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April 15, 1999


The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.


Defendant Moshe Zfaty moves to dismiss the felony information against him under the Interstate Agreement on Detainers ("IAD"), 18 U.S.C.App., 2 § 2, because of the Government's failure to bring him before this Court until a year after he requested action on the matter in June 1997. For the reasons stated below, Zfaty's motion is granted.


On February 2, 1995, Moshe Zfaty, who was confined on state charges at the Mid-Orange Correctional Facility in Warwick, New York ("Mid-Orange"), was interviewed by an Immigration and Naturalization Service ("INS") agent. Zfaty provided the INS with an affidavit acknowledging that he had been deported from the United States to Israel in 1992, and had reentered without first obtaining permission from the Attorney General. On March 15, 1995, the Federal Government filed a criminal complaint against Zfaty, charging him with illegally reentering the United States after being deported subsequent to a felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). Magistrate Judge Mark D. Fox issued an arrest warrant the same day.

On July 6, 1995, upon the Government's application, Magistrate Judge Fox issued a writ to the United States Marshals Service ("USMS") and Mid-Orange, where it was believed Zfaty was still being held, to produce him in federal court to be presented on the federal complaint. When service of the writ was attempted, however, the USMS learned that on May 17, 1995, Zfaty had been released from Mid-Orange to the New York state parole authorities. Prior to obtaining the writ, the USMS had not been notified that Zfaty was in state custody, and had not been requested to file a detainer against him. When the INS attempted to locate Zfaty through New York State parole authorities, it learned that shortly after his release from custody Zfaty had absconded from his parole supervision, and that a warrant for his arrest had been issued in June 1995.

In March 1996, Zfaty was arrested on New York State robbery, burglary, and grand larceny charges. In December 1996, he received a sentence of 3 ½ to 7 years' imprisonment on the burglary charges. On January 14, 1997, Zfaty was again interviewed by the INS, and provided another affidavit in which he acknowledged having illegally reentered the United States after deportation. In March 1997, the INS obtained an immigration detainer against Zfaty, who was at that time participating in a state prison drug program at Cape Vincent, New York. The detainer rendered Zfaty ineligible to participate in the drug program, and he was transferred to Gouverneur Correctional Facility. On June 5, 1997, Zfaty wrote the INS case agent, indicating his willingness to waive deportation formalities and his desire for prompt deportation to Israel.

On June 19, 1997, a copy of the March 15, 1995 arrest warrant and an INS civil deportation detainer were lodged against Zfaty at Gouverneur Correctional Facility. The following day, Zfaty, who was being considered for "presumptive work release" was notified that his work release application had been canceled due to outstanding warrants. Zfaty contends that he was not advised of his rights under the IAD, and did not receive any forms or information concerning the procedures required by the IAD. See IAD, 18 U.S.C.App., 2 § 2, Art. III(c) (requiring prison official to inform prisoner of right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based).

A year later, on June 30, 1998, Zfaty again wrote to the Court, requesting prompt action on the warrant. This time, Zfaty's letter was forwarded to Magistrate Judge Fox, who sent a memorandum to the Government that attached Zfaty's June 30 letter and directed that Zfaty be produced for arraignment and assignment of counsel. Zfaty was produced on a writ on August 12, 1998. The information was filed on December 2, 1998. The Government concedes that it should have proceeded with greater alacrity between July 16, 1997, when it received Zfaty's June 27, 1997 letter, and July 22, 1998, when it received Magistrate Judge Fox's memorandum.


Article III(a) of the IAD provides that a person who has "entered upon a term of imprisonment in a penal or correctional institution of a party State" and against whom another party State has lodged a detainer based on untried charges, can request a speedy trial in the State with the outstanding detainer. 18 U.S.C.App. 2, § 2, Art. III(a). Both the United States and the State of New York are "party States" to the IAD. See 18 U.S.C.App. 2, § 2, Art. II; United States v. Paredes-Batista, 140 F.3d 367, 372 (2d Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 143, 142 L.Ed.2d 116 (1998).

Under the IAD, the prisoner "shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officers' jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint." 18 U.S.C.App. 2, § 2, Art. III(a). In addition, "[t]he request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decision of the State parole agency relating to the prisoner." Id. The request for final disposition and the certificate must be sent by registered or certified mail, return receipt requested. Id., Art. III(b). With respect to the IAD, "[t]he warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based." Id., Art. III(c).

Zfaty contends that the March 15, 1995 arrest warrant constituted a detainer within the meaning of the IAD, and that it was lodged against Zfaty on June 19, 1997, when it was served on the Inmate Records Department at Gouverneur Correctional Facility. Further, Zfaty argues, and the Government does not dispute, that he was never properly informed of his rights under the IAD. While Zfaty concedes that his June 27, 1997 letter to the Court did not punctiliously comply with the IAD's procedural requirements, he argues that he substantially complied with the IAD's central requirements, and, as a result, the IAD's remedial provisions should apply. See United States v. Reed, 910 F.2d 621, 624 (9th Cir. 1990).

Our Circuit recently determined that the IAD's procedural requirements should be construed literally. Paredes-Batista, 140 F.3d at 374 ("[T]he 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and the prosecuting officer of the jurisdiction that lodged the detainer against him.") (quoting Fex v. Michigan, 507 U.S. 43, 52, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993)) (emphasis in Paredes-Batista). In Paredes-Batista, while serving a sentence in state custody, the defendant was indicted on a federal illegal reentry charge. Id. at 371. He then escaped from a work-release program and was recaptured approximately five months later. Id. Shortly thereafter, a detainer relating to the federal indictment was served on New York State prison officials, who served a copy on defendant. Id. That detainer advised defendant of his right to demand a speedy trial on the federal charge, which defendant demanded in writing in July 1994 on the detainer form, by signing his alias to a preprinted paragraph that included language stating: "I [do] demand a speedy trial on these charges." Id. In September 1994, defendant's request was faxed from the USMS office in the Western District of New York to the USMS office in the Southern District of New York, but neither the United States Attorney's Office nor the United States District Court for the Southern District of New York apparently received defendant's request. Id. Defendant was released from ...

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