United States Court of Appeals

For the First Circuit

No. 04-1178

UNITED STATES OF AMERICA,

Appellee,

v.

KEVIN KELLEY,

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

 Torruella, Lynch and Lipez, 

Circuit Judges.

Syrie D. Fried, with whom the Federal Defender Office

was on brief, for appellant.

James F. Lang, Assistant U.S. Attorney, with whom Donald

L. Cabell, Assistant U.S. Attorney, and Michael J. Sullivan, U.S.

Attorney, were on brief, for appellee. 

March 22, 2005
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LYNCH, Circuit Judge. In January of 2002, Kevin Kelley

put a gun to the head of a man he thought was the manager of the

Best Western Roundhouse Suites Hotel in Boston, in an attempt to

steal the hotel receipts from that day. The man was not the

manager, but was just a customer in his car in the parking lot, and

all Kelley received was $70.00. As a result of this incident,

Kelley was charged federally for being a felon in possession of a

firearm (the gun Kelley used that night), 18 U.S.C. § 922(g)(1),

and charged in state court for the underlying crime of armed

robbery. Since Kelley met the definition of an armed career

criminal under 18 U.S.C. § 924(e), a conviction on the federal

charges would have meant a sentence of at least 15 years in prison

by a statutory mandatory minimum. 

In Massachusetts there is no separate federal pre-trial

detention facility. Instead, the United States Marshals Service

contracts with the state and its counties to house detained federal

prisoners at state and county facilities. This, in turn, brings

into play the provisions of the Interstate Agreement on Detainers

("IAD"), which is the subject of this appeal. 18 U.S.C. App. 2

§ 2.

During his state and federal prosecutions, Kelley was

alternately a state, federal, and again a state detainee as a

result of what some might call a comedy of errors and others would

call a series of mistakes and negligence by various federal and
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state entities. This includes the Marshals Service declining to

pay the bill properly submitted to it by the state for Kelley's

stay as a federal detainee at Norfolk County Jail. Further,

although Kelley was a federal pre-trial detainee from the time he

was indicted on federal charges on September 17, 2002, he was

improperly released from federal to state custody on October 4,

2002, in order to appear in state court for proceedings related to

his state armed robbery charges, to which he pled guilty. On

October 8, 2004, Kelley was sent to serve a state sentence on these

charges at MCI-Concord, again being placed in state custody.

Because he was a federal pre-trial detainee at the time, releasing

Kelley into state custody violated the anti-shuttling provisions of

the IAD. See id. Art. III. Those provisions are intended to

prevent "uncertainties which obstruct programs of prisoner

treatment and rehabilitation" resulting from the existence of

outstanding detainers lodged against prisoners, as well as to

alleviate "difficulties in securing speedy trial of persons already

incarcerated in other jurisdictions." Id. Art. I.

When a violation of the IAD occurs, and when, as here,

the United States is the receiving government (because Kelley was

in state custody when he was indicted on federal charges), "any

order of a court dismissing any indictment, information, or

complaint [for an IAD violation] may be with or without prejudice."

18 U.S.C. App. 2 § 9(1). The IAD further states:
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In determining whether to dismiss the case

with or without prejudice, the court shall

consider, among others, each of the following

factors: The seriousness of the offense; the

facts and circumstances of the case which led

to the dismissal; and the impact of a

reprosecution on the administration of the

agreement on detainers and on the

administration of justice . . . . 

Id.

Kelley moved to dismiss with prejudice the federal

charges for violation of the anti-shuttling provisions of the IAD.

The district court, after hearing evidence, wrote a comprehensive

and thoughtful twenty-five page decision, guided by the Supreme

Court's opinion in Alabama v. Bozeman, 533 U.S. 146 (2001). See

United States v. Kelley, 300 F. Supp. 2d 224 (D. Mass. 2003). The

opinion considered and weighed all of the appropriate factors. The

court noted some possible prejudice to Kelley from the violation:

it was possible Kelley could see a longer period of confinement as

a result of the snafu. Id. at 234. But this was, in the court's

judgment, outweighed by the other factors, namely, that the offense

involved was a serious one, and that the government had not

willfully violated the IAD. Id. at 233-34. The district court

concluded that the federal charges must be dismissed because the

IAD had been violated, but that the dismissal was without

prejudice. Id. at 235. 
1The government then on March 26, 2003 obtained a superseding

indictment against Kelley and his accomplice, again charging a

violation of 18 U.S.C. § 922(g)(1). On May 16, 2003 Kelley pled

guilty to the federal charges. As it turned out, the court

sentenced in a way which ensured that the delay occasioned earlier

did not prejudice Kelley. 

2Kelley does claim that the district court erred in finding

that, after his initial appearance on federal charges on September

17, he was not returned to state custody when he was sent back to

Norfolk County Jail. However, since the district court did find

that an IAD violation occurred due to his subsequent return to

state custody, even were this finding clearly erroneous it would

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There is no dispute that the IAD was violated; the only

dispute on appeal is as to the remedy of dismissal without

prejudice.1

I.

This court has not before addressed the question of the

standard of review for challenges to a trial court's decision under

the IAD to dismiss an indictment with or without prejudice. In

analogous cases under the Speedy Trial Act, 18 U.S.C. §§ 3161-3174,

we review the trial court's rulings of law de novo, its factual

findings for clear error, United States v. Ramirez, 973 F.2d 36,

38 (1st Cir. 1992), and its ultimate ruling for abuse of

discretion, United States v. Trueber, 238 F.3d 79, 87 (1st Cir.

2001). We now hold the same standard applies to rulings on motions

to dismiss federal prosecutions under the IAD. 

Kelley's principal argument is not that the district

court abused its discretion by applying wrong legal principles or

that there is clear error in the factual findings.2 Rather, he
not require a reversal of the district court's decision. Nor does

Kelley argue as much; he claims that this erroneous finding may

have affected the balancing analysis. In any event, the district

court's finding that he was not returned to state custody after his

initial appearance on September 17 is supported by substantial

evidence and certainly did not constitute clear error.

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argues that the court gave too little weight to the effect of

reprosecution on the goal of securing compliance with the IAD,

"mischaracterized the egregiousness of the [IAD] violation," and

"gave too much weight to the seriousness of the offense without

articulating why this factor overrode other statutory factors." 

Kelley has an uphill battle in arguing that an abuse of

discretion arises from the relative weight given by the district

court to the correct factors. Assuming no error of law as to the

factors to be considered and no error of fact, the weight a court

gives to the factors is usually upheld absent a clear error of

judgment. United States v. Taylor, 487 U.S. 326, 337 (1988)

("[W]hen the statutory factors are properly considered, and

supporting factual findings are not clearly in error, the district

court's judgment of how opposing considerations balance should not

be lightly disturbed."); United States v. Hastings, 847 F.2d 920,

924 (1st Cir. 1998) (holding, in the context of a Speedy Trial Act

violation, that "when all proper and no improper facts are

considered," the district court's determination will be upheld

unless "the court in weighing those factors commits a clear error
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of judgment" (quoting United States v. Kramer, 827 F.2d 1174, 1179

(8th Cir. 1987))).

Here, a simple reading of the district court's careful

opinion itself shows the futility of the attack. The soundness of

the reasoning speaks for itself. We have little to add to the

substantive analysis in the district court's opinion and affirm in

large part on that basis.

It is worth making one additional point. Kelley makes

the serious charge that the district court "mischaracterized the

egregiousness of the violation." This argument is both unfounded

and unfair. The court correctly found this was an inadvertent

administrative error and that there was no willful violation.

There is no evidence to the contrary.

We recognize that Bozeman held there were no exceptions

to finding violations of the IAD for "technical" or "de minimis"

missteps. 533 U.S. at 153-54. Bozeman overruled the contrary rule

stated in United States v. Taylor, 861 F.2d 316 (1st Cir. 1988),

which this court had cited favorably in United States v. Hunnewell,

891 F.2d 955, 959 (1st Cir. 1989). Under Bozeman, the question of

whether a violation is technical or de minimis has to do with

whether there is a violation of the IAD at all, not with the

appropriateness of a particular remedy of dismissal with prejudice

or without prejudice. The circumstances under which the violation

occurred is an entirely appropriate factor to consider in the
3Kelley attempts to argue that such a pattern exists, however

he relies on only three cases decided more than a decade ago, and

none involving the Norfolk County Jail. We can find no pattern of

IAD violations similar to the instant case.

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analysis of whether the court abused its discretion in dismissing

the indictment without prejudice.

Like the district court, we think this would be a

materially different case if the United States had acted willfully

or if there were a pattern of such violations in this district.3

Toward that end, we inquired of government counsel at oral argument

what was being done to see that this situation did not replay

itself. We received assurances that there will be training both

for the prosecutors and the marshals in the district on the

requirements of the IAD to prevent recurrence of this type of

violation. 

The judgment is easily affirmed. So ordered.