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April 29, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Motions Judge, Hon. Frederick H. Weisberg, Trial Judge.

Ferren, Terry and Steadman, Associate Judges.

The opinion of the court was delivered by: Steadman

Appellant, incarcerated in Maryland, was brought into the District of Columbia to be tried on two counts relating to a robbery with respect to which a detainer had been filed with the Maryland authorities. After his arrival in the District, the two robbery counts were dismissed with prejudice for failure to bring appellant to trial within the 180-day time limit specified in Art. III of the Interstate Agreement on Detainers Act ("IAD"), D.C. Code § 24-701 (1989). However, appellant while here was indicted on five additional counts covering unrelated crimes, and in a conditional plea pled guilty to three of those counts.

The principal issue on this appeal is whether the new counts were also subject to the time limit of Art. III, and thus should also have been dismissed with prejudice under the IAD. We hold that the time limit of Art. III did not apply to the new counts. We further hold that even if, under the provisions of the IAD, appellant should have been returned to Maryland upon the dismissal of the robbery counts and new proceedings begun for his redelivery here for trial on the new counts, no prejudice resulted from the failure to do so, and any violation was therefore harmless.

During April of 1988, appellant was incarcerated in Maryland. On April 8, 1988, a warrant for the arrest of appellant was issued by a Judge of the Superior Court of the District of Columbia, based on a complaint *fn1 and affidavit relating exclusively to the robbery of a United Airlines ticket office in the District. Several days later, the government caused a detainer to be lodged against appellant with the proper authorities in Maryland.

On November 2, 1988, appellant submitted a demand for Disposition of pending charges in the District of Columbia pursuant to Art. III of the IAD. *fn2 On March 14, 1989, the government filed with the Superior Court a "Petition for Writ of habeas corpus Ad Prosequendum," which was issued later that day by a Judge of that court. *fn3 On March 27, pursuant to that writ, appellant arrived in the District of Columbia.

On April 4, a two-count grand jury indictment was filed relating to the United Airlines incident. Trial was originally set for May 9 but postponed, over appellant's objection, so that the government could obtain a superseding indictment, containing both the original United Airlines counts and five additional counts based upon five robberies occurring in the same general time frame as the United Airlines robbery *fn4 but otherwise having no connection with it. On May 15, appellant filed a motion to dismiss the indictment, arguing that the government had failed to bring his case to trial within 180 days of his demand under Art. III. On May 17, the trial court heard appellant's motion seeking dismissal of the United Airlines counts, but the hearing was expanded to consider the question whether the additional counts in the superseding indictment, filed the previous day, had to be dismissed as well.

The trial court dismissed the United Airlines counts *fn5 but refused to dismiss the new counts in the indictment, ruling that the government's detainer and appellant's subsequent Art. III demand related only to the United Airlines counts. With respect to the new counts, the government and the trial court were apparently of the view that the 120-day time limit of Art. IV applied, *fn6 obliging the government to bring appellant to trial by July 25, 1989, that being 120 days after appellant's arrival in the District of Columbia on March 27. Appellant's demand to be returned to Maryland was denied. *fn7

A motion for reconsideration was subsequently denied, and appellant on July 10 pled guilty to three counts of the then pending indictment, *fn8 conditioned on his right to appeal the court's earlier refusal to dismiss the new counts on the ground that they, like the United Airlines counts, were subject to appellant's Art. III speedy trial rights under the IAD.


An examination of the language of the IAD clearly shows that the trial court was correct in refusing to dismiss the new counts as violative of rights of the appellant under Art. III of the IAD.

First, rights under Art. III come into being only when "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." Art. III(a). Thus, even an outstanding indictment in another state generates no Art. III rights in and of itself; the key is the lodging of a detainer based on that untried indictment. United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978).

Second, even where a detainer has been filed against a prisoner, a "request for final Disposition" under Art. III(a) operates, according to its terms, as a request only "for final Disposition of all untried indictments, informations, or complaints on the basis of which detainers have been lodged against the prisoner from the State to whose prosecuting official the request for final Disposition is specifically directed." Art. III(d).

In conformity with these provisions, Art. V(c) provides that "in the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the [180-day] period provided in article III," that indictment, information, or complaint must *fn9 be dismissed with prejudice, "and any detainer based thereon shall cease to be of any force or effect."

Thus, these provisions focus on the problem of detainers. By their terms, they deal only with indictments, informations, or complaints on the basis of which detainers have been filed. They do not otherwise affect situations in which one jurisdiction may seek to obtain custody of a person located in another jurisdiction. For example, in the District of Columbia, writs of ad prosequendum have been and continue to be a traditional way of securing the presence of a person located in another jurisdiction. The Supreme Court has directly held that prisoners who are brought into a jurisdiction pursuant to a federal writ to be tried for crimes with respect to which no detainer is pending have no rights under the IAD. United States v. Mauro, supra, 436 U.S. at 361. *fn10

In the case before us, there can be no substantial dispute that the detainer lodged in Maryland was based only on the United Airlines offense. The detainer itself states, in operative part: "Subject is wanted by this Department on charges of Robbery. The warrant was signed and issued on April 8, 1988." Furthermore, at the time the detainer was lodged, the only "untried indictment, information, or complaint" upon which the detainer could have been based was the complaint on the United Airlines offense, which led to the issuance of the arrest warrant for appellant and in turn the detainer itself lodged in Maryland. *fn11 The coupling of the word "complaint" with "indictment" and "information" is a solid indication that "complaint" refers to a formal document of some type initiating criminal action against an individual, and not inchoate matters with respect to which no court proceedings of any sort have been initiated. In the words of the Supreme Court, addressing the precise language at issue here, "the most natural interpretation of the words 'indictment,' 'information,' and 'complaint' is that they refer to documents charging an individual with having committed a criminal offense." Carchman v. Nash, 473 U.S. 716, 724, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985). *fn12

Appellant argues that notwithstanding the words of the IAD, its provisions should be deemed applicable as well to any matters which may be under investigation in which the prisoner may be implicated, or at least those as to which the government may have an active intent to bring formal charges. *fn13 We fail to see how such an interpretation is warranted under either the language or the intent of the IAD. *fn14 The prisoner cannot by filing an Art. III request force the government to any premature decision whether or not to instigate formal charges against him. The prisoner's rights under the IAD do not extend so far. While it is true that the IAD's provisions are to be "liberally construed," Art. IX, this does not warrant a disregard of the clear language and structure of the IAD. *fn15

Appellant contends that what it terms a similar "hypertechnical" interpretation of the IAD was rejected in State v. Smith, 73 Md. App. 378, 534 A.2d 371 (Md. App. 1987). In that case, the state lodged a detainer based on an arrest warrant against Smith, who was incarcerated in the District, and who, upon receiving notice thereof, requested a final Disposition of the Maryland charges. Smith was indicted in Maryland two hundred and eighteen days after he filed his IAD request. The state argued that the arrest warrant was not an "untried indictment, information or complaint" which could ignite Smith's IAD demand. The court rejected the state's argument, concluding that the state effectively would be rewriting the IAD if it were allowed to "lodge a detainer on the basis of a warrant and then withhold the triggering of the IAD through the simplistic method of not obtaining an indictment or filing a criminal information." Id. at 374.

However, in Smith, it was uncontroverted that the arrest warrant underlying the detainer related to precisely the same charges as those for which the state sought to try the defendant. The only possible way of avoiding the IAD time restraint would have been to hold that the arrest warrant could not form the basis of an IAD detainer. The Maryland court held to the contrary, a result in accord with our decision in Tucker v. United States, supra note 9, 569 A.2d 162 (discussing circumstances where arrest warrant may constitute a detainer). The question we are faced with here is the very different one of the scope of the prisoner's rights under an Art. III request based upon what is unarguably a detainer under the IAD.


A related legal issue presented by the facts in this appeal is the question of the government's right to try appellant on the new counts in the courts of the District of Columbia in light of Art. V(d) and (e) of the IAD, *fn16 which provide:

(d) The temporary custody [of the receiving state] referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in the one or more untried indictments, informations, or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction. . . .

(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending State.

These provisions did not deprive courts in the District of Columbia of jurisdiction to try appellant on the five counts. See Brown v. District Court, 194 Colo. 225, 571 P.2d 1091, 1092 (Colo. 1977) (en banc) ("The circumstances by which an accused person comes before the court have no bearing on the court's power to try him," citing Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952)); State v. Casuso, 253 N.W.2d 919 (Iowa 1977). However, insofar as appellant's presence here depended upon the IAD, they did place upon the government the obligation to return the prisoner to Maryland once it had dismissed the charges upon which the detainer was based, at least upon the request of either the prisoner or the sending state. *fn17 Cooney v. Fulcomer, 886 F.2d 41 (3d Cir. 1989).

We see no grounds to support the position that although appellant's Art. III request did not encompass the five additional charges, the government could hold him here on the basis of Art. IV. *fn18 That article permits a receiving state to request delivery of a prisoner against whom a detainer is lodged, but the temporary custody thus obtained is, as with Art. III situations, only for the purpose of permitting prosecution on the charge or charges which form the basis of the detainers or arising out of the same transaction. Art. V(d). Thus, if the new offenses were not included within the detainer for purposes of Art. III, they could not be included for purposes of Art. IV.

We may assume, without deciding, that had appellant been sent back to Maryland, he would have been entitled to a hearing pursuant to Maryland's version of the Uniform Criminal Extradition Act, Md. Code Ann. Art. 41, § 2-210 (1990). *fn19 Contrary to a request under Art. III which requires that the prisoner waive his extradition rights, see note 16 (supra) , a prisoner's extradition rights are preserved when the receiving state requests custody under Art. IV of the IAD. Cuyler v. Adams, supra note 10, 449 U.S. at 450.

Thus, the issue is the consequence of a failure to comply with the provisions of the IAD requiring a return to the sending state. If a prisoner is not brought to trial within the time limits designated in the IAD on charges subject to those time limits, its provisions specifically spell out the consequence: a dismissal of the charges with prejudice. Art. V(c). The same sanction is expressly provided for if a prisoner, having been brought to the receiving state pursuant to an Art. III request, is returned to the sending state without trial on any charges encompassed within the Art. III request. Art. III(d). No such sanction is provided for a violation of Art. V(d). We conclude that such a violation is cause for reversal only if it can be shown to have caused prejudice to appellant. See Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946). *fn20

We are unable to perceive that appellant has suffered any prejudice through his conviction here on the five new counts without having been returned to Maryland, nor does appellant even now point to any prejudice that in fact ensued. It is undisputed that the government, had it delivered the appellant back to Maryland, could have forthwith sought his return to the District under a writ of habeas corpus ad prosequendum, as set forth above.

The principal prejudice that a prisoner might ordinarily suffer as a result of the failure to be returned to the sending state would appear to be his loss of any speedy trial rights that an Art. IV procedure might provide him. *fn21 But no such concern is present here. Even if we assume that a prisoner who is held in a receiving state in violation of Art. V retains his speedy trial rights as if he were here involuntarily under an Art. IV request, here appellant pled guilty to the new counts within 120 days after he was brought into the District, and indeed within 120 days after the charges upon which he was tried became formal charges by the filing of an indictment. While it might be argued that if a prisoner's presence in the receiving state is a consequence of an Art. III request, he should be granted the benefit of the Art. III time limits if he is held in the receiving state in violation of Art. V, we think this presses the concept of Art. III rights too far in the face of a statutory scheme that makes no provision for such a sanction.


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