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United States v. Pistore

United States District Court, S.D. West Virginia, Charleston

May 24, 2018

UNITED STATES OF AMERICA
v.
BRANDON EDWARD PISTORE v.

          MEMORANDUM OPINION

          David A. Faber Senior United States District Judge

         On May 9, 2018, came the defendant, in person and by counsel, Lorena E. Litten, Assistant Federal Public Defender; came the United States by Meredith George Thomas, Assistant United States Attorney; for a hearing on defendant's motion to dismiss the indictment for violation of the Interstate Agreement on Detainers. At the conclusion of that hearing, the court denied defendant's motion. This Memorandum Opinion sets out more fully the reasons for that ruling.

         Background

         On October 3, 2017, a federal grand jury in this district returned an indictment against Brandon Edward Pistore charging him as a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). That same day, the United States lodged a detainer against Pistore with the South Central Regional Jail (“SCRJ”). See ECF No. 35-2. At the time the federal indictment was returned, Pistore was in the custody of the State of West Virginia and being held at the SCRJ as an unsentenced prisoner. See ECF No. 35-2. On November 14, 2017, Pistore was convicted of possession with intent to deliver methamphetamine in the Circuit Court of Kanawha County, West Virginia and sentenced to one to five years. See ECF No. 35-1.

         On November 15, 2017, pursuant to a Writ of Habeas Corpus Ad Prosequendum, see ECF Nos. 6 and 8, Pistore was brought to federal court for an initial appearance on the federal indictment. At the conclusion of that hearing, Pistore was remanded to the custody of the United States Marshals Service (“USMS”). See ECF No. 15. He returned to federal court on November 20, 2017, for an arraignment and detention hearing. See ECF Nos. 16, 17, and 18. At the conclusion of that hearing, Pistore was once again remanded to the custody of the USMS. See ECF Nos. 16 and 17.

         On February 7, 2018, Pistore entered a plea of guilty to the one-count indictment. See ECF Nos. 32, 33, 34, and 36. The court ordered defendant remanded to the custody of the USMS. See ECF Nos. 32, 34, and 36. Although Pistore should have remained in federal custody, he was returned to the custody of the state of West Virginia and, on February 15, 2018, he was transferred to the Salem Correctional Center (“SCC”). See ECF No. 35-3.

         Both the government and defendant agree that Pistore should not have been returned to state custody after entering his guilty plea. At some point, Pistore was transferred from SCC to SCRJ where he remains in the custody of the USMS. In the course of these transfers between SCRJ and SCC, Pistore lost possession of certain personal property.

         Discussion

         “The Interstate Agreement on Detainers Act (IAD), 18 U.S.C. App. § 2, is a compact among 48 States, the District of Columbia, and the Federal Government. It enables a participating State to gain custody of a prisoner incarcerated in another jurisdiction, in order to try him on criminal charges.” Reed v. Farley, 512 U.S. 339, 341 (1994). “The Agreement provides for expeditious delivery of the prisoner to the receiving State for trial prior to the termination of his sentence in the sending State. And it seeks to minimize the consequent interruption of the prisoner's ongoing prison term.” Alabama v. Bozeman, 533 U.S. 146, 148 (2001). To that end, Article IV(e) of the IAD prohibits the return of a prisoner to a sending State before the trial in the receiving State is complete. It provides in pertinent part:

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 pursuant to article V(e) hereof, 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. app. 2 § art. IV(e).[1] This section of the IAD is commonly referred to as the antishuttling provision. See Bozeman, 533 U.S. at 150.

         Pistore argues that the term “trial” in Article IV(e) includes sentencing and that his return to West Virginia custody prior to sentencing violated the antishuttling provision of the IAD. In so arguing, Pistore relies upon a decision from the United States Court of Appeals for the Ninth Circuit in which that court “conclude[d] that the terms `trial' and `final disposition' as used in the IAD encompass sentencing[.]” Tinghitella v. California, 718 F.2d 308, 311 (9th Cir. 1983); see also Walker v. King, 448 F.Supp. 580, 588 (S.D.N.Y. 1978) (“We therefore hold that the only interpretation of the Act [IAD] which is consistent with the Congressional intent and purposes is one which requires a state which has taken custody of a prisoner for purposes of resolving an untried indictment to sentence that prisoner before returning him to the original place of imprisonment.”).

         In a persuasive opinion, the United States Court of Appeals for the Tenth Circuit considered the issue before this court, albeit in the context of a habeas proceeding, and concluded “that trial under the IAD's anti-shuttling provisions does not include sentencing.” United States v. Coffman, 905 F.2d 330, 332 (10th Cir. 1990). In so concluding, the Coffman court noted its disagreement with the Tinghitella decision:

The Ninth Circuit reached its result in Tinghitella by analogizing the term “trial” in the IAD to “trial” under the sixth amendment, which includes sentencing. Id. at 311 (citing Walsh v. United States, 423 F.2d 687, ...

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