The opinion of the court was delivered by: OBERDORFER
Defendant has moved to dismiss the indictment filed on May 19, 1983, charging that he escaped from custody of the Attorney General in violation of 18 U.S.C. § 751(a), on the ground that the indictment was not filed within thirty days of his arrest, thereby violating his rights under the Speedy Trial Act, 18 U.S.C. § 3161(b) (1976). An evidentiary hearing was held on June 15, 1983, at which the only witness was a United States marshal whose duties include processing warrants for escaped federal prisoners in the District of Columbia and who was familiar with defendant's case. The material facts are not in dispute. Defendant presents an interesting question of statutory construction which, although not free from doubt, must be resolved against him. Accordingly, an accompanying Order denies the Motion to Dismiss and sets a further status call in this matter for July 8, 1983, at 9:30 a.m.
On December 13, 1979, defendant was sentenced by the District of Columbia Superior Court to serve a 3-9 year term for possession of an unlicensed pistol by a felon. He began to serve this sentence at the Federal Correctional Institution at Ashland, Kentucky, and was subsequently transferred on July 12, 1982, to a federally-operated "halfway house" in the District of Columbia called Hope Village, in anticipation of his pre-release parole hearing scheduled for November, 1982. On August 11, 1982, however, he signed out of Hope Village and allegedly did not return, thereby becoming an escapee from the Attorney General's custody.
On November 30, 1982, defendant was arrested on unrelated local forgery charges and on December 1, 1982, he was committed to the D.C. Jail. On December 23, 1982, the D.C. Jail received a document from the U.S. Marshals Service entitled "DETAINER." The words "Charge -- Escape from Hope Village" were typewritten at the top of the document; otherwise it was a pre-printed form. The form stated that
The notice requirements of the Speedy Trial Act of 1974 (P.L. 93-619) apply if the Detainer is based on pending Federal criminal charges which have not yet been tried. The notice requirement provisions do not apply to Detainers lodged for charges which have already been tried or for which no trial is required, such as parole revocation Detainers or sentencing Detainers. Further, the notice requirement provisions would not apply to Detainers lodged against prisoners who have not yet been sentenced at the time the Detainer is lodged. If there is an "X" mark in the following space, the notice requirements of the Speedy Trial Act apply. . . .
. . . If there are no "X" marks in the above blocks, no further action is required except you are requested to give a copy of the Detainer to the Prisoner and to acknowledge receipt of this Detainer . . . .
Defendant's Ex. 2. No "X" marks appeared in the relevant boxes, and although defendant was provided with a copy of the detainer, he was not advised of any right to request a disposition of the grounds underlying the detainer.
On February 4, 1983, defendant pled guilty in D.C. Superior Court to misdemeanor theft as part of a plea bargain and the forgery charges were dismissed. He was sentenced to 120 days with credit for time served. On March 15, 1983, this 120-day misdemeanor sentence was completed, and on that date defendant was released to the custody of the U.S. Marshals Service. The document that effected this change of custody is defendant's Exhibit 5; the blank on this document for "Resident to be released by reason of:" is filled in with "EXPIRATION TO A DETAINER/USM," and a blank preceded by the words "Placed by" contains the words "USM, ESCAPEE FROM HOPE VILLAGE." Defendant's Ex. 5. "USM" refers to the United States Marshal.
Upon taking custody of defendant, the marshal immediately remanded defendant to the D.C. Jail where defendant had been incarcerated for his 120-day sentence; the document effecting this remand is Government Exhibit 1. That document is incompletely filled out, but contains the handwritten words "Bradley Arthur Hold for Further removal by BOP [Bureau of Prisons] [illegible three-letter word] Escape Fed. Prisoner." Thus, since March 15, 1983, defendant has been solely in federal custody and physically located in the D.C. Jail. On May 12, 1983, an indictment charging defendant with the present charge of escape (18 U.S.C. § 751(a)) was returned; it was filed on May 19, 1983.
At the hearing on defendant's motion to dismiss, United States Marshal Slack, the person charged with responsibility for following up on escaped federal prisoners for the District of Columbia, testified that he probably sent materials concerning defendant's alleged escape to the United States Attorney's office in early May, suggesting that they seek an indictment. He also testified that he had begun the process of assembling the necessary information regarding defendant's alleged escape on March 15, 1983, when the marshals took custody, and that this information had to be obtained from various federal institutions across the country. He further stated that the marshal's office for the District of Columbia had at the time a backlog of escaped federal prisoner cases to process. Marshal Slack conceded that his office had known that defendant was in the D.C. Jail since December 1982, when the detainer was filed, but that it was the Marshal's policy to take no action regarding possible prosecution of such persons until they actually come into federal custody, no matter how long that may be after their whereabouts are known. He stated that he thought this policy should be changed, and that he was currently seeking such a change.
The Statutory Scheme and the Parties' Contentions
The Speedy Trial Act of 1975, 18 U.S.C. §§ 3161-74 (1976 & Supp. V 1981), provides in part that
Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date in which such individual was arrested or served ...