Filed: Oct. 04, 2013
Latest Update: Mar. 28, 2017
Summary: The court, further determined that the government did not and should not have, known of the dismissal of state charges before his arrest by the, Marshals and initial appearance in federal court, rendering his, subsequent indictment less than thirty days later timely under the, Speedy Trial Act.
United States Court of Appeals
For the First Circuit
No. 12-1597
UNITED STATES OF AMERICA,
Appellee,
v.
MICHAEL LEWIS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Stahl, and Thompson,
Circuit Judges.
Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C., was on
brief, for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
October 4, 2013
THOMPSON, Circuit Judge. This case requires us to
determine whether a prisoner against whom a federal detainer has
been lodged and who is erroneously detained by State authorities
following the dismissal of State criminal charges is in federal
custody for purposes of the Speedy Trial Act, 18 U.S.C. § 3161(b).
We conclude that the appellant did not enter federal custody until
October 3, 2011, the date on which he was arrested by United States
Marshals and brought before a federal judge. As such, his October
26, 2011, indictment occurred within thirty days of his arrest on
federal charges and, therefore, did not violate the Speedy Trial
Act. We also reject the appellant's claim that the district court
erred by failing to impose any sanctions against the federal
government as a result of its purported failure to notify him that
it had lodged a federal detainer against him.
I. BACKGROUND
The facts of this matter are relatively straightforward.
The parties stipulated to many of them and neither party challenges
any of the additional facts found by the district court. On August
6, 2011, deputies of the Cumberland County Sheriff's Office
arrested Michael Lewis ("appellant") at a gravel pit in Standish,
Maine.1 It appears that at the time of his arrest the appellant
had a firearm on him, and that he had been convicted of at least
1
There is no indication that any federal agent orchestrated,
participated in, or was even aware of the arrest.
-2-
one felony in the past. Following his arrest, the State of Maine
("State") charged appellant with the following criminal counts:
Possession of a Firearm by a Felon in violation of 15 M.R.S.A.
§ 393(1)(A-1); Theft by Receiving Stolen Property in violation of
17-A M.R.S.A. § 359(1)(B)(2); and Carrying a Concealed Weapon in
violation of 25 M.R.S.A. § 2001-A(1)(B). The appellant was granted
but did not post bail for reasons not appearing in the record.
Thus, he remained in the State's custody at the Cumberland County
Jail.
During the afternoon of Friday, August 26, 2011, the
United States ("government") filed a complaint in the United States
District Court for the District of Maine charging the appellant
with one count of violation of 18 U.S.C. § 922(g)(1), possession of
a firearm by a convicted felon. An arrest warrant on the federal
charges was issued that same day. Later that afternoon the
government prosecutor contacted the State prosecutor to advise him
that a federal complaint had been filed against the appellant. The
State prosecutor responded that he would "promptly dismiss the
related state charges." The government prosecutor also told the
appellant's State-appointed defense counsel that a complaint
against his client had been filed in federal court. The record
does not reveal whether the government also informed defense
counsel that it had been advised the State intended to dismiss its
charges "promptly."
-3-
The government lodged a federal detainer at the
Cumberland County Jail at 9:34 a.m. on the next business day,
Monday, August 29, 2011.2 Later that same day, the State
voluntarily dismissed all its charges against the appellant. What
occurred next (or, more accurately, failed to occur) sets the stage
for this appeal.
The parties stipulated as to the procedures generally
followed by the Cumberland County Jail when a federal detainer is
lodged against one of its inmates. Once the Jail is advised that
the State charges have been dismissed, it contacts the United
States Marshals Service to let them know the State charges are no
longer pending.3 The Marshals Service in turn notifies both the
appropriate United States District Court and the United States
Attorney's Office. Thus, had the normal and customary practice
been adhered to in this instance, the Jail should have received
notice of the dismissal of State charges on or soon after August 29
and passed this information along to the United States Marshals so
the appellant could be placed into federal custody.
There is no question that the customary procedures broke
down in this case, as the appellant languished in the Cumberland
2
Although the parties agree on the exact date and time that
the detainer was lodged with the Jail, the document itself is not
in the record. Indeed, it is not clear whether that document still
exists.
3
It appears from the record that notice of the dismissal of
State charges is provided by the State court.
-4-
County Jail for the next month. During this time, the Jail never
notified the United States Marshals Service that the State charges
had been dismissed. As the Marshals were not informed of the
dismissal, they did not notify the U.S. Attorney's Office that the
State charges had been dismissed and that the appellant should be
taken into federal custody. Thus, the appellant remained
incarcerated by the State despite the fact it had dismissed all
charges against him.
The record does not provide any hint as to how long this
state of affairs would have persisted if not for the intervention
of an outside actor. Finally, on September 26, 2011, the
appellant's girlfriend phoned the U.S. Attorney's Office, stated
that all State charges had been dismissed, and inquired as to why
the appellant was still sitting in the Cumberland County Jail.4 It
appears this phone call prompted action on the appellant's case, as
the government prosecutor assigned to the case telephoned the Jail
that same day. Officials at the Jail told her the appellant was
still being held on the State charges. During this conversation
the Jail specifically informed the government prosecutor it was not
holding the appellant as a result of the federal detainer.
4
The stipulated facts do not indicate whether the appellant's
girlfriend contacted or made an attempt to contact the State
authorities in addition to the U.S. Attorney's Office, nor did the
district court make any findings of fact in this regard.
-5-
Also on September 26, the government prosecutor contacted
the State prosecutor via electronic mail to inquire as to the
status of the State charges. The State's attorney reported that
the State charges were dismissed on August 29, 2011, and in reply
the government's prosecutor stated the Jail was still holding the
appellant on the State charges. From the tenor of the email
messages introduced as exhibits at the district court, it certainly
appears the State's attorneys were completely unaware that the
appellant was still in State custody. In further email
correspondence on Tuesday, September 27, 2011, the State prosecutor
informed the government's prosecutor that he would contact the
State court to verify it had received the State's dismissal. He
also promised to ask the State court to notify the Jail of the
dropped charges.
While the record shows that there was some additional
email correspondence between the State and government attorneys
regarding the status of the case over the next several days, no
official action was taken and the appellant remained in State
custody for the next week. Finally, on October 3, 2011, the State
prosecutor called the State court to have a copy of the dismissal
faxed to the Jail. The State's attorney then confirmed with an
officer at the Cumberland County Jail that the Jail had in fact
received notification of the dismissal, and he advised the
government prosecutor of these developments through email.
-6-
Apparently, once the Jail finally received notice of the
dismissal on October 3, it promptly contacted the United States
Marshals in accordance with its usual protocol. Thereafter the
government acted swiftly, as on the same day it arrested the
appellant on the federal warrant and brought him before a federal
judge for his initial appearance.5 A federal grand jury returned
a one-count indictment on October 26, 2011, charging the appellant
with violating 18 U.S.C. § 922(g)(1). The appellant remained in
federal custody between October 3 and October 26, as he waived his
right to contest the government's motion to detain him pending
trial.
The appellant subsequently filed a motion to dismiss the
federal indictment for violation of the Speedy Trial Act and for an
alleged violation of his right to a speedy trial under the Sixth
Amendment of the United States Constitution. The appellant argued
that even though he was being held at a State facility from August
6 to October 3, the dismissal of all State charges and the lodging
of the federal detainer on August 29, 2011, was the functional
equivalent of an arrest by federal authorities. The appellant took
5
The Court takes judicial notice that the return section on
the arrest warrant indicates that the warrant was executed on
October 3, 2011. See Kowalski v. Gagne, 914 F.2d 299, 305 (1st
Cir. 1990) ("It is well-accepted that federal courts may take
judicial notice of proceedings in other courts if those proceedings
have relevance to the matters at hand."). The executed arrest
warrant with the signature of the arresting officer was filed with
the district court on October 5, 2011.
-7-
the position that the indictment should be dismissed because it was
not issued within thirty days from the date federal custody began,
as the Act requires.
The district court held a hearing and denied the
appellant's motion on January 25, 2012. Two days later, and with
the government's consent, the appellant entered a conditional
guilty plea whereby he reserved his right to appeal the denial of
his motion to dismiss. The district court approved and entered the
conditional plea on February 3, 2012. Judgment entered on May 11,
2012. This timely appeal followed.
II. DISCUSSION
The appellant insists that the lodging of the federal
detainer on the morning of August 29, 2011, combined with the
dismissal of State charges later that day, acted as a de facto
arrest by federal authorities that triggered the thirty-day "arrest
to indictment" time limit under the Speedy Trial Act, 18 U.S.C.
§ 3161(b). In the appellant's view, once the State dismissed its
charges against him, the federal detainer became the functional
equivalent of an arrest because it was the sole legitimate basis
for the State to continue holding him. Using August 29 as the
starting point, he then argues that the government violated the Act
-8-
by failing to indict him within thirty days, necessitating
dismissal of the indictment.6
Separately, the appellant posits that the government also
violated the Act by failing to notify him of the detainer. While
conceding that dismissal of the indictment is not an appropriate
remedy for any such violation, the appellant asks us to remand this
matter to the district court for imposition of an appropriate
sanction.
In rejoinder, the government argues that the Speedy Trial
Act does not apply until an individual is arrested or served with
a summons with respect to a federal crime. According to the
government, the federal detainer did not function as a federal
arrest because the State continued to exercise jurisdiction over
the appellant. The government further argues that the appellant
was never in custody as a result of a federal charge prior to
October 3, 2011, because the Cumberland County Jail was actually
holding him on the previously-dismissed State charges. The
government, therefore, argues that because the thirty-day arrest to
indictment time limit did not begin to count down until October 3,
the October 26 indictment came well within the Speedy Trial Act's
deadline.
6
The appellant does not press a constitutional argument in
this appeal.
-9-
As to the appellant's request for sanctions, the
government argues that this appeal constitutes the first time he
has sought any sanction other than dismissal. Therefore, the
government urges us to find the appellant has waived any objections
to the district court's failure to impose sanctions.
A. Speedy Trial Act
The district court's denial of a motion to dismiss
predicated upon the Speedy Trial Act is reviewed de novo with
respect to questions of law. United States v. Maryea, 704 F.3d 55,
63 (1st Cir. 2013). Factual findings, however, will only be
overturned where there has been "clear error." Id. The parties
here have stipulated to many of the operative facts, and neither
party has challenged any of the facts found by the district court
at the hearing on the motion to dismiss. As such, we review the
legal questions de novo.
The main thrust of the appellant's appeal is centered on
the thirty-day arrest to indictment time limit set forth in the
Speedy Trial Act, 18 U.S.C. § 3161(b). The critical question to be
answered is whether or not the lodging of the federal detainer at
the Cumberland County Jail prior to the dismissal of State charges
constituted a federal "arrest" so as to begin the thirty-day
countdown. This issue is dispositive, as the government's October
26, 2011, indictment clearly did not comply with the Speedy Trial
Act if the clock began ticking on August 29.
-10-
1. Federal detainers
Our analysis begins with the statutory language. The
Speedy Trial Act provides, in pertinent part, that "[a]ny
information or indictment charging an individual with the
commission of an offense shall be filed within thirty days from the
date on which such individual was arrested or served with a summons
in connection with such charges." 18 U.S.C. § 3161(b). The term
"offense" is defined as "any Federal criminal offense which is in
violation of any Act of Congress and is triable by any court
established by Act of Congress," with certain exceptions not
relevant here. 18 U.S.C. § 3172(2). Pursuant to the clear
statutory language, the Act applies solely to individuals who have
been arrested or served with a summons in connection with an
alleged federal crime. See United States v. Kelly, 661 F.3d 682,
687 (1st Cir. 2011) ("The Act, by its terms, applies only where
there is an 'arrest' or service of a 'summons' in connection with
the relevant federal charges." (quoting 18 U.S.C. § 3161(b))),
cert. denied, 132 S. Ct. 2116 (2011). Thus, only that class of
individuals is entitled to the thirty-day arrest to indictment
requirement set forth in section 3161(b).7
7
Section 3161(h) sets forth various "periods of delay" that
are to be excluded in calculating the deadline by which an
indictment must be filed. Because we conclude that the clock did
not begin ticking until October 3, there is no need to address any
of these exceptions.
-11-
The record establishes that the appellant's August 6,
2011, arrest was effectuated by State deputies and resulted in him
being charged with violations of State law. Following that arrest,
he was held in State custody at the Cumberland County Jail after
failing to post bail.
Although the State dismissed its charges against the
appellant on August 29, 2011, the record is devoid of any evidence
that the Cumberland County Jail was notified of the dismissal in a
timely manner. To the contrary, one possible conclusion emerges
from the record. The Jail was not told the charges had been
dismissed. Consequently, the Jail continued to hold the appellant
because the Jail officials operated on the assumption he was still
facing State charges, and not because of the federal detainer.
Indeed, this is precisely what Jail officials told the government
prosecutor on September 26, 2011, when she called to inquire about
the appellant's continued detention.
Clearly, the email exhibits submitted to the district
court reveal that the Jail was not aware at all that the State
charges had been dismissed until the State prosecutor asked the
State court to fax a copy of the dismissal to the Jail on October
3, 2011. The record shows that once this was done, the Jail
promptly advised the United States Marshals of the dismissal. The
Marshals in turn swiftly arrested and took custody of the appellant
-12-
and brought him in front of a federal judge for his initial
appearance, all of which occurred on October 3.
Based on these undisputed facts, we conclude the
appellant was in State custody (though perhaps unlawfully) from the
time of his August 6, 2011, arrest by State sheriff's deputies
through October 3, 2011. During that time, he was subject only to
the jurisdiction of the State of Maine. It was not until the
United States Marshals Service took custody of the appellant on
October 3, 2011, that he was arrested in connection with federal
charges. Accordingly, and pursuant to the plain language of the
Act, the thirty-day arrest to indictment clock did not begin to
count down until October 3, 2011.
And the appellant's Speedy Trial Act argument simply
cannot be reconciled with the clear statutory language. We have
recognized that the Act "sets bright-line rules." United States v.
Hood, 469 F.3d 7, 10 (1st Cir. 2006). Other Circuits have noted
that the Speedy Trial Act "is intended to mandate an orderly and
expeditious procedure for federal criminal prosecutions by fixing
specific, mechanical time limits within which the various
progressions in the prosecution must occur." United States v.
Iaquinta,
674 F.2d 260, 264 (4th Cir. 1982); see also United States
v. Shahryar,
719 F.2d 1522, 1523-24 (11th Cir. 1983).
Consistent with its mechanical nature, the Act sets forth
a very clear trigger for the thirty-day time limit: the date on
-13-
which a defendant is arrested or served with a summons in
connection with a federal offense. 18 U.S.C. § 3161(b). The
lodging of a federal detainer is conspicuously absent from the list
of triggering events. This absence was not an oversight or
mistake, as a subsequent provision of the Act specifically
addresses federal detainers and the procedures that are to be
employed in the event a detainer is lodged against an individual
already serving a prison sentence. See 18 U.S.C. § 3161(j)(1)-(2)
(requiring the person with custody of a prisoner against whom a
federal detainer has been lodged to advise that person of the
charge and the right to demand trial thereon); see also Kelly, 661
F.3d at 685 ("The Act . . . addresses individuals charged with
federal crimes who are already serving a term of imprisonment.").
Given the explicit reference to federal detainers
elsewhere in the Act, it is clear Congress was well aware of their
existence when it drafted the Act and, specifically, section
3161(b). The dictates of section 3161(b) are clear. Had Congress
intended for the lodging of a federal detainer to begin the thirty-
day countdown, it would have included detainers as a triggering
event along with arrests and summonses. As Congress elected not to
do so, it is not for this Court to substitute its judgment for that
of Congress and rewrite the statute.
-14-
2. Appellant's proposed knowledge test
We move on to the appellant's request that we impute a
"knowledge" test to the Act. According to the appellant, the
countdown should begin on the date the government knew or should
have known the appellant was being held due to the detainer and not
the state charges. In urging us to adopt this trigger--one not
contained anywhere in the Act--the appellant relies on the opinion
of the Fourth Circuit Court of Appeals in United States v.
Woolfolk, 399 F.3d 590 (4th Cir. 2005). In Woolfolk the Fourth
Circuit concluded that the thirty-day clock begins to tick when the
government knows or should know that an individual is being held by
a state for the sole purpose of answering to federal charges. Id.
at 596.8 After careful review of the Fourth Circuit's opinion and
reasoning, along with the Supreme Court's opinion issued several
8
While the Fourth Circuit stated in its opinion that the
government's "knowledge" triggers the clock, it ultimately remanded
the matter for the district court to determine when "the Government
knew or should have known that [the defendant] was being held by
the state solely because of the federal detainer." Id. at 597.
Upon remand, the district court ultimately found--based on facts
strikingly similar to those we have here--no violation of the
Speedy Trial Act. See United States v. Woolfolk, No. 3:03 CR
00079, 2005 WL 2100933 (W.D. Va. Aug. 31, 2005). The court
concluded the defendant remained in state custody not as a result
of a federal detainer but, rather, because no one notified the jail
once all state charges had been dropped. Id. at *3. The court
further determined that the government did not and should not have
known of the dismissal of state charges before his arrest by the
Marshals and initial appearance in federal court, rendering his
subsequent indictment less than thirty days later timely under the
Speedy Trial Act. Id. at *4.
-15-
years later in United States v. Tinklenberg, 131 S. Ct. 2007
(2011), we decline to adopt a "knew or should have known" test.
First, the Fourth Circuit's opinion neither addresses the
clear statutory language of section 3161(b), nor cites any
authority for reading into it a requirement that was not imposed by
Congress. As set forth above, the intent of the Act is to provide
bright-line rules that can be applied mechanically and
consistently. The appellant has not provided us with any
convincing authority that would allow this Court to modify or
dispense with the Act's clear language and bright-line
requirements.
Moreover, we are concerned that the knowledge test for
which the appellant advocates frustrates the purpose of the Act and
is unworkable in practice. Our trepidation is heightened by the
Supreme Court's opinion in Tinklenberg, which leaves no doubt that
the Act is to be interpreted in a manner allowing for the
application of clear and definitive rules. See 131 S. Ct. at
2015.9
Tinklenberg involved the Speedy Trial Act's requirement
for trial to commence within seventy days of (1) filing an
information or indictment or (2) a defendant's initial appearance
before a judicial officer. Id. at 2010. The provision at issue
9
The Fourth Circuit, of course, did not have the benefit of
the Supreme Court's teaching in Tinklenberg when it decided
Woolfolk in 2005.
-16-
excludes "delay resulting from any pretrial motion, from the filing
of the motion through . . . [its] disposition" from this seventy-
day period. Id. (quoting 18 U.S.C. § 3161(h)(1)(D)). The Sixth
Circuit had held that a pretrial motion fell within the exclusion
only if it actually caused or led to an expectation of delay. Id.
The Supreme Court reversed, as this interpretation would
make the exclusion "significantly more difficult to administer."
Id. at 2014. The Court posed a series of hypothetical questions to
illustrate its concerns:
[W]hat is to happen if several excludable and
several nonexcludable potential causes of
delay (e.g., pre-trial motions to take
depositions, potential scheduling conflicts,
various health examinations, etc.) coincide,
particularly in multidefendant cases? Can the
judge, motion by motion, decide which motions
were responsible and which were not
responsible for postponing what otherwise
might have been an earlier trial date? And
how is a defendant or his attorney to predict
whether or when a judge will later find a
particular motion to have caused a
postponement of trial? And if the matter is
difficult to predict, how is the attorney to
know when or whether he or she should seek
further postponement of the 70-day deadline?
Id. at 2015.
The Court proposed several methods of surmounting those
challenges but recognized that implementing them would require
"considerable time and judicial effort." Id. Doing so, however,
"would not prevent all or even most mistakes, needless dismissals
of indictments, and potential retrials after appeal--all of which
-17-
exact a toll in terms of the fairness of and confidence in the
criminal justice system." Id. The Court also criticized the Sixth
Circuit's rule because it would "turn[] the federal judicial system
away from the far less obstacle-strewn path that the system has
long traveled." Id.
Similar concerns are present with respect to the
appellant's proposed knowledge rule. The appellant asks us to
substitute the clear, bright-line rule that the thirty-day clock
begins to tick at the moment of a federal arrest with a nebulous
rule requiring a case-by-case inquiry into when the government
"knew or should have known" a defendant was being held by state
authorities only as a result of a federal detainer. This would
essentially impose a requirement upon the government to continually
monitor the status of state proceedings against every single
individual against whom a federal detainer has been lodged for fear
that a reviewing court could one day find that the government
"should have known" of the dismissal of state charges shortly after
their dismissal. So too would the judicial system be burdened by
such a rule, as it would necessitate additional pretrial
factfinding with respect not only to the actual proceedings in the
state court, but also with respect to what the government actually
knew and, moreover, what it should have known. Such a rule would
inevitably result in needless dismissals of indictments and
additional appeals to this Court.
-18-
None of these burdens are imposed by the clear language
of the Act or by any decisional law that has been brought to this
Court's attention. This standard would obliterate the bright-line
rules set forth in the Act and run contrary to the concerns
previously expressed by the Supreme Court and by this Circuit. We
have no trouble, therefore, in rejecting such an unworkable,
cumbersome, and burdensome standard, especially where it is
obviously not mandated or contemplated by the statutory language.10
3. "Functional equivalent" arguments
Having disposed of his first two arguments, we consider
the appellant's contention that a detainer is a "functional
equivalent" of an arrest and thereby starts the thirty-day
countdown. Although we have not heretofore had occasion to
determine whether a federal detainer may act as the functional
equivalent of a federal arrest, we have previously considered a
similar question of whether the thirty-day clock begins to run
while an individual remains in state custody on state charges. See
10
We further note the appellant would not be entitled to relief
even if we were to adopt his proposed test. The critical question
in Woolfolk was the date on which the government knew or should
have known that the defendant was held solely on federal charges.
399 F.3d at 597. The Jail kept the appellant incarcerated on the
State charges up through October 3, 2011, when it learned for the
first time they had been dismissed. There are no allegations or
evidence of collusion between the State and the government to
secure a tactical advantage or to violate the appellant's rights
under the Speedy Trial Act. As such, even under the appellant's
proposed rule, the thirty-day clock would not have begun to count
down until October 3, 2011.
-19-
Kelly, 661 F.3d 682. As explicated below, our reasoning in Kelly
applies with equal force here and is fatal to the appellant's
position.
Kelly considered whether an individual's "appearance
under a writ of habeas corpus ad prosequendum constitutes an
'arrest' or 'summons' under the [Speedy Trial Act]" and explicitly
concluded that it did not. Id. at 687. As we explained, by
issuing a writ of habeas corpus ad prosequendum the requesting
jurisdiction seeks to have a prisoner in another jurisdiction
produced to the requesting jurisdiction in order to stand trial.
See id. Such a writ is "neither an arrest nor a summons" and
differs from an arrest in that it does not involve taking an
individual into custody. Id. Instead, the writ applies only to
one who is already in custody. Id. Also, the fact that such a
writ is directed to the individual's custodian, and not to the
individual himself, further distinguishes it from an arrest or
summons. Id. Furthermore, just as Congress clearly was aware of
federal detainers when it drafted the Act, Congress was also "well
aware" of ad prosequendum writs but chose not to have their
issuance trigger the thirty-day clock. Id. at 688. We concluded
that "[w]here a state arrest takes place and the United States
later files a complaint and a detainer seeking to prosecute that
individual, there is no federal 'arrest' under the Act, as the
individual is in custody based on state law violations." Id. at
-20-
689 (citing United States v. Taylor, 814 F.2d 172, 175 (5th Cir.
1987) and United States v. Copley,
774 F.2d 728, 730 (6th Cir.
1985)); see also Woolfolk, 399 F.3d at 595 ("[T]he Government's
filing of a complaint, serving of an arrest warrant and lodging of
the warrant as a detainer . . . while Woolfolk was in state custody
answering to state charges, did not activate the provisions of the
Speedy Trial Act.").
The reasoning in Kelly applies strongly here. In
effectuating an arrest or serving a summons, the government takes
affirmative action against an individual. A federal detainer,
however, is directed to an individual's custodian and does not
effect a transfer of custody. Indeed, a detainer expressly
contemplates a future transfer of custody. Thus, for purposes of
the Speedy Trial Act, the lodging of a federal detainer is roughly
equivalent to the issuance of a writ ad prosquendum. Accordingly,
we have no hesitation in holding that where an individual is
arrested on state charges and the government subsequently files a
complaint and lodges a detainer against that individual, if the
individual remains in custody based on the state charges and not
"in connection with" the later-filed federal charges, 18 U.S.C. §
3161(b)'s thirty-day arrest to indictment requirement is not
triggered.11
11
This is not to say that a detainer could never operate as a
functional equivalent of a federal arrest. Generally speaking, an
arrest may occur "when law enforcement officials effect a
-21-
It follows here that the Speedy Trial Act's thirty-day
clock began ticking when the appellant was taken into federal
custody on October 3, 2011. The subsequent indictment on October
26, 2011, was issued well within thirty days. As such, there was
no violation of the appellant's rights under the Speedy Trial Act,
and the district court correctly denied his motion to dismiss.
B. Appellant's Request for Sanctions
Finally, the appellant argues that the government
violated 18 U.S.C. § 3161(j)(1)(B) by failing to advise him of the
detainer and that it should have been sanctioned by the district
court. The government argues that this request has been raised for
the first time on appeal and is, therefore, waived.
Our review of the record below indicates that the briefs
and the hearing at the district court focused on the appellant's
request for dismissal only. The appellant did not raise the issue
of sanctions other than dismissal in even an oblique way until he
filed his reply brief in the district court, in which he simply
asked that court to "dismiss the indictment with prejudice and
significant deprivation of an individual's liberty." Copley, 774
F.2d at 730. A detainer may either request notification from a
state prior to releasing an individual from custody, or ask state
authorities to keep the individual in state custody. See Carchman
v. Nash, 473 U.S. 716, 719,
105 S. Ct. 3401, 3403 (1985). Here,
the State continued to hold the appellant on State charges past
August 29, 2011. "Had the [Jail] been aware of the dropped charges
and continued to hold [the appellant] under the authority of the
detainer, different considerations would apply." Copley, 774 F.2d
at 730. We do not pass upon what "different considerations" may
come into play in an appropriate case.
-22-
grant other appropriate relief." The appellant wholly failed to
specify what measures or sanctions he believed would constitute
"other appropriate relief" at any time before the district court.
Neither did the appellant bring the district court's attention to
18 U.S.C. § 3162(b), which sets forth a range of potential
sanctions falling short of dismissal that may be imposed to remedy
certain violations of the Speedy Trial Act.
"Passing allusions are not adequate to preserve an
argument in either a trial or an appellate venue." United States
v. Slade, 980 F.2d 27, 30 (1st Cir. 1992). There is no indication
that the appellant's cursory request for "other appropriate relief"
was anything other than standard, boilerplate language. The
appellant did not sufficiently raise this request at the district
court and has, therefore, waived any claims of error based on a
failure to impose a sanction short of dismissal.
III. CONCLUSION
Although we affirm the district court's denial of the
appellant's motion to dismiss in all respects, this does not signal
that we make light of or approve of what transpired while the
appellant was held at the Cumberland County Jail. However, his
grievances lie beyond the strictures of the Speedy Trial Act.
After careful consideration, the district court's denial of the
motion to dismiss is affirmed.
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