The opinion of the court was delivered by: LORD, III
Defendant has been charged in a two count indictment with unlawful possession of a firearm. He has moved to dismiss the indictment with prejudice. We will grant the motion.
On April 19, defendant was again brought into this court for trial by writ of habeas corpus ad prosequendum. However, at the request of his newly appointed counsel, we granted a continuance for one week and defendant was again returned to SCIG. On April 26, when the continued trial was scheduled, defendant filed the present motion.
Defendant argues that a prisoner serving a state sentence can be brought to court to answer a federal charge only by the invocation of the Interstate Agreement on Detainers, 18 U.S.C. App.; 19 P.S. §§ 1431 et seq. ("Agreement"). That Agreement, defendant points out, provides two things, inter alia : (1) a mandatory period of thirty days within which the governor of the state of confinement may disapprove the request for temporary custody, Agreement, Article IV(a); and (2) unless trial is had on the indictment before the prisoner is returned to his original place of imprisonment, the indictment shall be dismissed with prejudice. Agreement, Article IV(e). Defendant's argument is pitched on the second of these provisions.
Preliminarily, we note that as used in the Agreement, the term "State" means, inter alia, the United States of America. Agreement, Article II(a). Thus, a transfer of a state inmate to the federal authorities, under the terms of the Agreement, is a transfer from one state to another.
In United States ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975), the relator was serving a federal sentence at Danbury, Connecticut. On April 21, 1971, he was transferred by writ of habeas corpus ad prosequendum to New Jersey to stand trial. On April 27, 1971, he was returned to Danbury without having been tried. Thereafter, by unspecified procedures, Esola was returned to Monmouth County on June 10, 1971, September 25, 1971, and January 6, 1972 for trial. During the January transfer he was tried and convicted. After exhausting state remedies attacking the validity of his conviction, Esola sought federal habeas corpus. The district court dismissed the petition. On appeal, New Jersey argued, as the government does here, that because the transfers were pursuant to writs of habeas corpus and not under the Agreement, the provisions of the Agreement were not relevant. In rejecting this argument, the court said, at page 837:
"* * * Were we to hold, as New Jersey urges, that the machinery of the Agreement is not the exclusive means of effecting a transfer for the purpose of prosecution on these allegations, then Article IV(c), requiring prosecution within 120 days of arrival, and Article IV(e), allowing for only one rendition, would be meaningless.
"Our holding that the Agreement provides the exclusive means of transfer when it is available was foreshadowed by and is fully consistent with the recent case of Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1974)."
We see no room for doubt that at least in this circuit, the Agreement is the exclusive method for transfer of a state prisoner to another state (including, under the Agreement, the United States) for any phase of prosecution in the transferee state.
Of course, arraignment is an integral part of the prosecution, for without it there can be no trial.
Our conclusion in this respect is buttressed by the avowed purpose of the Agreement, as explicated in Esola, 520 F.2d at pages 836-837:
"* * * The purpose of the provision which this case brings into issue is to minimize the adverse impact of a foreign prosecution on rehabilitative programs of the confining jurisdiction. When a prisoner is needlessly shuttled between two jurisdictions, then any meaningful participation in an ongoing treatment program is effectively foreclosed for two reasons. First, participation requires physical presence and the continuous physical presence of a prisoner is not possible when multiple trips to a foreign jurisdiction are made. Secondly, the ...