The opinion of the court was delivered by: BRYAN
FREDERICK van PELT BRYAN, District Judge:
Defendants John Evans and Marcus Hand were charged in indictment 76 Cr. 502 with various offenses committed during their alleged participation in the armed robbery of a Chase Manhattan Bank branch located at 580 Third Avenue, New York, New York, on August 1, 1975. Their first trial, which began on October 5, 1976, resulted in a mistrial when the jury was unable to reach verdicts as to the two counts outstanding against them.
A retrial was scheduled for October 26, 1976.On that date, the Government's motion to sever as to defendant Hand because of the unavailability of Hand for trial was granted on consent, and the retrial of Evans began. On October 29, 1976, the jury returned a verdict of guilty against Evans on both remaining counts. A retrial of defendant Hand is presently scheduled to begin on December 15, 1976.
On October 26, 1976, the day Evans' retrial began, both defendants filed a motion to dismiss the indictment. Essentially, the motion raises the question whether the defendants' rights under the Interstate Agreement on Detainers (the Agreement), 18 U.S.C., App., 84 Stat. 1397 (1970), or applicable speedy trial rules have been violated.
A brief chronology will be helpful to an understanding of the issues presented. As previously mentioned, the bank robbery in question occurred on August 1, 1975. An investigation commenced immediately, and eventually turned up several suspects. One Raymond Lawrence Johnson was charged with the August 1, 1975 Chase branch robbery in indictment 75 Cr. 879.
On October 6, 1975 Bruce Reavis was indicted as an alleged participant in that robbery in indictment 75 Cr. 965. Contrary to assertions of counsel for the presently moving defendants at oral argument, neither Evans nor Hand was indicted in 75 Cr. 965, which was eventually superseded by the present indictment, 76 Cr. 502.
By April 1975, the Government's attention had focused on Evans and Hand as possible participants in the Chase robbery. Both men were then being held in custody by the Commonwealth of Pennsylvania, awaiting trial on homicide charges. On April 16, 1976, writs of habeas corpus ad testificandum, commanding the presence in this district on April 23, 1976 of Evans, Hand, and two other persons,
Evans and Hand were produced in this district pursuant to these writs on April 20, 1976. On April 22, 1976, their present counsel were assigned under the Criminal Justice Act. After consultation with counsel, the defendants denied any involvement in or knowledge of the Chase robbery and declined to waive the Fifth Amendment privilege against self-incrimination and testify before the grand jury. On May 7, 1976, they were returned to Pennsylvania without having testified before the grand jury.
On May 24, 1976, after Evans and Hand had been returned to the Pennsylvania authorities, the present indictment, 76 Cr. 502, was filed. It superseded 75 Cr. 965, the Reavis indictment, and charged Evans, Hand, Reavis, and Walls with the August 1, 1975 Chase robbery. The homicide trial of Hand in the Court of Common Pleas, Philadelphia County, Pennsylvania, began in early June 1976 and ended on June 19, 1976 with a hung jury. The homicide trial of Evans in the same court began on June 18, 1976 and ended on June 30, 1976 when the jury returned a verdict of guilty. On July 16, 1976, both defendants were convicted of an unrelated bank robbery in the United States District Court for the Eastern District of Pennsylvania.
On July 6, 1976, the Government filed its notice of readiness in the case at bar. In mid-August 1976, writs of habeas corpus ad prosequendum were issued to secure the presence of Evans and Hand in this district for trial; they appeared pursuant to the writs on or about September 7, 1976. As previously noted, their first trial in this district began on October 5, 1976, the retrial of Evans began October 26, 1976, and the retrial of Hand has been scheduled to begin on December 15, 1976.
The defendants contend that the indictment against them must be dismissed because the Government violated sections (c) and (e) of Article IV of the Agreement
by failing to bring them to trial within 120 days of their appearance in this district on April 20, 1976, and by returning them to Philadelphia on May 7, 1976, without having tried them. This argument must be rejected for several reasons.
The appearance of both Evans and Hand in this district on April 20, 1976 was compelled by a writ of habeas corpus ad testificandum. Although a federal writ of habeas corpus ad prosequendum, also issued under 28 U.S.C. § 2241(c)(5), is a "detainer" entitling a state inmate to the protection provided in Article IV of the Agreement, see United States v. Mauro, 544 F.2d 588 (2d Cir. 1976),
the same cannot be said for the writ ad testificandum.
Article IV(a) of the Agreement permits an appropriate officer of a jurisdiction "in which an untried indictment, information, or complaint is pending" 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 for trial subject to certain conditions not relevant here. The article thus contemplates that a criminal charge be outstanding against a prisoner in the receiving state ...