“before you leave” (R. January 24, 1997 Arraignment 11);

and the court directed him to make sure he had the

means to stay in communication with his attorney.

Defense counsel then informed the court that he had

Bozeman’s address (R. January 24, 1997 Arraignment 12).

Also at that time, defense counsel notified the court of

possible violations of the IADA which he had to investi-

gate (R. January 24, 1997 Arraignment 4). He was then

transferred back to federal custody that same day. Even

though Bozeman had counsel appointed to him at his

arraignment, he filed an obviously already prepared pro

se Motion to Dismiss his outstanding Alabama charges on

the basis of a violation of Article IV(e) of the IADA on

January 24, 1997 as well. (Petition for Certiorari 6 citing

C.8-10)

Your amicus urges this Court to find that by failing to

object to his transfer back to federal prison without a trial

Bozeman impliedly consented to this transfer and thereby

waived this violation or, in the alternative, is estopped,

_under the theory of “invited error”, from asserting this

right under the IADA. “A party may not complain on

appeal of errors that he himself invited or provoked the

[district] court . . . to commit.” United States v. Wells, 519

U.S. 482, 486, 117 S.Ct. 921, 925, 137 L.Ed.2d 107 (1997)

(citations omitted).

19

Bozeman is obviously someone very familiar with the

protections offered by the IADA and understood his

rights thereunder. Based on his actions, it appears that

Bozeman had full knowledge of the IADA at the time he

filed his pro se Motion to Dismiss. The fact that he knew

to file his pro se Motion to Dismiss on the very day he

was returned to federal custody indicates how well-

versed he really was. Under these circumstances, there

can be no real dispute that Bozeman knew his rights

under the IADA. A knowing and intelligent waiver of the

anti-shuffling provision therefore can be inferred from his

failure to object to his transfer.

Moreover, because this is a statutory right, the

waiver standard is not as Strict as that for waiver of

certain fundamental or constitutional rights. The concept

of a knowing and intelligent waiver only applies to basic

constitutional rights safeguarding a criminal defendant's

right to a fair trial. This high standard for waiver does

not apply in situations involving other constitutional or

statutory rights. Schneckloth v. Bustamonte, 412 U.S. 218,

237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973)

The basis of the statutory right at stake is to promote

the rehabilitation of a prisoner that is free of the interrup-

tions resulting from repeated transfers. United States v.

Ford, supra, 550 F.2d at 742. This type of right is consid-

ered procedural or nonfundamental and in no way affects

the fairness and accuracy of the fact-finding process.

Balanced against this right is the substantial public inter-

est in the finality of criminal convictions. Wainwright v.

Sykes, 433 U.S. 72, 90, 97, S.Ct. 2497, 53 L.Ed.2d 594 (1977),

reh. denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163

(1977).

20

Based on his obvious familiarity with his rights

under the IADA and considering the nature of the right

at stake, your amicus asserts that Bozeman essentially

consented to his transfer back to federal authorities when

he raised no objection to the nature of the transfer. This

“consent” was in the nature of a waiver of the violation

or as an estoppel which prevents him from asserting the

right. Either of these would prevent him from succeeding

in this case.

The procedural defect in this case had no effect what-

soever on the fundamental fairness of the proceedings

against him. Neither has Bozeman demonstrated any

prejudice to his rehabilitation as a result of the challenged

transfer.The public’s substantial interest in the preserva-

tion of convictions outweighs a prisoner’s interest in the

statutory remedy for a violation of Article IV(e). See Gray

v. Benson, supra, 458 F.Supp. at 1215.

«

21

CONCLUSION

This Court should reverse the decision of the Ala-

bama Supreme Court.

Respectfully submitted,

Mary E. Huntey*

Assistant Attorney General

State of Louisiana

Regional Vice President

National Association of

Extradition Officials

ALEXANDER TAYLOR

Assistant Attorney General

State of Virginia

Regional Vice President

National Association of

Extradition Officials

National Association of

Extradition Officials

318 Barnwood Bay

Salt Lake City, Utah 84121

(801) 942-2575

*Counsel of Record