### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 12

- 2627
U NITED S TATES OF A MERICA , Plaintiff

- Appellee
,

v.

E RNEST C LARK , Defendant

- Appellant

.

____________________ Appeal from t he United States District Court for the Eastern District of Wisconsin. No. 11

- CR

- 30

— J. Phil Gilbert
, Judge

.

____________________
A RGUED J ANUARY 7, 2014

— D ECIDED J UNE 6, 2014

____________________

Before W OOD , Chief Judge , and P OSNER and K ANNE , Ci rcuit Judges

. W OOD , Chief Judge

. Ernest Clark’s string of bank robberies in the Milwaukee area attracted the attention of both state and federal authorities. When both sovereigns decided to prosecute Clark around the same time , th e occasionally del icate practice s designed to coordinat e the timing and pursuit of state and federal prosecutions came into play. Though Clark does not contest the facts underlying his federal co n-2 No. 12

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victions, he argues that violations of the Speedy Trial Act and the Interstate Agreement on Detainers require us to r everse his convictions. We conclude, however, that nothing was amiss, and affirm the judgment of the district court.

I Clark committed six armed bank robberies in the greater Milwaukee area between October 2008 and August 2010. The details of these crimes are irrelevant to his appeal, but the timing of his apprehension and prosecution is important. O n October 8, 2010, Milwaukee police officers who knew that Clark was wanted in connection wit h at least one of th e ro bberies attempted to pull him over. H e fled and was appr ehended only after a two

- mile vehicle chase. Four days later, he was charged in Milwaukee County Circuit Court with the state felony of eluding an officer, see Wis. Stat. § 34 6.04(3). That same day, federal authorities brought armed robbery charges against him in the Eastern District of Wisconsin for the last in his string of six bank robberies, namely, that of the Pyramax Bank in Milwaukee on August 18, 2010. On the b asis of t hat complaint, a magistrate judge issued a warrant for Clark’s arrest. T he FBI used that warrant to file a detainer against him with the Milwaukee County Sheriff, who was holding him in state custody on the eluding charge.

Clark was convicted of the state offense and sentenced to seven months in jail on November 23, 2010. While he was still incarcerated for that crime, a federal grand jury returned a twelve

- count i ndictment against Clark on February 8, 2011
, charging him with armed bank robbery in violation of 18 U.S.C. § 2213(a) and (d), and using a firearm in furtherance of an armed bank robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii) for each of his six bank robberies. He wasNo. 12

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arraigned seventeen days later, on February 25. Following a four

- day jury t rial h e was convicted o n all counts
, and his motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29(c) was denied. He was sentenced to 151 months’ imprisonment for each armed bank robbery count, to run concurrently, and to 300 month s’ imprisonment for each § 924(c) count, to run consecutively, for an aggregate sentence of a whopping 1,951 mont hs in prison. Clark has appealed, but his argument s do not focus on the facts underlying the convictions or the length of the se ntence. Instead, he assert s that his prosecution violated the Speedy Trial Act and the Interstate Agreement on Detainers, and that some of the evidence against him was procured in violation of the Fourth Amendment. We consider these points in t urn.
II

Clark first argues that his conviction must be reversed because his prosecution failed to comply with the timing provisions of the Speedy Trial Act, 18 U.S.C. § 3161(b). We review legal questions about the application of the Speedy Trial Act de novo , and credit the di strict court’s factual fin dings on any issues related to the Act’s application unless they are clearly erroneous. United States v. King , 338 F.3d 794, 797 (7th Cir. 2003).
Under the Sixth Amendment, “ In all criminal prosec utions, the accused shall enjoy th e right to a speedy and pu blic trial ... .” U.S. C ONST

. amend. VI. The purpose of the right is to “ limit the time during which criminal charges are han ging over a person's head unresolved .” United States v. Janik
, 723 F.2d 537, 542 (7th Cir. 1983)

. In order to “make effective”4 No. 12

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this speedy trial guarantee, Congress passed the Speedy Tr ial Act of 1974, Pub. L. No. 93

- 619, 88 Stat. 2076 . See S. Rep. No. 93

- 1021, at 1 (1974)

. The part of the Act relevant to this appeal provides: Any information or indictment char ging an individ ual with the commission of an offense shall be filed within thirty days from the date on which such ind ividual was arrested or served with a summons in connection with such charges. 18 U.S.C. § 3161(b).

T he thirty days do not begin to run b ecause of just any arrest based on the conduct that ultimately supports the fe deral prosecution. Two limitations are at work. First, because the states and the federal government are distinct sovereigns for purposes of criminal prosecutions, the speedy tri al pr otections of the federal statute apply only to arrests made for federal charges

— a n arrest by a state officer on a state charge does not start the statutory clock. Janik
, 723 F.2d at 542

. Se cond, even an arrest by the federal authorities is insufficient if the person is immediately released without any federal charges being filed. Id. The Sixth Amendment speedy trial right
, from which the Speedy Trial Act draws its substance
, applies only to per sons who are formally accused of a crime. United States v. MacDonald , 456 U.S. 1, 16 (1982). T o qualify as a federal arrest and trigger the 30

- day period under the Act, therefore, an arrest must be for the purpose of bringing fe deral charges, and charges must be “pending” when the pe rson is ar rested

. So meone who is only the target of a criminal investigation has no right to have the government wrap up its investigation quickly and bring charges, even if the target is aware of the investigation. See id. ; see also United States v.No. 12

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Samples , 713 F.2d 298, 30 1 (7 th Cir. 1983) (explaining that the Sixth Amendment right and the statute apply “only to an a ccused”).

Clark suggests two alternative dates as triggers for his speedy trial clock, either of which would provide him the relief he seeks. The earlier one is the day he was arrested by Milwaukee police: October 8, 2010. Although he was arres ted by state police, he maintains (vaguely) that the arrest “was involved with” federal charges . His point seems to be that the state officers arrested him with the ulterio r motive of bringing federal charges, either because they were acting as the federal government’s agents at the time or because the arrest was always meant to lead to federal prosecution.

I f an agency relationship were present this might be a closer point , but Clark has no proof of agency

. He bases his argument entirely on testimony by the arresting officer that his armed bank robbery was the reason for his ar rest. He then reasons that the fact that his ultimate trial in federal
court was on armed robbery charges amounts to proof that his original arrest was on this charge. Yet t he record is d evoid of any indication that the federal government was i nvolved at all in his prosecution at the time of the October 8
arrest , let alone that it instructed the state authorities to a rrest Clark or that it wanted him arrested so that it could in itiate proceedings against him. Wisconsin unsurprisingly has its own laws against armed robbery. See Wis. Stat. § 942.32(2). The decision of s tate officials to ar rest someone bec ause he is wanted for conduct in violation of state law does not forc e the federal government to initiate whatever
p roceedings it might bring for the same underlying con duct6 No. 12

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at the same moment. The federal arrest necessary to trigger the Speedy Trial Act d id not occur on October 8

. Clark’s second theory is that his speedy trial clock start ed with the filing of the federal com plaint and detainer with the Milwaukee County Sheriff on October 12. He maintains that, because he would have been brought into federal custody that day if his state charges had vanished
, these were the functional equivalen t of a federal “arrest or summons” to initia te the 30

- day period under the Speedy Trial Act.

Several of our sister circuits have considered the arg ument that some form of accusatory document short of an i ndictment

— such as a complaint or detainer

— is sufficient to trigger the 30

- day rule even if the a ccused has not been brought into federal custody . They have almost uniformly

re jected it . The key to their reasoning is that there must be a “federal deprivation of liberty” in connection with the d etainer or complaint before the accused is entitled to the pr otections of the Speedy Trial Act. United States v. Bloom , 865 F.2d 485, 491 (2d Cir. 1989). A good example is the Eleventh Circuit’s decision in United States v. Shahryar
, 719 F.2d 1522 (11th Cir. 1983) ( per curiam ). Shahryar was first arrested on sta te arson charges, and four days later a federal complaint was filed against him for violations of wire fraud and firearms statutes. A federal magistrate judge issued an arrest warrant and set a temp orary bond ; the warrant was lodged with state authorities as a detainer. Shahryar posted bond on his state charges f ive months after that, and was immediately taken into federal custody

. H e was indicted by a federal grand jury two weeks later. Id. at 1523. The court reasoned that the Act was not vi olated because the 30

- day period did not begin until ShahryarNo. 12

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posted bond on his state charge and en tered federal custody. U ntil that point
, “ there was no federal arrest of the appellant and no taking of him into federal custody .” Id. at 1524. The court explained that “[ f] or the time limit of the Act to co mmence a person must be held for the purpose of answering to a federal charge. ” Id. at 1524

– 25. It grounded its rule in the doctrine of dual sovereignty, “deeply rooted concepts of fe deralism,” and “common sense. ” Id. at 1525.

Other circuits similarly have held that there must be both a federal charge and federal custody fo r the Speedy Trial Act to apply; neither one alone suffi ces . See United States v. Ba gster , 915 F.2d 607, 611 (10th Cir. 1990); United States v. Johnson
, 815 F.2d 30 9, 312 (5th Cir. 1987) ; see also Bloom , 865 F.2d at 491 (relying on Shahryar to hold that when a person is arres ted and released on the same day without formal charges, and a complaint is filed after that release, the Speedy Trial Act does not apply until that person is brought back into custody). The only apparen t holdout is the Eighth Circuit. It has not directly addressed whether the Speedy Trial Act’s pre

- indictment timing provision is triggered by a complaint alone, but it seemed to assume so in United States v. Solomon
, 679 F.2d 1246, 1251

– 52 (8th Cir. 1982). We note, however, that this issue was not squarely presented in Solomon , and that the court there was deciding if an arrest alone triggered the Sp eedy Trial Act, or if the 30

- day peri od began only when a complaint issued. Id. Although we have not had the occasion to address the r elation between a federal detainer and the Speedy Trial Act, we have held that recapture of an escap ed prisoner does not begin the speedy t rial clock for new charges stemming from the escape. See United States v. Zukowski , 851 F.2d 174 , 1778 No. 12

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(7th Cir. 1988). T he defendant there argued that bringing him back into federal custody was necessarily an “arrest” for the purposes of the Act, but we re asoned that there was no “arrest” because “ the restraints imposed on the prisoner [we re ] not new but [we re ] based on his original conviction .” Id. S peedy trial rights , we said, “ do not protect an individual against unreasonable delay before accusation by a rrest or the filing of charges .” Id. at 178. It is true that we were constr uing the constitutional rather than the statutory speedy trial right in that portion of the opinion . Nonetheless, because the Speedy Trial Act uses an arrest or summons as the trigg er for the 30

- day requirement, the principle is the same. Returning to Clark’s case, it does not take a significant e xtension of Zukowski to find that he was not “arrested” for purposes of the Speedy Trial Act when the detainer was lodged with Milwaukee po lice on October 12. T he sine qua

non of an arrest for purposes of the Act i s the act of una mbiguously bringing the accused into federal custody

. Clark’s detainer argument falls short of the mark for two reasons: he was not brought into federal custody at a ll on that date , and he was not subject to any restraints beyond those that Wi sconsin already was imposing legitimately. We accordingly agree with our sister circuits that have held a “federal depr ivation of liberty” is required to start the 30

- day period under the Speedy Trial Act . Since neither of the dates Clark pr oposes initiated federal custody, we find no violation of the Act in Clark’s prosecution

. III Clark’s second challenge to his conviction requires us to consider another aspect of federal

- state coordination on prosecuting criminals: t he Interstate Agreement on DetainersNo. 12

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(IAD) , 18 U.S.C. app. 2 § 2. The district court’s application of the IAD present s a question of law that we review de novo

. United States v. Jones , 454 F.3d 6 42 , 646 (7th Cir. 2006).

The IAD is designed to ensure co operation both between member states and between states and the federal gover nment . The federal government and every stat e except Louis iana and Mississippi have signed the compact . The portion of the IAD at issue here is Article V, which governs when and how a state (or the federal government) wishing to prosecute a person already imprisoned in another state may take te mpora ry custody of the prisoner for the purpose of pursuing its charges. Article V(d) provides in relevant part : The temporary custody referred to in this agreement shall be only for the purpose of permitting prosec ution on the charge or charges contained in on e or more untried indictments, informations, or co mplaints which form the basis of the detainer or detai ners or for prosecution on any other charge or charges arising out of the same transaction. 18 U.S.C. app. 2 § 2 art. V(d).

Clark maintains that his pr o secution violated Article V(d) and that the appropriate remedy is dismissal of his convi ctions . To evaluate his claim, we first must examine the d etainer the FBI filed in his case. The complaint issued by the federal magistrate judge on October 12, 2010
, contained two charges: armed bank robbery and brandishing a firearm in furtherance of such a robbery, both based o n the last of Clark’s six bank robberies. (The record does not reveal whether state or federal authorities were aware of Clark’s connection w ith the other five robberies at that time.) The10 No. 12

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detainer was lodged with the Milwaukee County Sheriff on the basis of those two charges. It remained in place, without amendment, throughout his state prosecution
, until he was indicted on February 8, 2011, o n the full complement of fe deral charges for which he was ultimately convicted. Clark argues that because only the two counts in the complaint “form[ed] the basis of the detainer” that led to his federal custody, under Article V(d) the federal government c ould prosecute him only on those counts. The IAD forbade, he a sserts, the addition of other counts that were not part of the complaint on which the detainer was based.

The magistrate judge who first heard Clark’s argument rejected it on the ground that Cl ark’s presence in federal court was procured via a writ of habeas corpus ad proseque ndum rather than a written request for a prisoner transfer u nder the IAD. See 18 U.S.C. app. 2 § 2 art. I V . But th at distin ction was rejected in the Supreme Court’s decisio n in United States v. Mauro , 436 U.S. 340 (1978). There, while construing Article IV of the IAD, the Court held that once the federal government has filed a detainer, a writ of habeas corpus ad prosequendum is itself a “written request for temporary cu stod y” for the purposes of the IAD. Id. at 361. Though that case involved Article IV’s provisions governing the timing of interstate prosecutions, there is no material difference in this case between Article IV and Article V. As the Supreme Court explained, pr oceed ing by way of the writ “in no way reduces the need for ... prompt disposition of the charges underlying the detainer.” Id. at 362. ( There is one difference between the IAD process and the writ, however. As United States v. Pleau
, 680 F.3d 1 (1st Cir. 20 12) (en banc), notes, the writ of habeas corpus ad prosequendum is a stronger tool for the federal go vernment, because a state governor has no power to refuse toNo. 12

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honor the writ, while the governor does have power to di sapprove a request for transfer under the IAD. Id. at 3, 6.)

The district court spotted the Mauro error and instead reasoned that the detainer was constructively amended by the February 8 indictment ; at that point, the court ruled, the extra 10 counts of the indictment became additional bases for the detainer. The government admits on appeal that this reasoning is unprec edented and urges us in the alternative to hold that any violation of the IAD in this case was har mless. R eversing Clark’s convictions based on such a small vi olation , it conten ds, would not serve the purposes of the IAD. Our take is slightly different from the district court’s. We note at the outset that Article V(d) says temporary custody is

“ only for the purpose of permitting prosecution” on an untried charging document that f orms the b asis of the detainer. This is di fferent from temporary custo dy being “for the purpose of prosecution only on charges that form the basis of the d etainer,” which the IAD does not say. Clark’s detainer was based on the armed robbery and firearm

- bra ndishing char ges arising out of the Pyramax Bank robbery. U nder the IAD, he could be transferred so that the receiving sovereign could try him on those charges. The only wrinkle is that before the transfer occurred, a superseding indictment was returned th at added more charges. Once he found himself in federal custody, he had to stand trial for both the original charges and the new ones, since they had been joined as Federal Rule of Criminal Procedure 8(a) permits. Thus, upon his transfer, Clark was t ried b oth for the charges that formed the basis of his original detainer and for the additional charg es raised in the superseding indictment.12 No. 12

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As long as the original charges are not lodge d in bad faith or fraudulent ly as a bas is for obtaining a detainer, or the later

- added charges are not improperly delayed to avoid the strictures of the IAD, w e see nothing to prevent the add ition of new charges. Suppose the government had taken Clark’s view of the matter and had tried him only on the charges that supported the detainer. Surely Clark does not mean that the government was forever barred from bringing the additional charges related to the other five bank ro bberies. Once the first trial was over, the government could have sought a new indictment (assuming no statute

- of

limitations problem) and proceeded with a new trial, maybe even under a new detainer. But what sense would there be in such a rule? T he purpose of the IAD is to “ prevent compe ting jurisdictions from transferring prisoners back and forth, because such t ransfers can under mine the prisoner’ s right to a speedy trial and the rehabilitative process of the system in which the prisoner is currently serving a sentence .” United States v. Jones , 938 F.2d 447, 448 (3d Cir. 1991)

. Article V(d) in particular was designed to “safeguard the prisoner’s right to contest the transfer by appealing to the Governor of the sending state pursuant to Article IV(a) of the IAD,” which allows governors to disapprove requests for temporary custody within 30 da ys. Cooney v. Fulcomer
, 886 F.2d 41, 44 (3d Cir. 1989); but see Pleau, supra. That pur pose is fully served in situations such as this one, where the ult imate transfer is for the purpose of trying the original charges that form ed the basis of the detainer, and the additions to the indictment are imposed before the prisoner is transferred. The system Clark seems to be proposing would actually work a t cross

- purposes with the IAD , insofar as it would r equire the federal government to send Clark back to Wisco n-No. 12

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si n so that it could re

- indict him and lodge a new detainer before bringing him back to federal custody for a trial. Clark has not alleged any prejudice that flowed from the fact that the government did not file a new detainer after the indictment

. Relying o n Alabama v. Bozeman , 533 U.S. 146 (2001), he argues instead that the doctrine of harmless error is categorically unavailable for violations of the IAD. B ozeman held that there is no de minimis exception to the anti

shuttling provision of Article IV(e) of the IAD, which r equires that a transferred prisoner be tried in the receiving state before being returned to the sending state. The wording of Article IV(e) was central to the Court’s reasoning: it says that if a prisoner is returned to the sending state before trial, the indictment “ shall not be of any further force or effect, and the court shall enter an order dismissing the sam e with pre judice.” Bozeman , 533 U.S. at 153 (quoting 18 U.S.C. app. 2 § 2 art. IV(e)). This language, the Court said, left no ro om for an exception for de minimis violations

. Article V(d), in contrast
, d oes not mandate any cons equence . Th is distinguishes it not on ly from Article IV(e), but also from other parts of Article V, such as Article V(c) (direc ting courts in the jurisdictio n where an indictment was issued to dismiss it with prejudice if the jurisdiction “refuses or fails to accept temporary custody” of a prisoner pursuant to a d etainer). The drafters knew how to require dismissal of an a ction for failure to comply with provi sions of the IAD, and their decision not to impose that draconian consequence for violations of Article V(d) should not be disre garded

. Automatic re versal of a criminal conviction is generally imposed only when the type of error at issue is “ so intrins ical ly harmful as to require automatic reversal ( i.e., “affect14 No. 12

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substantial rights”) without regard to their effect on the ou tcome. ” Neder v. United States , 527 U.S. 1, 7 (1999)

. While Congress can modify that rule by statute for particular types of error

— as it did in Article IV(e) of the IAD

— in the absence of such a legislative command , we subject most alleged e rrors to harmless error analysis. See id. at 8. H armless error analysis seems particularly appr opriate here, where even if there was a violation, Clark has not identified a si ngle reason why he was harmed by the supposed violation of the IAD or why the anti

- shutt ling purpose of the agreement was u ndermined

. Accordingly, even though we do not think t he IAD was violated, we are satisfied that if it was, harmless error analysis applies to the type of claim Clark is rais ing, and any error here was harmless.

IV

Clark’ s final claim is that a search warrant issued for his DNA while he was in the Milwaukee C ounty jail failed to satisfy the Fourth Amendment’s particularity requirement. Shortly after Clark’s initial arrest, a state judicial officer i ssued a search warrant to conduct a buccal swab f or DNA from “Ernest F. Clark, B/M [black male], 11

- 01

- 1968 at th e City of Milwaukee Prisoner Processing Center.” The DNA obtained from this search was later linked to a mask and pair of gloves found during the investigation of Clark’s last bank robbery. Clark argues that this evidence should have been suppressed becaus e his birthdate (at least using the month

day

- year ordering common in the United States ) is 01

- 11

- 1968 ( i.e . January 11, not November 1). The particularity requirement of the Fourth Amendment protects against open

- ended warrants that leave the scope of the search to the discretion of the officer executing the wa r-No. 12

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rant, or permit seizure of items other than what is described. E.g.
, Stanford v. Texas , 379 U.S. 476, 485

– 86 (1965). A warrant satis fies this requirement if it leaves nothing about its scope to the discretion of the officer serving it. Jones v. Wilhelm , 425 F.3d 455, 462 (7th Cir. 2005).

The warrant issued for Clark’s DNA was not unconstit utionally vague. It correctly identified his name, race, sex, and the location where he was housed, and contained what is at most a transposition of the date and month of his birthday. This small error (if it was one, and not just a rendering of his birthday in the day

- month

- year order that is common throughout much of the world and used by the U.S. military ) casts no doubt on the fact tha t Clark was the intended target. It did not give the of ficer discretion to search anyone but him , or to collect anything but Clark’s DNA by means of a buccal swab

. There was no confusion about who was to be search ed and what was to be col lected ; the Fourth Amen dment is not a bulwark against typos.

* * * We are satisfied that there were no statutory or constit utional errors requiring reversal of Clark’s convictions. The j udgment of the district court is A FFIRMED

.