APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-283)
Before Hunter, Weis, and Garth, Circuit Judges.
This appeal presents an issue of first impression: does the Interstate Agreement on Detainers Act (Act)*fn1 apply to a parole violator detainee prior to any parole revocation hearing, and thus prior to the time that parole is actually revoked? The district court answered this question in the affirmative. We reverse, and hold that a putative parole violator held in custody pursuant only to a parole violation warrant does not come within the provisions of the Act.
Robert Dobson, who had been on parole after serving a portion of his state-imposed 7 1/2 to 21 year sentence, was apprehended for violating certain state and federal statutes. After his arrest for committing the state offenses,*fn2 Dobson posted bail pertaining to those offenses only. Despite this posting of bail, Dobson was nevertheless held in state custody as a technical parole violator pursuant to a state parole violation warrant. See Pa.Stat.Ann. tit. 61, § 331.21a(b) (Purdon 1964).
On June 7, 1977, a federal detainer was lodged against Dobson*fn3 in connection with a magistrate's complaint under which Dobson was then charged. Two federal writs of habeas corpus Ad prosequendum issued, and Dobson appeared at a federal bail hearing, and a probable cause hearing. At the conclusion of each proceeding, Dobson was returned to state facilities.
Thereafter, on July 6, 1977, while Dobson was still in state custody, a four-count federal indictment which superseded the magistrate's complaint was returned against Dobson. It charged him in two counts with possession and utterance of counterfeit United States currency,*fn4 possession of a firearm by a felon,*fn5 and possession of methamphetamine with intent to distribute.*fn6 Pursuant to a third writ of habeas corpus Ad prosequendum, Dobson appeared at an arraignment on the indictment. Then, on July 15th, another detainer was lodged by federal officials with state authorities, this time based on the federal indictment. No writ Ad prosequendum was filed after this second detainer was lodged.*fn7
On August 29, 1977, Dobson moved to dismiss the federal indictment on the ground that his return to state custody following each appearance in federal court violated Article IV(e) of the Act.*fn8 The district court agreed with Dobson, and ruled that the Act included within its ambit a parole violator detainee. Accordingly, on September 16, 1977, pursuant to Article IV(e) of the Act, the district court dismissed the federal indictment which had been returned against Dobson.
On November 30, 1977, the Pennsylvania Board of Probation and Parole rescinded its earlier action which had ordered that Dobson's parole revocation hearing be scheduled. Instead the Board determined that Dobson should be continued on parole.
The Act prescribes the procedure that must be followed when one state (here, the federal authority and receiving state) lodges a detainer with another state in which the detainee is incarcerated (here, Pennsylvania, the sending state), and thereafter requests the appearance of the detainee for proceedings in the receiving state.*fn9 Concomitantly, the Act affords certain protections to the detainees who are transferred from one jurisdiction to another. One such protection provides for the dismissal of a receiving state's indictment when the receiving state, before trial in that state, returns a prisoner to the original place of his confinement. Art. IV(e).*fn10
The provisions of the Act however apply only to a "prisoner" who is "serving a term of imprisonment". Art. IV(a).*fn11 Dobson accordingly claims that he, as a parolee whose parole has been threatened with revocation and who is incarcerated pursuant to a parole violation warrant, is indeed "serving a term of imprisonment." He contends that inasmuch as his confinement "stems solely from the existence of a term of imprisonment previously imposed" (the balance of his 7 1/2 to 21 year sentence), he was "serving a term of imprisonment when the Parole Board had achieved his incarceration," and therefore comes within the provisions of the Act. Appellee's Brief at 7.
The Government, on the other hand, argues that the provisions of the Act apply only when imprisonment is pursuant to a final determination of guilt; therefore a parole violation detainer, being temporary and contingent in character, is not the equivalent of such a final determination as would constitute the requisite condition prescribed by the statute, namely service of a term of imprisonment. Government's Brief at 6. While we are not attracted to any of the other arguments made by the Government in its brief, we are persuaded ...