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UNITED STATES v. PERSINGER

October 25, 1982

UNITED STATES OF AMERICA
v.
FRANK OWEN PERSINGER



The opinion of the court was delivered by: DIAMOND

 Presently before the court is the defendant's motion to dismiss the above-captioned criminal action. The motion will be denied.

 BACKGROUND

 The defendant contends that the continuous custody article of the Interstate Agreement on Detainers, 18 U.S.C. App. at 360 (1982 Supp.) (IAD) requires that this action be dismissed because after he had been obtained from state custody for arraignment in the instant criminal proceeding he was returned to state custody before the case was tried.

 The stipulated facts relevant to this motion may be stated as follows:

 The defendant, Frank Owen Persinger, was arrested on October 9, 1981, by Allegheny County, Pennsylvania, authorities on various state criminal charges and lodged in the Allegheny County Jail (Jail) in Pittsburgh, Pennsylvania, pending disposition of those charges.

 On the same date, a federal detainer was lodged against Persinger on the basis of a warrant issued by the United States District Court for the Western District of Pennsylvania pursuant to a complaint charging the defendant with interstate transportation of stolen travelers checks.

 The defendant was taken into federal custody on October 27, 1981, on the federal complaint under a writ of habeas corpus ad prosequendum (writ) for an initial appearance before a United States Magistrate pursuant to Rule 5, Fed. R. Crim. P. At the conclusion of this proceeding the defendant was transported to the Jail and returned to state custody. *fn1"

 On November 4, 1981, a federal grand jury sitting in the Western District of Pennsylvania indicted defendant Persinger and another individual on multiple federal charges, including those contained in the aforesaid complaint. Subsequently, on November 19, 1981, pursuant to another writ, Persinger was taken into custody at the Jail by a deputy United States Marshal for arraignment before a United States Magistrate on the indictment returned by the federal grand jury on November 4. The magistrate was well-aware of the IAD, and in a colloquy with the attorney for the government during the arraignment, the magistrate expressed his concern that the continuous-custody requirements of that statute be complied with when the defendant was returned to the Jail following the arraignment. Indeed, at the conclusion of the arraignment, the magistrate specifically instructed the deputy marshal escorting Persinger to "make sure he [the defendant Persinger] stays in federal custody unless the U.S. Attorney's office advises you otherwise." *fn2" (matter in brackets added).

 However, when the deputy marshal returned Persinger to the Jail, the deputy did not inform the warden that the defendant was to be maintained as a federal prisoner and did not log him as a federal prisoner in the marshal's records. As a result, neither the marshal's records nor those of the Jail 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. *fn3" 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 ...


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