United States Court of Appeals

For the First Circuit

No. 09-2607

UNITED STATES OF AMERICA,

Appellee,

v.

HOWARD KELLY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Chief Judge,

Boudin and Howard, Circuit Judges.

Robert M. Greenspan for appellant.

Renée M. Bunker, Assistant U.S. Attorney, with whom

Thomas E. Delahanty II, United States Attorney, was on brief, for

appellee.

November 18, 2011
HOWARD, Circuit Judge. This case involves assessment of

whether an appearance compelled by a writ of habeas corpus ad

prosequendum by one federal district court to the custodian of an

individual detained in another federal district on the basis of

unrelated pending charges triggers the Speedy Trial Act's (STA)

30-day arrest to indictment clock with respect to the charges in

the jurisdiction that issued the writ. This appears to be a

question of first impression. We hold that the STA was not

triggered and affirm the decision of the district court denying the

motion to dismiss the indictment for violation of the STA.

I.

On May 17, 2006, a two-count criminal complaint was filed

in the U.S. District Court for the District of Maine against Howard

Kelly. The complaint alleged that Kelly had committed identity

theft and aggravated identity theft in violation of 18 U.S.C. §§

1028(a)(7) and 1028A(a)(1). An arrest warrant was issued the same

day, but was not executed, as Kelly was not in Maine at the time.

Kelly was in federal custody in New York on different

charges. On October 21, 2005, a complaint had been filed in the

Western District of New York, alleging that Kelly had knowingly and

unlawfully escaped from a halfway house in that district earlier

that month. Kelly was arrested in New Hampshire on that New York

charge on May 9, 2006. The New Hampshire district court held a

detention hearing on May 11, and afterwards ordered that Kelly be

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detained pending trial, and be committed to the custody of the

Attorney General "for transport to the Western District of New

York" to answer the indictment that issued in the Western District

on the same day. Kelly was moved to New York and the New York case

moved forward during the summer of 2006.

Back in Maine, on September 28, 2006, the United States

moved for a writ of habeas corpus ad prosequendum, requesting

Kelly's presence for an initial appearance on October 23, 2006, to

respond to the Maine federal criminal complaint. The writ was

granted by the Maine district court the next day. Kelly was

transported to Maine on October 18, 2006, under the writ, and

appeared before the Maine court. He waived his right to a hearing

and consented to being detained in the District of Maine. He

remained in custody in Maine until Feb 13, 2007, when he was

transported to New York. He was in New York when he was indicted

in Maine on the charges in this case on December 19, 2007.

The prosecution and defense filed, in the Maine action,

two joint motions to exclude time under the STA, on November 27 and

December 26, 2006. These motions represented that "the defendant

wishes to seek additional time to reach an alternate resolution to

this case that would negate the need for an indictment," and that

"the defendant is facing charges in another jurisdiction [New York]

and wishes to seek additional time to reach an alternate resolution

to those cases." The court allowed the motions and its orders

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excluded the time between November 22, 2006, and January 24, 2007,

from the STA calculation.1

Kelly was convicted in New York and sentenced to 54

months imprisonment on May 6, 2008. He was returned to Maine on

July 17, 2008, and was arraigned there on July 25, 2008.

Upon his return to Maine, various proceedings took place

before the district court. Of particular relevance to this appeal

is Kelly's motion, filed on September 8, 2008, for dismissal of the

Maine federal indictment based on an alleged STA violation. Kelly

argued that his initial Maine appearance took place on October 23,

2006, while the indictment was not issued until December 19, 2007,

and that this violated the STA's requirement that the indictment

issue within 30 days "from the date on which such individual was

arrested or served with a summons in connection with such charges." 

18 U.S.C. § 3161(b) (emphasis added). The government opposed the

motion and Kelly requested a hearing, which was held on December 4,

2008.

The magistrate judge issued a report and recommendation

on December 30, 2008, recommending that Kelly's motion to dismiss

the indictment be denied. The magistrate judge first noted that

"[f]rom all that appears in the record, this defendant was never

arrested or served with a summons in connection with the Maine

Other orders were issued in the Western District of New 1

York, excluding various segments of time from the STA period for

that case. 

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charge. Thus, at least technically, the Act appears not to apply

at all." The magistrate judge further noted that even if the STA

did apply, it had not been violated, because the time spent in

Maine was "devoted to an attempt to resolve the New York charge

along with the Maine charge," and as a result was excludable delay. 

See 18 U.S.C. § 3161(h)(1) (excluding "[a]ny period of delay

resulting from other proceedings concerning the defendant,

including but not limited to" eight particular examples). Despite

Kelly's objection, the district court adopted the report and

recommendation on March 26, 2009, explaining that "the delay in

this Maine case resulted from the defendant's attempt to resolve,

while here, the New York escape charge."

On May 28, 2009, Kelly entered a conditional guilty plea

on the Maine charges, but reserved his right to challenge the March

26 order denying his motion to dismiss the indictment based on the

purported STA violation. The district court accepted the plea, and

Kelly was sentenced to a term of 70 months on November 24, 2009. 

Kelly now appeals, raising a single challenge: that the

delay between his appearance in Maine on October 23, 2006, pursuant

to the writ of habeas corpus ad prosequendum, and the issuance of

the Maine indictment on December 19, 2007, violated the STA and

required dismissal of the indictment, pursuant to 18 U.S.C.

§§ 3161(b), 3162(a)(1).

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II.

Because this case involves interaction between the STA

and writs of habeas corpus ad prosequendum, some context for each

may be of use.

A. The Speedy Trial Act

Enacted in 1974 and amended in 1979, the STA imposes a

variety of time limitations designed to ensure a speedy trial. 

First, the STA has a 30-day arrest to indictment requirement, which

requires "[a]ny information or indictment charging an individual

with the commission of an offense" to "be filed within thirty days

from the date on which such individual was arrested or served with

a summons in connection with such charges." 18 U.S.C. § 3161(b). 

The purpose of this requirement "is to ensure that the defendant is

not held under an arrest warrant for an excessive period without

receiving formal notice of the charge against which he must prepare

to defend himself." United States v. Spagnuolo, 469 F.3d 39, 43

(1st Cir. 2006) (quoting United States v. Meade, 110 F.3d 190, 200

(1st Cir. 1997)) (internal quotation marks omitted).

Second, the Act imposes a separate 70-day indictment to

trial requirement, requiring that a trial "commence within seventy

days from the filing date (and making public) of the information or

indictment, or from the date the defendant has appeared before a

judicial officer of the court in which such charge is pending,

whichever date last occurs." 18 U.S.C. § 3161(c)(1).

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Not every calendar day constitutes a "day" for purposes

of the STA, however; certain "periods of delay shall be excluded in

computing the time" under both the arrest to indictment and

indictment to trial sections. Id. § 3161(h). For example, delay

"resulting from other proceedings concerning the defendant," such

as that resulting from the filing of pretrial motions or the

court's consideration of plea agreements, is excluded. Id.

§ 3161(h)(1). The parties may request continuances, which the

court may grant if consideration of several factors supports

granting such a continuance. Id. § 3161(h)(7).

If an indictment or information is not filed within the

30-day limit, the court must dismiss the charges, either with or

without prejudice, based upon consideration of several factors. 

Id. § 3162(a)(1). A similar provision requires dismissal if the

70-day indictment to trial limit is violated. Id. § 3162(a)(2).

The Act also addresses individuals charged with federal

crimes who are already serving a term of imprisonment. Section

3161(j) provides that "[i]f the attorney for the Government knows

that a person charged with an offense is serving a term of

imprisonment in any penal institution, he shall promptly (A)

undertake to obtain the presence of the prisoner for trial; or (B)

cause a detainer to be filed" regarding the prisoner. Id.

§ 3161(j)(1). "When the person having custody of the prisoner

receives . . . a properly supported request for temporary custody

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of such prisoner for trial, the prisoner shall be made available to

that attorney for the Government . . . ." Id. § 3161(j)(4).

B. Habeas Corpus Ad Prosequendum

Habeas corpus ad prosequendum, a writ derived from

English common law, has historically been "issue[d] when it [wa]s

necessary to remove a prisoner, in order to prosecute . . . in any

court, or to be tried in the proper jurisdiction wherein the fact

was committed." 3 William Blackstone, Commentaries *130. In the 2

United States, this writ has "a long history, dating back to the

First Judiciary Act." United States v. Mauro, 436 U.S. 340, 360

(1978). Its issuance is currently authorized by 28 U.S.C.

§ 2241(c)(5), which allows for a writ of habeas corpus to extend to

a prisoner when "[i]t is necessary to bring him into court . . .

for trial."

The writ is "issued directly by a court of the

jurisdiction where an indictment, information, or complaint has

been lodged against the prisoner." Stewart v. Bailey, 7 F.3d 384,

389 (4th Cir. 1993). It operates as "a court order requesting the

prisoner's appearance to answer charges in the summoning

"Habeas corpus" is a "generic term" which includes a

2

variety of "species of that writ." Ex parte Bollman, 8 U.S. 75, 95

(1807). The most commonly seen form is the "Great Writ" of habeas

corpus ad subjiciendum, which allows for an inquiry into the cause

of restraint. Carbo v. United States, 364 U.S. 611, 615 (1961);

Bollman, 8 U.S. at 95. The writ of habeas corpus ad testificandum

is used to bring prisoners "into court to testify." 28 U.S.C.

§ 2241(c)(5); Bollman, 8 U.S. at 98. Other forms exist as well. 

See Bollman, 8 U.S. at 97-98.

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jurisdiction." Id. The writ of habeas corpus ad prosequendum,

like other writs of habeas corpus, is issued to the custodian of

the detained individual.3

The writ allows the issuing court to "obtain temporary 4

custody of the prisoner." Mauro, 436 U.S. at 362. The nature of

the writ is such that "the sending state retains full jurisdiction

over the prisoner since the prisoner is only 'on loan' to the

prosecuting jurisdiction." Flick v. Blevins, 887 F.2d 778, 781 5

(7th Cir. 1989); Stewart, 7 F.3d at 389 ("A prisoner is not even

'in custody' [of the summoning jurisdiction] when he appears in

[that] jurisdiction's court pursuant to an ad prosequendum writ; he

is merely 'on loan' to that jurisdiction's authorities."); Crawford

v. Jackson, 589 F.2d 693, 695-96 (D.C. Cir. 1978) ("When an accused

is transferred pursuant to a writ of habeas corpus ad prosequendum

Here, the writ ordered Kelly's custodian, the Buffalo 3

Federal Detention Facility, as well as the United States Marshal

for the district, to produce Kelly at the date and time specified

in the writ. 

A court issuing a writ ad prosequendum "suffers no 4

geographical limitations" in use of the writ, Carbo, 364 U.S. at

620, and thus may issue such writs to other districts, in contrast

to the Great Writ, which was "issuable only in the district of

confinement," id. at 618.

Based on this reasoning, courts have concluded that where 5

a state prisoner is in federal custody pursuant to such a writ,

that time is credited to the state, rather than federal, sentence. 

See, e.g., Easley v. Stepp, 5 Fed. App'x 541, 543 (7th Cir. 2001);

Crawford v. Jackson, 589 F.2d 693, 695-96 (D.C. Cir. 1978). One

court has similarly concluded that the issuance of such a writ does

not "effect a transfer of custody" for purposes of 18 U.S.C.

§ 751(a), which makes escape from federal custody a crime. United

States v. Evans, 159 F.3d 908, 911-12 (4th Cir. 1998).

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he is considered to be 'on loan' to the federal authorities so that

the sending state's jurisdiction over the accused continues

uninterruptedly," even when the writ is "arguably expired").

III.

We review issues of law under the STA de novo and review

factual determinations for clear error. See United States v.

Pakala, 568 F.3d 47, 57 (1st Cir. 2009).

The government raises three arguments as to why the STA

was not violated. First, it contends that because Kelly's

appearance in Maine was procured via a writ of habeas corpus ad

prosequendum, there was no "arrest" or "summons" within the meaning

of the STA, and thus its requirement that the indictment be issued

within 30 days of such an arrest or summons was never triggered. 

Second, the government asserts that if the Act was triggered, there

was no violation because sufficient time was excludable under

various § 3161(h) exceptions such that the 30-day limit was not

exceeded. Finally, the government argues that even if the 30-day

limit was triggered and exceeded, only a portion of the indictment

should be dismissed. Because we agree with the government's first

argument, we need not consider the latter two.

The STA provides, in relevant part:

Any information or indictment charging an

individual with the commission of an offense

shall be filed within thirty days from the

date on which such individual was arrested or

served with a summons in connection with such

charges. If an individual has been charged

-10-
with a felony in a district in which no grand

jury has been in session during such thirtyday period, the period of time for filing of

the indictment shall be extended an additional

thirty days. 

18 U.S.C. § 3161(b). The question presented here is whether an

appearance under a writ of habeas corpus ad prosequendum

constitutes an "arrest" or "summons" under the STA. We conclude

that it does not. We also find that Kelly's New Hampshire arrest

on the New York charge was not "in connection with" the Maine

charges. Accordingly, the Act's 30-day arrest to indictment

provision was not triggered with respect to the Maine charges.

We begin our analysis by reviewing the plain language of

the STA. The Act, by its terms, applies only where there is an

"arrest" or service of a "summons" in connection with the relevant

federal charges. 18 U.S.C. § 3161(b). Issuance of a writ of

habeas corpus ad prosequendum is neither an arrest nor a summons. 

Unlike an arrest, where an individual is taken into custody, the

writ requires only a temporary physical transfer of an already

detained individual. See Black's Law Dictionary 124 (9th ed. 2009) 

(defining arrest as "[t]he taking . . . of a person in custody by

legal authority . . . the apprehension of someone"). Full custody

remains in the jurisdiction of detention; at best, custody under

the writ is temporary and limited. Moreover, unlike a summons, the

writ is issued not to the individual, but instead to the custodian,

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directing transfer of the defendant. Thus, the issuance of the

writ, by the literal terms of the statute, did not trigger the STA. 

Two other interpretive rules reinforce this conclusion. 

The language of the STA operates against the backdrop of Rule 4 of

the Federal Rules of Criminal Procedure, which provides the

mechanism for issuing an arrest warrant or a summons: after a

complaint establishes probable cause, "the judge must issue an

arrest warrant to an officer authorized to execute it," although at

the request of the government "the judge must issue a summons

. . . to a person authorized to serve it." Fed. R. Crim. P. 4(a). 

Arrest warrants are executed by "arresting the defendant," while

summons are issued by "ser[vice] on an individual defendant." Fed.

R. Crim. P. 4(c)(3)(A), (B). The rule makes clear that writs ad

prosequendum are not arrests or summonses, as such writs involve

neither issuance nor execution of an arrest warrant nor service of

a summons on an individual defendant.

Moreover, an arrest under the STA is typically the

"beginning of continuing restraints on [a] defendant's liberty

imposed in connection with the formal charge on which [a] defendant

is eventually tried." Acha v. United States, 910 F.2d 28, 30 (1st

Cir. 1990) (per curiam) (quoting United States v. Stead, 745 F.2d

1170, 1172 (8th Cir. 1984)) (emphasis added) (internal quotation

mark omitted). Issuance of the writ ad prosequendum is not the

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beginning point of such restraints; by definition such writs only

issue to those already in custody on other charges.

Second, Congress expressly considered the writ in

enacting the STA. "[T]he issuance of ad prosequendum writs by

federal courts has a long history, dating back to the First

Judiciary Act. We can therefore assume that Congress was well

aware of the use of such writs by the Federal Government" when it

enacted the STA. See Mauro, 436 U.S. at 360. That background

assumption is supported by another provision of the Act which

expressly addresses such writs. Section 3161(j)(1) provides that

"[i]f the attorney for the Government knows that a person charged

with an offense is serving a term of imprisonment in any penal

institution, he shall promptly . . . undertake to obtain the

presence of the prisoner for trial," or file a detainer. 18 U.S.C.

§ 3161(j)(1). When the person "having custody of the prisoner"

receives such a "request for temporary custody of such prisoner,"

"the prisoner shall be made available" for trial. Id.

§ 3161(j)(4). This language has been interpreted to authorize

issuance of writs of habeas corpus ad prosequendum to procure

defendants' attendance at trial. Mauro, 436 U.S. at 362 n.27.

Section 3161(j) demonstrates that Congress was acutely

aware of the use of such writs, and could easily have drafted

§ 3161(b) to include their issuance as a trigger of the 30-day

indictment clock, but chose not to do so. Similarly, Congress

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could also have written § 3161(j) to apply to individuals detained

awaiting trial, rather than limiting its application to individuals

"serving a term of imprisonment," but again chose not to do so. 

See 18 U.S.C. § 3161(j)(1). The language of § 3161(j) also makes

clear that writs of habeas corpus ad prosequendum are merely

"requests for temporary custody," rather than an "arrest" or a

"summons." Id.

Case law addressing similar situations under the STA

supports the conclusion that the Act was not triggered in this

case. In a variety of circumstances, courts have held that where

an arrest is justified independently, and is based on charges

separate from those ultimately brought against the defendant, the

Act is not triggered with respect to such ultimate charges. See

Acha, 910 F.2d at 30 ("The right to a speedy trial on a charge is

triggered by arrest only where the arrest is the beginning of

continuing restraints on [a] defendant's liberty imposed in

connection with the formal charge on which [a] defendant is

eventually tried.") (quoting United States v. Stead, 742 F.2d 1170,

1172 (8th Cir. 1984)) (emphasis added) (internal quotation marks

omitted). As a result, in Acha, we held that the defendant's

arrest was based on and justified by a violation of his original

conviction's bail conditions, and at that time he had not yet been

charged with the separate offense of failing to appear before a

court. Id. at 30. With respect to that separate offense, "[i]t

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was only upon his [later] indictment that the time periods of the

Speedy Trial Act were triggered." Id. at 30-31. We also held that

when an escaped prisoner is arrested and later indicted for escape,

the "delay between a prisoner's recapture and his subsequent

indictment for escape does not violate his right to a speedy

trial," because such defendants are subject to recapture based on

the original conviction. Id. at 31.

Similarly, we have held that where there is a civil

federal arrest, for instance on deportation charges, such an arrest

does not trigger the 30-day clock for any criminal charges the

government might bring, because such arrests are typically not "in

connection with" the later federal charge. United States v.

Garcia-Martinez, 254 F.3d 16, 19 (1st Cir. 2001).

Where a state arrest takes place and the United States

later files a complaint and a detainer seeking to prosecute that

individual, there is no federal "arrest" under the Act, as the

individual is in custody based on state law violations. See, e.g.,

United States v. Taylor, 814 F.2d 172, 175 (5th Cir. 1987); United

States v. Copley, 774 F.2d 728, 730 (6th Cir. 1985).

Finally, in the Sixth Amendment speedy trial context, we

have addressed the question of when the right to a speedy trial

attaches when a defendant has a complaint filed against him, is

thereafter taken into custody for an unrelated crime, and is

subsequently indicted. Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.

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2002). We held that the Sixth Amendment right did not attach until

indictment, because the state arrest was "of no consequence unless

that detention was related to the charges on which his speedy trial

claim is based." Id. at 36.

While none of these decisions are directly on-point, they

provide analogues to the situation presented here. Kelly was

initially arrested for an entirely separate crime on the basis of 6

a warrant issued by the Western District of New York. That marked

the beginning of restraints on Kelly's liberty based on the New

York charge. That arrest was not "in connection with" the Maine

charges, as they related to entirely separate facts, and the Maine

complaint had not even been filed at the time Kelly was arrested. 

The writ ad prosequendum did not change any of this: Kelly was at

all relevant times in custody pursuant to the Western District's

authority, as the writ merely loaned him to the District of Maine

for appearance. He was subject to detention based on the Western

District warrant, not the Maine warrant, and the Western District

charges remained the basis of his detention throughout the Maine

proceedings. As a result, the STA's 30-day arrest to indictment

We need not address here what rule might apply where "a 6

defendant has not yet been convicted but is arrested on one charge

and later indicted for a similar charge" in another jurisdiction,

as such facts are not present. Acha v. United States, 910 F.2d 28,

31 (1st Cir. 1990) (per curiam). Kelly's New York offense of

escape from custody was entirely unrelated to his Maine identity

theft charges.

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provision was not triggered in this case, as there was no arrest 7

or issuance of a summons in connection with the Maine charges.

We further note that this holding does not raise the

danger of indefinite detention under the writ pending trial, or of

prejudicial pre-indictment delay, because a variety of safeguards

beyond the STA exist to ensure that the criminal process moves

forward expeditiously. The court issuing the writ ad prosequendum

has, inter alia, supervisory authority under Rule 48 of the Federal

Rules of Criminal Procedure to "dismiss an indictment, information,

or complaint if unnecessary delay occurs in: (1) presenting a

charge to a grand jury; (2) filing an information against a

defendant; or (3) bringing a defendant to trial." Fed. R. Crim. P.

48(b). This rule is a "restatement of the inherent power of the

court to dismiss a case for want of prosecution," United States v.

Correia, 531 F.2d 1095, 1099 (1st Cir. 1976) (internal quotation

mark omitted), and can sometimes be exercised in situations where

the Sixth Amendment or STA might not apply. See Id. Facts such as

these may also raise constitutional restraints.

There was no injustice here. Kelly chose to prolong his

detention in Maine under the writ in order to attempt to negotiate

plea agreements favorable to him in both Maine and New York.

By contrast, the 70-day indictment to trial requirement of 7

§ 3161(c)(1) was triggered when the indictment was filed and made

public. 

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IV.

Because the 30-day arrest to indictment clock was not

triggered, there was no Speedy Trial Act violation and the motion

to dismiss was properly denied. We affirm the judgment of the

district court.

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