Appeal from judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing indictment, prior to retrial after remand, because of the government's violation of defendant's rights under the Interstate Agreement on Detainers Act, 18 U.S.C. App. pp. 545-48 (1982). The court ruled that although the defendant had failed to raise the question prior to his first trial, there was no waiver. Affirmed.
Kaufman, Kearse, and Pierce, Circuit Judges.
The United States appeals from a judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, dismissing the indictment against David Lawson on the ground that, by transferring Lawson -- then a state prisoner -- back and forth between state and federal custody numerous times before Lawson was tried on federal charges, the government violated Lawson's rights under the Interstate Agreement on Detainers Act ("IAD"), 18 U.S.C. App. pp. 545-48 (1982). The government concedes that the retransfers to state custody violated the IAD, but it argues that Lawson waived his right to assert such a claim. The district court, in a thorough opinion dated April 29, 1983 ("D. Ct. Opinion"), ruled that since Lawson had not "knowingly and intelligently" relinquished his rights, there had been no waiver. Although we apply a different standard, we agree that there was no waiver and we affirm the judgment.
In May 1980, Lawson was indicted on three counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a), (b), and (d) (1976). At that time, Lawson was serving a sentence in a New York State prison on a state robbery conviction, and on June 2, the government filed a detainer against him. Thereafter, Lawson was transferred to federal custody seven times, and returned to state custody each time, before he was brought to trial on the federal bank robbery charges.
Following this shuttling, Lawson was tried and convicted in the district court. He successfully appealed his conviction, however, and his case was remanded for a new trial. See United States v. Lawson, 683 F.2d 688 (2d Cir. 1982). Prior to his new trial, Lawson moved to dismiss the indictment on the ground, asserted for the first time, that the earlier transfers of custody had violated his rights under Article IV(e) of the IAD. Article IV(e) provides that once a prisoner is transferred to a jurisdiction that has filed both a detainer and a written request for temporary custody, if he is not tried in the new jurisdiction prior to his return to the original jurisdiction, the charges underlying the detainer must be dismissed:
If trial is not had on any indictment, information, or complaint. . . [underlying the detainer] prior to the prisoner's being returned to the original place of imprisonment . . ., 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.
18 U.S.C. App. p. 546. The government argued, inter alia, that Lawson had waived his IAD rights either (1) by failing to assert them prior to his first trial or on appeal, or (2) by having requested to be returned to state custody after his transfers to federal custody.
After finding that Article IV(e) had been violated, the district court ruled, for the reasons discussed in Part II.A. of this opinion, that Lawson's IAD rights had not been waived for failure to file a motion at an earlier time. Then, analyzing certain of this Court's decisions as requiring application of the constitutional standard of waiver set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938), the court considered whether there had been a knowing and intelligent waiver, and found there had not. The court found that although some of Lawson's transfers to federal custody had resulted from his numerous requests for assignment of new counsel to represent him, on no occasion did Lawson ask to be returned to state custody. The court pointed out that although the government had had ample time to augment the record, it had presented no evidence that Lawson ever instigated his return to state custody or even knew of his rights under the IAD. Pursuant to the mandate of Article IV(e), therefore, the court dismissed the indictment.
The government concedes that Article IV(e) of the IAD was violated in this case, and hence the only issues on this appeal are (1) whether Lawson's failure to raise his IAD claim prior to his first trial or on appeal bars him from raising the claim following the remand for a new trial, and (2) if not, whether Lawson waived his IAD claim by reason of his actions relating to his transfers between ...