MOTION TO DISMISS FOR VIOLATION OF THE INTERSTATE

AGREEMENT ON DETAINERS

The Interstate Act on Detainers, 18 App. 2 of the U.S. Code, states that whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition 18 U.S.C.A. App. 2, Article III(a). The remedy for failure to comply with the Agreement is dismissal of the case. IADA Art V (c).

The complaint against Mr. * was filed on At that time, Mr. * was in the custody of the State of Nevada. A federal detainer was filed on . Mr. * made a speedy disposition demand on . He was arraigned in federal court on -, and was indicted on . The government will likely contend that they have not violated the IADA because any delay occasioned by the time elapsing between Mr. *'s execution of the demand, and its delivery, is not counted toward the 180 days, and that any delay necessitated by defense motions is also not their responsibility.

See, e.g., Fex v. Michigan, 507 U.S. 43 (1993) (delivery) and United States v. Johnson, 953 F.2d 1167 (9th Cir. 1992) (motions). The holdings of Fex and Johnson, however, only address a small portion of the delay here.

The real delay here was occasioned by the prosecutor's failure to file a detainer for almost a year. The prosecutor is required, by statute, "promptly," to file a detainer against a defendant held by another "penal institution." 18 U.S.C. § 3161(j)(1). In drafting the IADA, Congress was no doubt aware of this requirement, and presupposed that any speedy disposition demand made pursuant to the IADA would follow a "promptly" filed detainer. Because the Speedy Trial Act contains no remedy for this violation, see United States v. Valentine, 783 F.2d 1413 (9th Cir. 1986), this Court should hold that the IADA does not countenance such delay.

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