United States v. Brewington, Randall ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1899
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RANDALL BREWINGTON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 05 CR 142—Larry J. McKinney, Judge.
____________
ARGUED DECEMBER 11, 2007—DECIDED JANUARY 18, 2008
____________
Before POSNER, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. In early 2006, while serving a
state prison sentence in Indiana, Randall Brewington
received word that he had been indicted on criminal
charges in federal court. The notice he received was in
a detainer filed against him by the United States
Marshal. Upon its filing, Brewington tried to assert his
rights under the Interstate Agreement on Detainers
(IAD), which would have required that he be brought
to trial within 180 days of the receipt of his demand by
the “prosecuting officer” and the “appropriate court.” The
“prosecuting officer,” here the office of the United States
Attorney for the Southern District of Indiana, received
Brewington’s demand, but for reasons not apparent in
2 No. 07-1899
the record, the “appropriate court,” the United States
District Court for the Southern District of Indiana, never
did. When Brewington was brought to court more than
180 days after the U.S. Attorney received his demand,
he moved to dismiss the indictment, claiming a violation
of his rights under the IAD. Because the district court
had not received Brewington’s demand, his motion was
denied. After losing out on his motion, Brewington entered
a guilty plea to a charge of possession of a firearm by a
felon but reserved his right to challenge on appeal the
denial of his motion to dismiss. Brewington now appeals
from the order denying his motion.
Brewington, a felon, was arrested in January 2005 on a
state probation violation. At the time of his arrest, he
was in possession of a firearm and ammunition. As a
result, his probation was revoked, and he was returned
to state custody with a release date set some time in 2009.
In September 2005, Brewington was indicted in federal
court on separate counts of possession by a felon of a
firearm and ammunition. See 18 U.S.C. § 922(g)(1). He
was informed of the indictment on February 24, 2006,
when state prison officials gave him a standard-form
detainer issued by the United States Marshal. On the
form, Brewington exercised his right under the IAD to
demand a speedy trial, and his demand was received by
the U.S. Attorney’s office on March 7, 2006. It is undis-
puted, however, that the district court never received a
copy of the demand. The record does not reveal why it
was not received, but Brewington suggests, without
supporting evidence, that it was the fault of Indiana
prison officials who sent the demand only to the U.S.
Attorney.
About 7 months after receiving Brewington’s demand,
the U.S. Attorney procured a writ of habeas corpus ad
prosequendum and brought Brewington in for an initial
appearance in federal court. The appearance took place
No. 07-1899 3
on October 13, 2006, and Brewington moved for dismissal
of the indictment because 220 days had passed since the
U.S. Attorney received his IAD demand for a speedy trial.
In denying the motion, the district court concluded that
the 180-day clock did not start running until both the
court and the prosecutor received Brewington’s demand,
and, because that didn’t happen here, no time had expired.
In relevant part, the IAD requires that a prisoner be
brought to trial “within one hundred and eighty days
after he shall have caused to be delivered to the prosecut-
ing officer and the appropriate court of the prosecuting
officer’s jurisdiction written notice of the place of his
imprisonment and his request for a final disposition to be
made of the indictment, information, or complaint.” 18
U.S.C. App. 2, § 2, art. III(a). Interpretation of this
provision begins (and in this case ends) with the Supreme
Court’s opinion in Fex v. Michigan, 507 U.S. 43 (1993),
where the Court held that the 180-day clock “does not
commence until the prisoner’s request for final disposi-
tion of the charges against him has actually been de-
livered to the court and prosecuting officer of the juris-
diction that lodged the detainer against him.” Id. at 52.
Prison authorities are charged with sending the demand
to the prosecutor and the court, but the prisoner bears
responsibility for ensuring that his jailors follow through.
See id. at 49. Indeed, the form that Brewington signed
contains language acknowledging his understanding of
this aspect of the IAD: “I further understand . . . that
I must periodically inquire as to whether my written
notice of request for a final disposition of the charges
against me has been received by the appropriate U.S.
Attorney and the appropriate U.S. District Court.”
Brewington apparently recognizes that the quoted
language from Fex dooms his argument, but even though
that language follows the words “[w]e hold that,” he
contends that it is only dicta. He cites two cases decided
4 No. 07-1899
before Fex for the proposition that a diligent prisoner
should not lose out on the benefits of the IAD simply
because prison authorities have failed to fulfill their
duties under the agreement. See United States v. Reed,
910 F.2d 621, 625-26 (9th Cir. 1990); United States v.
Hutchins, 489 F. Supp. 710, 715-16 (N.D. Ind. 1980). But
the Supreme Court rejected this argument in Fex when
it held that, even if delivery of the notice is delayed due
to negligence or malice on the part of prison authorities,
the IAD’s clock does not start running until the notice is
actually received by both the prosecutor and the court.
Fex, 507 U.S. at 49-50. The Ninth Circuit has explicitly
recognized that Fex defrocked Reed. United States v.
Johnson, 196 F.3d 1000, 1002 (9th Cir. 1999).
Brewington also notes the IAD’s command that it be
liberally construed, 18 U.S.C. App. 2, § 2, art. IX, but he
does not explain how this command can overcome Su-
preme Court precedent. As we have previously held, “[t]he
IAD, and the interpretation set forth in Fex, is literal: the
executed detainer is ‘to be delivered to the prosecuting
officer and the appropriate court.’” Jones, 454 F.3d at 649
(quoting 18 U.S.C. App. 2, § 2, art. III(a)).
Finally, Brewington argues that requiring the delivery
of the demand to the court serves no purpose and that
providing notice only to the prosecutor should be enough
to start the running of the IAD clock. True, this might
be a good argument for rewriting the IAD, but it is beside
the point because the IAD, as it presently reads, doesn’t
allow for that possibility. See Fex, 507 U.S. at 52 (“Peti-
tioner’s ‘fairness’ and ‘higher purpose’ arguments are, in
other words, more appropriately addressed to the legisla-
tures of the contracting States, which adopted the IAD’s
text.”).
It should also be noted that even if the IAD’s 180-day
clock had expired, the district court might not have
dismissed Brewington’s indictment with prejudice as he
No. 07-1899 5
requested. When the United States is the receiving state,
as it is here, the district court has discretion to remedy
an IAD violation by dismissal with or without prejudice.
18 U.S.C. App. 2, § 9(1). Here, the seriousness of the
charge and the lack of evidence of bad faith by the gov-
ernment might very well have moved the court to only
enter a dismissal order without prejudice. Cf. United
States v. Kelley, 402 F.3d 39, 41-42 (1st Cir. 2005) (affirm-
ing dismissal without prejudice for IAD violation be-
cause seriousness of offense and lack of bad faith by
government outweighed possible prejudice to defendant);
United States v. McKinney, 395 F.3d 837, 841-42 (8th Cir.
2005) (affirming dismissal without prejudice for IAD
violation based on seriousness of offense, lack of bad
faith by government, and lack of prejudice to defendant).
In closing, we note that counsel for the government,
when asked during oral argument why Brewington’s
demand provoked no response, was unable to supply a
clear answer. Perhaps, he said, it was because the respon-
sibility for acting upon IAD demands is not vested in one
person within his office but instead is “diffused.” And
therein, we think, lies the problem. Although the gov-
ernment comes out of this case with a “win,” it’s a tar-
nished one. Its handling of Brewington’s demand under
the IAD is nothing to be proud of.
For these reasons, we AFFIRM the judgment of the
district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-08