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
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.
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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
1
The 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.
2
Kelley 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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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
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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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
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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.
3
Kelley 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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