United States v. Ross, Jimmie, Jr. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4035
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JIMMIE ROSS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 20039--Michael P. McCuskey, Judge.
Argued NOVEMBER 1, 2000--Decided March 14,
2001
Before CUDAHY, COFFEY, and EASTERBROOK,
Circuit Judges.
COFFEY, Circuit Judge. On June 3, 1998,
a federal grand jury sitting in the
Central District of Illinois returned a
one-count indictment charging Jimmie
Ross, Jr., with being a felon in
possession of a firearm, in violation of
18 U.S.C. sec. 922(g)(1)./1 After the
district judge denied his motion to
dismiss the indictment due to alleged
violations of the Interstate Agreement on
Detainers (IAD),/2 Ross entered into a
written plea agreement in which he
retained the right to challenge the
denial of his motion to dismiss. On
November 22, 1999, the district court
sentenced Ross to 63 months’
imprisonment, three years’ supervised
release, and a special assessment of
$100. We affirm.
I. BACKGROUND/3
Prior to being the subject of this
federal indictment, Ross was charged in
Illinois state court with unlawful
possession of a controlled substance. On
June 8, 1998, Ross entered a plea of
guilty to the state charge of possession
of a controlled substance and was
sentenced to a term of three years’
imprisonment. On June 11, 1998, a federal
detainer/4 was lodged against Ross with
the Sheriff of Champaign County,
Illinois, in conformance with the IAD. On
August 10, 1998, Ross delivered to Paul
Barnett, the warden of the Danville
Correctional Facility, a written demand
for a final disposition of the federal
charges then pending in conformance with
Article III(a) of the IAD. The demand for
final disposition Ross delivered to the
warden was accompanied with a pre-printed
cover memorandum citing the relevant
portions of the IAD. It said, in
pertinent part:
(b) The written notice and request for
final disposition . . . shall be given or
sent by the prisoner to the warden . . .
or other official having custody of him,
who shall promptly forward it together
with the certificate to the appropriate
prosecuting official and court by
registered or certified mail, return
receipt requested.
(c) The warden . . . 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.
(d) . . . The warden . . . or other
official having custody of the prisoner
shall forthwith notify all appropriate
prosecuting officers and courts in the
several jurisdictions within the state to
which the prisoner’s request for final
disposition is being sent of the
proceeding being initiated by the
prisoner. Any notification sent pursuant
to this paragraph shall be accompanied by
copies of the prisoner’s written notice,
request, and the certificate. If trial is
not had on any indictment, information or
complaint contemplated hereby prior to
the return of the prisoner 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.2 sec. 2; see also 730 ILCS
5/3-8-9. Despite the requirement in the
IAD that the warden should "promptly
forward" the prisoner’s request for final
disposition to the appropriate federal
prosecutor, the Danville warden merely
drafted a certificate of confinement and
returned the demand for final disposition
and certificate of confinement to Ross.
After 180 days had passed since Ross had
sent his demand for final disposition to
the warden (which was returned to him),
Ross inquired about the status of his
detainer and learned that no action had
been taken to forward either his demand
for final disposition or certificate of
confinement. Taking the matter into his
own hands, Ross filed his demand for
final disposition with the Clerk for the
U.S. District Court for the Central
District of Illinois on March 29, 1999.
The court forwarded a copy of the demand
for final disposition to Assistant United
States Attorney Richard N. Cox, and, as a
result, Ross was arraigned shortly
thereafter in federal district court on
April 22, 1999.
Prior to entering a guilty plea on July
23, 1999, Ross attended his arraignment
and five additional pre-trial hearings in
federal court on June 7, June 10, June
14, July 15, and July 16, 1999. He
appeared at each of these proceedings
pursuant to a writ of habeas corpus ad
prosequendum. Each writ contained the
following directive:
We command you, the Warden of the
Illinois Department of Corrections,
Danville Correctional Center, and the
United States Marshal for the Central
District of Illinois, to transport the
said Jimmie Ross, Jr., . . . in the
United States District Court . . . [on a
certain date] . . . and then and there to
appear in connection with this cause and
then and there to present the defendant
before the court and from day to day
thereafter as may be necessary, and after
the said Jimmie Ross, Jr. has so then and
there appeared, that you return the said
Jimmie Ross, Jr. to the Illinois
Department of Corrections, Danville
Correctional Center . . . .
At each of the hearings, the judge
ordered Ross to be transferred back to
state custody at Danville. However, it is
undisputed that Ross was never removed
from the Danville facility for more than
a portion of a single day for the purpose
of attending any of the six hearings
stemming from the federal charge pending
against him.
On July 12, 1999, Ross filed a motion to
dismiss and a motion to hold an
evidentiary hearing in which he alleged
the following two violations of the IAD:
(1) that he was not brought to trial
within 180 days of the date he formally
requested a final disposition of the
federal case by giving a written notice
to the warden at the Danville
Correctional Center; and (2) that the six
separate writs of habeas corpus ad
prosequendum that the federal court had
used to remove him from Danville for
hearings in federal court violated the
"anti-shuttling" provision (Article
IV(e)) of the IAD.
In this motion, Ross acknowledged that
his first argument had been considered
and rejected by the United States Supreme
Court in Fex v. Michigan, 507 U.S. 43(1993). Similarly, Ross conceded that
this court had previously considered and
rejected the merits of his second
argument in United States v. Roy, 830
F.2d 628, 635-37 (7th Cir. 1987). Ross
asserted that he had filed the motion in
order to preserve both issues for
appellate review.
Given Ross’s admissions as to the
controlling nature of Fex and Roy, the
district court denied the motion to
dismiss without holding an evidentiary
hearing. In ruling against the motions,
the trial judge stated:
I do believe that no further argument is
necessary. The, the [sic] attorneys have,
have [sic] both briefed and cited the
issues for the Court, and I certainly can
understand the defendant’s belief that
the warden of the Illinois Department of
Corrections facility should have
forwarded this. But at this point, the
Court sees no case law that requires the
warden to do things for the defendant. In
effect, the case law is clear that it’s
the defendant’s responsibility and
obligation to be filing matters with the
clerk of the Court of the United States.
And, of course, by raising this issue,
while it may have previously been
litigated before the Seventh Circuit, I
certainly don’t want to deprive the
defendant of the opportunity to revisit
and reconsider its holdings in the case
of United States v. Roy, 830 F.2d 628,
and certainly allow the defendant to have
the opportunity to have Fex v. Michigan,
which is a United States Supreme Court
case [at] 507 U.S. 43, a 1993 Supreme
Court case, reviewed.
However, this Court believes that it, as
a trial court, has no authority to
reverse the Seventh Circuit or the United
States Supreme Court in any way. So, I
will allow those decisions to stand.
On appeal, Ross once again raises the
same two arguments.
II. DISCUSSION
A. "Speedy Trial" Argument
With regard to Ross’s argument that the
180-day time limit begins to run on the
day that the warden or prison staff is in
receipt of a demand for final decision
rather than on the date when the demand
for final decision is filed with the
appropriate federal court and prosecutor,
the Supreme Court has previously ruled on
this issue. And, as Ross admits, the
United States Supreme Court has rejected
this argument in Fex v. Michigan, 507
U.S. 43 (1993). In Fex, the Supreme Court
interpreted the statutory language of the
IAD and held that:
[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 prosecuting officer of the
jurisdiction that lodged the detainer
against him.
Id. at 52. It is a basic principle of law
that courts of appeal do not have the
authority to overrule a Supreme Court
decision, Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S.
528, 542 (1985), and, therefore, we deny
Ross’s appeal on the speedy trial
issue./5
B. "Anti-shuttling" Argument
Ross next claims that his indictment
should have been dismissed because of a
violation of the "anti-shuttling"
provision contained in Article IV of the
IAD. Ross specifically claims that
Article IV(e) of the IAD is violated
whenever a prisoner is removed from one
jurisdiction (in this case, the State of
Illinois) to face charges in another jur
isdiction (in this case, the federal
government), and the charges in the
receiving jurisdiction (the federal
government) are not disposed of prior to
the prisoner being returned to the
original jurisdiction (Illinois). Ross’s
argument is based on the following
language in Article IV(e) of the IAD,
commonly referred to as the "anti-
shuttling" provision. This provision
states that:
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.
18 U.S.C. App.2 sec. 2. Ross argues that
his brief periods of confinement in
federal custody on six separate
accessions required trial of the pending
federal charge against him prior to his
return to state custody in Illinois. In
so arguing, Ross is specifically
requesting that we overrule our decision
in United State v. Roy, 830 F.2d 628 (7th
Cir. 1987).
In Roy, a state prisoner claimed that an
overnight stay in federal custody for the
purposes of attending a hearing on
federal charges lodged against him
"necessitated trial of all federal
charges pending against him prior to his
return to state custody." Id. at 635. We
rejected this argument and held that
there was no real interruption of Mr.
Roy’s state imprisonment resulting from
his overnight stay in Bridgeport, we find
that there was no violation of the anti-
shuttling provisions of article IV of the
IAD.
Id. at 637. The holding in Roy was based
upon our determination that the brief
overnight transfer did not threaten the
prisoner’s rehabilitation efforts. Id. at
636. "The IAD was meant to protect the
prisoner against endless interruption of
the rehabilitation programs because of
criminal proceedings in other
jurisdictions." Id.In the present case, Ross complains of
six transfers in which he was returned to
state custody on the same day that he was
removed from the Danville prison. Ross
does not allege, and the record does not
support, that these trips interfered with
his rehabilitation. We hold that the
handful of day trips Ross experienced
does not constitute the "endless
interruption" of rehabilitation that the
IAD was designed to guard against and
reaffirm our holding in Roy. Finally, we
note that our decision is consistent with
a majority of other circuits that have
held that brief interruptions in state
prison confinement for the purpose of
attending proceedings in federal court do
not violate the IAD, particularly where
the prisoner is returned to state custody
on the same or following day. United
States v. Daniels, 3 F.3d 25, 27 (1st
Cir. 1993); United States v. Roy, 771
F.2d 54, 60 (2nd Cir. 1985); Sassoon v.
Stynchombe, 654 F.2d 371, 374-75 (5th
Cir. 1981); United States v. Taylor, 173
F.3d 538 (6th Cir. 1999), cert. denied,
120 S. Ct. 448 (1999); Baxter v. United
States, 966 F.2d 387, 389 (8th Cir.
1992); and United States v. Johnson, 953
F.2d 1167, 1171 (9th Cir. 1992).
The decision of the district court is
AFFIRMED.
/1 At the time of the indictment, Ross was in the
custody of Illinois state prison officials on a
pending state charge of possession of a con-
trolled substance.
/2 The IAD is a compact entered into by 48 states,
the United States, and the District of Columbia
to coordinate the disposition of outstanding
criminal charges brought against prisoners incar-
cerated in other jurisdictions. There are two
relevant provisions of the IAD to this case,
Article III(a) and Article IV(e). Article III(a)
provides that a prisoner may formally demand that
criminal charges pending in another jurisdiction
be brought to trial within 180 days. Article
IV(e) states that:
If trial is not had on any indictment, informa-
tion, 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.
/3 The facts underlying Ross’s crime are not rele-
vant to his appeal. In entering into a plea
agreement, Ross attested that the following facts
were true:
Prior to April 24, 1998, the defendant was con-
victed of a crime punishable by more than one
year of imprisonment. Also before that day, a
warrant had been issued for the defendant’s
arrest in connection with another matter. During
the afternoon of April 24th, officers from the
Champaign Police Department observed defendant
driving a vehicle and attempted to apprehend him
on that warrant. A short chase ensued in which
the defendant’s automobile crashed into several
other automobiles. The defendant then fled on
foot and was later apprehended by officers.
Following his arrest, officers found a magazine
containing seven rounds of .380 caliber ammuni-
tion in one of his pants pockets. Officers also
found a Lorcin .380 caliber semi-automatic pis-
tol, bearing serial number 358661, under one of
the cars that the defendant had crashed into.
Defendant was later interviewed and admitted
earlier possessing the recovered firearm. This
firearm had previously traveled in interstate
commerce.
/4 A detainer is "a request filed by a criminal
justice agency with the institution in which a
prisoner is incarcerated, asking that the prison-
er be held for the agency, or that the agency be
advised when the prisoner’s release is imminent."
Fex v. Michigan, 507 U.S. 43, 44 (1993).
/5 In fact, Ross’s appellate brief specifically
states:
For Mr. Ross to get any relief under Article III
of the IAD, the Supreme Court would have to
overturn Fex. Mr. Ross is therefore raising this
issue to preserve it for a writ of certiorari
should this Court deny Mr. Ross the relief he
seeks on his other issue.