reflected that Persinger was in federal custody when he was returned to the Jail on November 19, 1981.
On December 15 and 29, 1981, and February 18, 1982, defendant Persinger was brought to federal court for pretrial hearings by deputy marshals pursuant to writs issued for each of those days. In each instance a deputy marshal returned the defendant to the Jail without designating him a federal prisoner.
Persinger's trial on the federal charges took place on February 22-25, 1982. On each trial day a deputy marshal obtained custody of the defendant by means of a writ and on each day returned him to the Jail without designating him a federal prisoner. The defendant was convicted of several of the federal charges on February 25, 1982, but again was returned to the Jail where he was serving state prison sentences.
On April 12, 1982, the defendant having completed serving the sentences imposed by Pennsylvania state courts, the authorities at the Jail changed their records to indicate that Persinger then was being held as a federal prisoner.
Persinger was in that status when he was sentenced on June 3, 1982. On that date, the Honorable Rabe F. Marsh, who had presided over Persinger's trial, sentenced him to certain terms of imprisonment and specified that the imprisonment was to be deemed to have begun on the date he was "received into federal custody."
Following the sentencing proceeding on June 3, 1982, the office of the United States Attorney learned for the first time that, contrary to the oral custody order of the United States Magistrate on November 19, 1981, the deputy marshal had not designated Persinger a federal prisoner upon returning him to the Jail after his arraignment. The United States Attorneys' office promptly alerted Persinger's attorney to the possibility that a violation of the IAD had occurred. Subsequently, the defendant filed the pending motion to dismiss, and an evidentiary hearing was held before Judge Marsh.
The question before us is whether the aforesaid failure of the deputy marshal to advise the authorities at the Jail upon the return of the defendant to that institution that the defendant was to be retained as a federal prisoner resulted in the return of the defendant to state custody within the meaning of the IAD where the United States Magistrate at the arraignment of the defendant had ordered that he be retained in federal custody and had so directed the deputy marshal temporarily in charge of the defendant. If the magistrate's oral order is controlling, then no violation of the IAD occurred and the defendant's indictment and conviction will stand. If, on the other hand, the defendant's custody-status properly is controlled by the aforesaid acts and omissions of the deputy marshal, then the motion to dismiss must be granted and the defendant released.
Congress enacted the IAD in 1970 in order to authorize the United States to join with many of the states in eliminating some of the problems associated with the transfer of a prisoner from a state or territory of incarceration to a jurisdiction seeking to prosecute him. U.S. v. Williams, 615 F.2d 585, 588 (3d Cir. 1980).
Under Article IV(e) of the IAD, severe sanctions are imposed on a state which takes custody of a prisoner held by another state and which fails thereafter to dispose of its charges against him before returning him to the original place of imprisonment.
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 . . . 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. at 362 (1982 Supp.); see U.S. ex rel. Esola v. Groomes, 520 F.2d 830 (3d Cir. 1975).
The defendant argues that under Article IV(e) of the IAD, once the deputy marshal obtained temporary custody over the defendant and removed him from the Jail under the writ for a proceeding relative to the pending federal charges, the government was obliged to retain custody over him until he was tried on those charges, otherwise those charges must be dismissed with prejudice. In support of this position, he cites U.S. v. Williams, supra, and U.S. v. Sorrell, 413 F. Supp. 138 (E.D. Pa. 1976); aff'd, 562 F.2d 227 (3d Cir. 1977).
In Williams, the Third Circuit in holding that an alleged violation of the IAD is the type of fundamental defect cognizable in a proceeding under 28 U.S.C. § 2255, stated:
Inasmuch as Mauro [ United States v. Mauro, 436 U.S. 340, 98 S. Ct. 1834, 56 L. Ed. 2d 329 (1978)] established that a transfer from a state to a federal jurisdiction by writ of habeas corpus ad prosequendum is a transfer within the meaning of [IAD] Article IV, the failure of the federal court to try the prisoner before returning him to state custody would be a violation of the Act meriting dismissal of the charges against him. As we have alluded, the defense to the indictment is absolute under the Act when the Government violates Article IV. (Matter in brackets and emphasis added).