United States District Court, S.D. West Virginia, Charleston
A. Faber Senior United States District Judge
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.
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.
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.
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.
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.
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
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
18 U.S.C. app. 2 § art. IV(e). This section of the IAD is
commonly referred to as the antishuttling provision. See
Bozeman, 533 U.S. at 150.
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.”).
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, ...