Opinion
No. CR4-03-319736
June 4, 2004
MEMORANDUM OF DECISION RE MOTION TO DISMISS
ISSUE
Whether the defendant's motion to dismiss the information should be granted on the ground that the state of Connecticut violated Article IV(e) of the Interstate Agreement on Detainers, General Statutes § 54-186, thereby losing jurisdiction over the defendant.
FACTS
On July 26, 2001, the defendant was arrested on federal charges and held without bond pursuant to the arrest. The defendant entered into the state of Connecticut correctional system on July 26, 2001, and was discharged the same day to the custody of the federal authorities.
On September 10, 2001, the state's attorney for the judicial district of Waterbury signed an arrest warrant charging the defendant with six counts of sexual assault in the first degree, six counts of risk of injury to a minor and six counts of conspiracy to commit sexual assault in the first degree. Also on September 10, 2001, an inspector with the office of the state's attorney for the judicial district of Waterbury sent a copy of the arrest warrant to the United States Marshals Service accompanied by a letter. In the letter, the inspector requested acknowledgment of receipt of the warrant and further requested that the Marshals Service "arrange to have [the defendant] presented to State Inspectors for arraignment in Superior Court, State of Connecticut, City of Waterbury." There also exist in evidence two United States Marshals Service prisoner tracking system forms. The form dated June 17, 2003 states that there was a detainer lodged against the defendant on September 10, 2001. However, the second version of the same form, dated January 7, 2004, states that there were no active detainers on that date.
On February 20, 2003, the state filed its motion for an order permitting the United States marshal to transport the defendant to the Superior Court for the judicial district of Waterbury for arraignment on the charges pending against him in the state of Connecticut. On March 10, 2003, the defendant was readmitted into the Connecticut correctional system from the federal authorities, and remained there during the pendency of his federal trial. On March 25, 2003, the defendant's federal trial ended, and he was convicted on seventeen federal charges.
On March 27, 2003, the defendant was arrested and arraigned in the Superior Court for the judicial district of Waterbury on the warrant that was signed on September 10, 2001. The court also set a bond of $2.5 million. On April 2, 2003, the defendant was discharged from the state of Connecticut correctional system to federal authorities, although the bond had not been posted on the pending state charges.
On June 13, 2003, the defendant was sentenced in federal court by the Honorable Alan H. Nevas to a term of thirty-seven years incarceration. On June 18, 2003, the Superior Court issued a writ of habeas corpus ad prosequendum, moving the defendant from federal custody in New York and presenting him to the state of Connecticut. Immediately following his court appearance he was sent back to federal custody in New York.
According to the defendant's motion to dismiss, on August 12, 2003, the state of Connecticut filed and was granted an order requiring the Connecticut department of correction to assume custody of the defendant upon arrival in Connecticut. On August 14, 2003, the defendant was readmitted to the state of Connecticut correctional system from the federal authorities, and has remained in Connecticut's custody since that time.
This case is presently before the court on the defendant's motion to dismiss the information on the ground that the state of Connecticut violated the anti-shuttling provision of the Interstate Agreement on Detainers (IAD), General Statutes § 54-186, Article IV(e), thereby losing jurisdiction over the defendant. Specifically, the defendant argues that the state violated Article IV(e) when it returned him to federal custody on June 18, 2003, before trial was completed on his state charges. Both parties have filed numerous memoranda of law in support of their positions. The motion to dismiss hearing was held on January 16, 2004.
DISCUSSION I. Motion to Dismiss and IAD Background
The defendant brings this motion to dismiss the information pursuant to Practice Book § 41-8 and General Statutes § 54-186, Article IV(e). Practice Book § 41-8 states in relevant part: "The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the information . . . (4) Absence of jurisdiction of the court over the defendant or the subject matter . . ."
Article IV of § 54-186 "provides the means by which a prosecutor who has lodged a detainer against a prisoner in another state can secure the prisoner's presence for disposition of the outstanding charges." United States v. Mauro, 436 U.S. 340, 351, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). "The [IAD] creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime." Alabama v. Bozeman, 533 U.S. 146, 148, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001).
Article IV(a) states in pertinent part: "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 . . . upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated . . ." General Statutes § 54-186, Article IV(a). Article IV(e), which the defendant claims was violated, states in pertinent part: "If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice." General Statutes § 54-186, Article IV(e)
"[T]he provisions of the [IAD] are triggered only when a `detainer' is filed with the custodial (sending) State by another State (receiving) having untried charges pending against the prisoner; to obtain temporary custody, the receiving State must also file an appropriate `request' with the sending State." United States v. Mauro, supra, 436 U.S. 343-44. "The Agreement itself contains no definition of the word `detainer.' The House and Senate Reports, however, explain that `[a] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.'" United States v. Mauro, supra, 436 U.S. 359. The [Supreme] Court has stated that for IAD purposes, "[a] detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent." Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 87 L.Ed.2d 516 (1985).
"Because the detainer remains lodged against the prisoner until the underlying charges are finally resolved, the Agreement requires that the disposition be speedy and that it be obtained before the prisoner is returned to the sending State. The fact that the prisoner is brought before the district court by means of a writ of habeas corpus ad prosequendum in no way reduces the need for this prompt disposition of the charges underlying the detainer." United States v. Mauro, supra, 436 U.S. 362. "After lodging the detainer an appropriate officer of the demanding state may make a written request for temporary custody of the prisoner for the purpose of trying those indictments, informations, or complaints that form the basis of the detainer." Giardino v. Bourbeau, 193 Conn. 116, 124, 475 A.2d 298 (1984). If a detainer is present then "the statute's provisions apply only to trial on charges that form the basis of the detainer, that is, the reason for its being lodged." (Emphasis in original.) State v. Taylor, 63 Conn. App. 386, 414, 776 A.2d 1154, cert. denied, 257 Conn. 907, 777 A.2d 687, cert. denied, 534 U.S. 978, 122 S.Ct. 406, 151 L.Ed.2d 308 (2001).
The purpose of the Interstate Agreement on Detainers is "to encourage the expeditious and orderly disposition of . . . charges [outstanding against a prisoner] and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." (Internal quotation marks omitted.) United States v. Mauro, supra, 436 U.S. 343. "Because the IAD is an interstate compact that the federal Congress has sanctioned, [the court] must interpret its provisions in accordance with federal law." State v. Herring, 210 Conn. 78, 85, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S.Ct. 3230, 106 L.Ed.2d 579 (1989).
"If the receiving state violates the time limits proscribed by the statute [or the antishuttling provision of Article IV], the pending charge or charges must be nullified and dismissed with prejudice, and the detainer invalidated." State v. Taylor, supra, 63 Conn. App. 413.
II. Legal Arguments
In the defendant's motion to dismiss, he asserts that "on or about September 10, 2001 the State's Attorney for the Judicial District of Waterbury did lodge a detainer against [the defendant] when the state did inform the United States government via a letter to the United States Marshals Service of the existence of the information. And, further the state did acknowledge the fact that [the defendant] was in federal custody." (Defendant's Motion to Dismiss, ¶ 3.) In light of that fact, the defendant argues the state violated Article IV(e) of the IAD on June 18, 2003, because the "state returned [the defendant], who was then a sentenced federal prisoner, to the custody of the federal authorities following his appearance in the state of Connecticut . . . before his trial on the information was concluded." (Defendant's Motion to Dismiss, ¶ 9.) The defendant further argues that "[i]f a detainer has been lodged against a defendant, and the defendant is removed from one jurisdiction's custody and turned over to another's custody to answer to the charges of the detainer, and then returned to the original jurisdiction before his trial is `had,' there has been a violation of Article IV(e)." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, p. 3-4 ¶ 1.)
In the state's memorandum of law in opposition to defendant's motion to dismiss, the state argues that there was no detainer lodged against the defendant on June 18, 2003 (the date upon which the defendant was presented in state court via a writ of habeas corpus ad prosequendum) because the intervening warrant made a detainer invalid. The state argues that "[t]he original detainer, lodged with the United States Marshal's Office on September 10, 2001, was no longer valid as the Defendant had been served with the warrant on March 27, 2003, and was thereafter in State custody." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1.)
In the alternative, the state asserts that if there was a valid detainer, it was no longer valid because the defendant was served with a warrant, and was thereafter in state custody, resulting in the state's exercise of in personam jurisdiction over the defendant. (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1.) The defendant responded to this assertion by stating that "every arrest and every arraignment creates, at least temporarily, a situation of a court's in personam jurisdiction of a defendant . . . [and] it is the Court which exercises authority and power over a defendant and not the prosecuting authority." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1 p. 4.)
In the alternative, the state asserted in its oral argument at the January 16, 2004 motion hearing, that a detainer was never lodged in this case. (January 16, 2004 Hearing Transcript, Argument of John Connelly, p. 18-19.) The state claims that the warrant and accompanying letter to the Marshals Service was not a detainer and, therefore, the IAD does not apply.
This court was not convinced with defense counsel's argument that this assertion differed from the state's original position. The arguments of the invalidity of the former detainer and the altogether lack of a detainer, were arguments that intertwined, and thus, the state was not raising new arguments not previously set forth in its briefs. See January 16, 2004 Hearing Transcript, Court's Remarks, p. 26-27.
The state further asserts that "[the defendant's] physical discharge to federal authorities on April 2, 2003 was done without the knowledge or consent of the State's Attorney for the Judicial District of Waterbury, and thus no detainer was ever lodged with the federal authorities after April 2, 2003." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1.) The defendant counters this argument by stating that the aforementioned fact of the prosecutor's lack of knowledge "is of absolutely no moment or legal significance in this Court's determination of whether the defendant's rights pursuant to Article IV(e) were violated." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1 p. 6-7.) The defendant argues in the alternative, that even if this fact is of legal significance, the state's attorney "at least had constructive, if not actual, knowledge of [the defendant's] return to federal custody on April 2, 2003." (Emphasis in original.) Id., ¶ 1 p. 7.
The state argues in the alternative that even if a valid detainer was lodged against the defendant, on June 18, 2003 the defendant was not in Connecticut pursuant to the IAD, because the state did not seek or obtain a "Request for Temporary Custody" form as required by Article IV(a) of the IAD. The state asserts that the defendant "was presented in State court via a Writ of Habeas Corpus Ad Prosequendum. Thereafter, immediately following his court appearance, he was returned to New York. At no time on that date did the Defendant enter the State correctional system." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Facts, ¶ 9.)
The state argues in the alternative that even if the IAD does apply in this case (i.e., a detainer was lodged against the defendant), any Article IV(e) violation does not require dismissal, because the defendant had not begun serving his federal sentence and, therefore, had not started the rehabilitative process yet.
The state also argues that "Article V of the IAD allows a federal prisoner to remain in federal custody if such arrangement is approved by the custodian." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 4.) The defendant counter-argues that "the language cited by the State as well as all of the text of Article V must be read in conjunction with and in harmony with all of the text of Article IV. Nothing in Article V concerning the transfer of custody, the conditions of confinement, the place of confinement or the allotment of the responsibility for the custody of the prisoner/defendant contradicts, countermands or vitiates the Article IV(e)." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 4 p. 18.) Relying on Alabama v. Bozeman and New York v. Hill, the state argues again in the alternative that even if the IAD is applicable, the defendant waived the provisions of the IAD. It states: "By agreeing to the new court date, acknowledging that the Defendant would be held in federal custody pending that date and even requesting that the Defendant be held in a nearby federal facility, the defense surely `accept[ed] treatment inconsistent with the IAD's [provisions].' He should not now be heard to recant that position." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 3.) The defendant counters stating that "[the defendant] could not have waived his rights under the IAD because of what [his attorney] said since it was outside the scope of what his counsel could waive." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 3 p. 16.)
In summation, the defendant argues that the state violated the anti-shuttling provision of the IAD, because the state lodged a detainer against the defendant, brought him into Connecticut via a writ of habeas corpus ad prosequendum and then sent him back to federal custody without resolving the charges against him. The state counter-argues by stating that the detainer was no longer valid due to the intervening warrant, and that the subsequent writ of habeas corpus was not a request under the IAD; in the alternative, that the IAD was not applicable because no detainer was lodged against the defendant because the September 10, 2001 warrant and accompanying letter from the state's attorney's office to the United States Marshals Service was not a detainer under the IAD; that the state did not utilize a valid "Request for Temporary Custody" form as required by the IAD; that dismissal is not proper because a detainer was not lodged with the appropriate facility and because the defendant was not a sentenced federal prisoner at that time and thus his rehabilitative process had not yet begun; that the federal custodian allows a federal prisoner to remain in federal custody if such arrangement is approved by the custodian; and in the alternative that the defendant waived the rights provided to him by the IAD.
III. Analysis A.
In this case, the defendant argues that Article IV(e) of the IAD was violated by the state of Connecticut on June 18, 2003. The state, however, argues that the IAD does not apply because the defendant was not present in Connecticut under the IAD, but rather under the warrant that was served on the defendant on March 27, 2003, because a detainer was never filed. The state argues in the alternative that the writ of habeas corpus was not a request as required under the IAD because the requisite detainer was no longer valid. (State's Memorandum in Opposition to Defendant's Motion to Dismiss, Argument ¶ 1.)
The landmark case for dealing with issues pertaining to the IAD is United States v. Mauro, supra, 436 U.S. 340. In United States v. Mauro, the court decided the issue of whether a writ of habeas corpus ad prosequendum may be considered a detainer or a request for temporary custody within the IAD. "[T]he provisions of the [IAD] are triggered only when a `detainer' is filed with the custodial (sending) State by another State (receiving) having untried charges pending against the prisoner; to obtain temporary custody, the receiving State must also file an appropriate `request' with the sending State." United States v. Mauro, supra, 436 U.S. 343-44.
The Supreme Court held that the writ of habeas corpus ad prosequendum "directing the production of a state prisoner for trial on criminal charges, is not a detainer within the meaning of the Agreement and thus does not trigger the application of the Agreement." United States v. Mauro, supra, 436 U.S. 349. Nevertheless, "once a detainer has been lodged . . . it triggers the procedural rules of the Act so that the later filing of a writ of habeas corpus ad prosequendum is simply equivalent to a `written request for temporary custody' and may not be used as a basis for the federal government to avoid its obligations under the Act." United States v. Scheer, 729 F.2d 164, 170 (2d Cir. 1984). The prosecuting jurisdiction "is bound by the Agreement when it activates its provisions by filing a detainer against a state prisoner and then obtains his custody by means of a writ of habeas corpus ad prosequendum." United States v. Mauro, supra, 436 U.S. 349.
Here, the state argues that there was no detainer. It argues that the letter that was sent to the Marshals Service was not a detainer and, therefore, the IAD does not apply in this case. The state argues in the alternative that if there was a detainer, it was no longer valid, and therefore, the IAD is inapplicable because it only applies in situations where a detainer has been lodged against the defendant and the detainer is still active. The state also asserts that the writ of habeas corpus ad prosequendum that was issued on June 16, 2003 did not follow a detainer — it followed a warrant. Therefore, the state argues, the IAD was not applicable because either the detainer was no longer valid due to the intervening warrant, or because there never was a valid detainer.
In this case whether there was a valid detainer is in dispute. As previously stated, the parties have submitted two United States Marshals Service Prisoner Tracking System forms, one that states that there was a valid detainer dated September 10, 2001, and the other, which states that as of January 7, 2004, there were no detainers present in this case. There is also in evidence a memorandum written by Dawn L. Giddings, Legal Instruments Examiner, stating that "[a] detainer was never placed against Inmate Giordano and a request for State Writ was faxed to our office on July 21, 2003 by the State's Attorney's Office, Waterbury, CT." The defendant claims that the September 10, 2001 letter from the state's attorney to the United States Marshals Service was a detainer under the IAD.
In Alabama v. Bozeman, the Supreme Court stated that when interpreting Article IV of the IAD, " every prisoner arrival in the receiving State, whether followed by a very brief stay or a very long stay in the receiving State, triggers IV(e)'s `no return' requirement." (Emphasis in original.) Alabama v. Bozeman, supra, 533 U.S. 154. The Court rejected the State of Alabama's argument that the violation of Article IV(e) was de minimis and harmless, stating, "the language of the Agreement militates against an implicit exception, for it is absolute." Id., 153. Therefore, if the defendant in the present case was in Connecticut pursuant to a valid detainer, the fact that he was in Connecticut for a very brief period of time does not detract from the violation, and would thus require dismissal of the pending charges.
The state acknowledges that the writ of habeas corpus ad prosequendum was utilized to obtain the defendant's presence in Connecticut on June 18, 2003, but denies the fact that a detainer was lodged prior to that time. Therefore, the outcome of this case turns on whether or not there was a valid detainer lodged against the defendant.
B.
The defendant argues that a detainer was lodged by the state of Connecticut against the defendant on September 10, 2001. The state argues that a detainer was not lodged against the defendant in this case because the September 10, 2001 warrant and accompanying letter were not sent to the institution in which the defendant was being held. Arrest warrants have been held to serve as detainers in certain situations. In Tucker v. United States, 569 A.2d 162 (D.C.App. 1990), the court stated that "a detainer requests the `custodial' or `sending' jurisdiction to notify the `prosecuting' or `receiving' jurisdiction before the inmate's release, and to hold him for delivery to the prosecuting/receiving jurisdiction." Id., 165 (citing Smith v. United States, 470 A.2d 315, 322 (D.C.App. 1983) (Ferren, J., concurring). "Under this definition [of a detainer] an arrest warrant will serve as a detainer within the purview of the IAD if: 1) it is based on an untried information, indictment, or complaint; 2) it is filed by a criminal justice agency; 3) it is filed directly with the facility where a prisoner is incarcerated; 4) it notifies prison officials that a prisoner is wanted to face pending charges; and 5) it asks the institution where the prisoner is incarcerated either to hold the prisoner at the conclusion of the prisoner's sentence, or to notify agency officials when the prisoner's release is imminent. Where all five of these criteria are satisfied, an arrest warrant is plainly `lodged' as a detainer, and the provisions of the IAD come into play." Id., 165.
In light of the aforementioned factors for determining whether a warrant is a detainer for IAD purposes, this court finds that the facts of this case point away from the September 10, 2001 warrant and accompanying letter from the state's attorney's office to the United States Marshals Service as being interpreted as a detainer. The first two criteria are easily satisfied; the warrant was based on an untried information and it was filed by the state's attorney's office, which is a criminal justice agency. However, the third criterion, that the warrant be filed directly with the facility where a prisoner is incarcerated, is not satisfied here. The warrant was filed with the United States Marshals Service, and not the institution where the defendant was imprisoned. "[A] detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." (Emphasis added; internal quotation marks omitted.) United States v. Mauro, supra, 436 U.S. 359. The writ was filed with the United States Marshals Service, and not with the institution where the defendant was serving, or later would serve, his sentence. The fourth requirement, notification of prison officials, is also not satisfied in this case because, again, the letter was filed with the Marshals Service and not with the prison system. Lastly, the fifth requirement, that the warrant ask the institution to either hold the prisoner at the end of his sentence or to notify agency officials when release is imminent, is also not satisfied in this case. The letter with the warrant informed the United States Marshals Service of the pending charges and the need to have him arraigned in Connecticut, but it did not pertain to the release of the prisoner, and it was not addressed to the institution in which the prisoner is incarcerated and, therefore, the fifth requirement is not satisfied.
The Tucker court, after it concluded that the warrant did not meet the five aforementioned criteria, resolved the issue by further analysis, using the functional analysis approach, which looks to the state officials' intent of whether they wanted to have the warrant serve as a detainer, and whether the defendant suffered prejudice during incarceration based on the warrant. Tucker v. United States, supra, 569 A.2d 165-66. In this case, the state's attorney's office stated that it did not intend to lodge a detainer against the defendant. The letter and the warrant were given to the United States Marshals Service, and not the correctional institution that housed the defendant. Even though Connecticut state officials did not intend to lodge a detainer against the defendant, this court must look to the prejudice that defendant may have suffered as a consequence of the warrant. "The IAD aims to protect prisoners both from harassment resulting from the filing of detainers based on groundless charges . . . and from interference with the prisoner's rehabilitation program because of outstanding charges in another state." Id., 167. In this case, the charges against the defendant were not groundless, as they were replications of the federal charges of which he was already convicted. Also, the defendant's rehabilitation program was not interrupted because his rehabilitation in federal prison was not underway at that point in time. Therefore, the functional analysis test bears the same result as the five-part test — the warrant did not serve as a detainer in this case.
C.
The state further asserts that "[the defendant's] physical discharge to federal authorities on April 2, 2003 was done without the knowledge or consent of the State's Attorney for the Judicial District of Waterbury, and thus no detainer was ever lodged with the federal authorities after April 2, 2003." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1.) The defendant counters this argument by stating that the aforementioned fact of the prosecutor's lack of knowledge "as of absolutely no moment or legal significance in this Court's determination of whether the defendant's rights pursuant to Article IV(e) were violated." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 1 p. 6-7.) The defendant argues in the alternative, that even if this fact is of legal significance, the state's attorney "at least had constructive, if not actual, knowledge of [the defendant's] return to federal custody on April 2, 2003." (Emphasis in original.) Id., ¶ 1 p. 7. The court finds no merit in these arguments, and does not find them dispositive of the main issues in this case.
D.
The state also argues that the IAD does not apply because it did not utilize a valid "Request for Temporary Custody" form, which is required under the IAD. As previously stated: "After lodging the detainer an appropriate officer of the demanding state may make a written request for temporary custody of the prisoner for the purpose of trying those indictments, informations, or complaints that form the basis of the detainer." Ciardino v. Bourbeau, supra, 193 Conn. 124. "[A] prisoner serving a sentence in the Connecticut penal system against whom a detainer has been filed . . . will be triggered by the expiration of his term or a valid request for temporary custody." (Emphasis added.) Smith v. Liburdi, 26 Conn. App. 254, 258, 600 A.2d 17 (1991), cert. denied, 221 Conn. 910, 602 A.2d 9 (1992).
The state argues that a "`Request for Temporary Custody' form . . . is specifically required by the IAD, General Statutes Section 54-186, Art. IV(a), and must be `duly approved, recorded and transmitted' by the `court having jurisdiction of such indictment, information or complaint.'" (Emphasis in original.) (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 2.) The state then directed this court's attention to the blank "Request for Temporary Custody" form that was duly attached to its memorandum. The defendant was not able to produce a copy of the "Request for Temporary Custody" form duly filled out by an appropriate officer of the state.
The state's argument is contrary to the previously mentioned holding in United States v. Scheer, supra, 729 F.2d 164, in which the court stated that a writ of habeas corpus ad prosequendum was equal to a written request for temporary custody, and therefore, the government could not avoid its obligations under the IAD. Id., 170. This court acknowledges that the state's argument is contrary to Scheer, because the state did file a writ of habeas corpus ad prosequendum with the court to obtain the defendant's presence in the state of Connecticut. Nevertheless, this court finds the fact that the state did not file a "Request for Temporary Custody" form with the holding institution, but instead filed a writ of habeas corpus ad prosequendum with the institution, corroborative of the state's argument that the IAD did not apply to this case. The fact that the state did not use its usual form corroborates the state's argument that there was no detainer lodged against the defendant and, therefore, the IAD does not apply. This court finds this fact corroborative of the state's argument because if the state knew the IAD would apply, it would have filed its typical form with the institution at which the defendant was serving his sentence.
E.
The state also argues that pursuant to the IAD, the defendant would have to be a sentenced federal prisoner in order for the warrant and accompanying letter to constitute a detainer. See January 16, 2004 Hearing Transcript, Argument of John Connelly, p. 51-53. The state argues in the alternative that even if the IAD does apply in this case (i.e., a detainer was lodged against the defendant), any Article IV(e) violation does not require dismissal, because the defendant had not begun serving his federal sentence and, therefore, had not started the rehabilitative process yet. See id., 12-13, 54-56. In Foster v. Ludwick, 208 F. Sup.2d 750 (E.D.Mich. 2002) the court set forth the Michigan Court of Appeals ruling that the IAD did not apply because the state did not file a detainer against the defendant. However, the court went on to point out the lower court's reasoning, which was that the "Petitioner's transfer out of federal prison did not frustrate the purpose of the IAD because he had not begun any rehabilitative program in federal prison." Id., 754. The IAD "seeks to minimize the consequent interruption of the prisoner's ongoing prison term." Id. The court held that the defendant was not entitled to habeas corpus relief because the petitioner did not request resolution of the state court charges and the prosecutor did not file a detainer against the petitioner. Id.
"[T]he Agreement is only concerned that a sentenced prisoner who has entered into the life of the institution to which he has been committed for a term of imprisonment not have programs of treatment and rehabilitation obstructed by numerous absences in connection with successive proceedings related to pending charges in another jurisdiction . . . The basic purpose of the IAD is to prevent interference with institutional care and rehabilitation, and one cannot interrupt that which has not yet started. This reasoning applies also to cases . . . where, though he has been sentenced, the defendant has not yet been taken to the correctional facility to commence service. The conclusion also fits the language." (Citation omitted.) Crooker v. United States, 814 F.2d 75, 77 (1st Cir. 1987). The `language' that Crooker is referring to is set forth in part Article IV(a), which states in pertinent part: "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) . . ." (Emphasis added.)
The state's argument that the purpose of the IAD was not frustrated because the defendant had not started serving his term of imprisonment has merit. However, the facts as to where the defendant was held prior to and after sentencing are somewhat unclear. It is unclear whether on June 18, 2003, the defendant had begun serving his sentence in federal custody. If a detainer was lodged against the defendant and the IAD was therefore applicable, the fact that the sentence commenced is of great importance. If there was a valid detainer and the defendant was serving a term of imprisonment, the IAD would be violated by the state of Connecticut. If there was a detainer lodged against the defendant, this court finds that if the defendant had not yet been taken to the correctional facility to commence service of his sentence, the IAD was not violated because rehabilitation had not yet begun. In the alternative, as previously stated, even if the defendant had started serving his sentence in federal prison and had thereby begun the rehabilitative process, this court nevertheless would still deny the motion to dismiss because a detainer was not lodged with the appropriate institution in which the defendant was serving a sentence.
F.
The state also argues that "Article V of the IAD allows a federal prisoner to remain in federal custody if such arrangement is approved by the custodian." (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 4.) However, the last sentence of the section was taken out of context by the state, and does not mention the fact that the custodian may keep the prisoner in federal custody "[i]n response to a request made under article III or article IV hereof . . ." General Statutes § 54-186, Article V(a). This section pertains to a situation in which there was a valid "Request for Temporary Custody" form. The state cannot utilize this section in its argument while standing by its assertion that no "Request for Temporary Custody" form was ever executed or recorded. The defendant argues that "the language cited by the State as well as all of the text of Article V must be read in conjunction with and in harmony with all of the text of Article IV. Nothing in Article V concerning the transfer of custody, the conditions of confinement, the place of confinement or the allotment of the responsibility for the custody of the prisoner/defendant contradicts, countermands or vitiates the Article IV(e)." (Defendant's Memorandum in Response to State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 4 p. 18.) This court finds no merit in this argument.
General Statutes § 54-186, Article V(a) states: "In response to a request made under article III or article IV hereof, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice provided for in article III of this agreement. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian."
G.
Lastly, the state argues in the alternative that even if the IAD is applicable, it was waived by the defendant. The state argues that "[w]hen [the defendant] appeared on June 18, 2003 . . . his attorney . . . acknowledged that the Defendant would be returning to federal custody and expressly asked the Court to recommend `to the federal authorities that, in the event that they decide to transfer [the Defendant] to some federal facility [other than the facility being used in Putnam, New York] that they take into consideration [the defense attorney's] need to meet with [the defendant] and house him somewhere in the northeast region.'" (State's Memorandum of Law in Opposition to Defendant's Motion to Dismiss, Argument, ¶ 3.) The state concludes this line of reasoning by arguing that the defense accepted treatment that was inconsistent with the IAD's provisions. The Bozeman court stated that despite the violation of the IAD in the case before it, other situations may arise in which the provisions of Article IV(e) can be waived. "[The court's] decision does not bar a receiving State from returning a prisoner when it would be mutually advantageous and the prisoner accordingly waives his rights under Article IV(e)." Alabama v. Bozeman, supra, 533 U.S. 156-57. "Some courts have found waivers of the Act when there is proof that a prisoner affirmatively requests to be treated in a manner contrary to the Act's procedures." United States v. Scheer, supra, 729 F.2d 171. "The courts have reasoned that only constitutional rights require a knowing and intelligent waiver, and therefore waiver of the statutory rights under the IAD need not be knowing and intelligent." Webb v. Keohane, 804 F.2d 413, 414-15 (7th Cir. 1986).
In this case, the court holds in the alternative that if there was a valid detainer, the defendant waived his rights under the IAD due to defense counsel's request that defendant be housed near his attorney for purposes of communication with his client. This can be viewed as a request for treatment that is inconsistent with the IAD's procedures.
CONCLUSION
Accordingly, for all the foregoing reasons as stated, the defendant's motion to dismiss is denied.
By the court,
Iannotti, J.