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Rhode Island Gov. Lincoln Chafee’s battle to prevent the U.S. government from gaining custody of a state inmate facing charges that could call for the death penalty made its way to the U.S. Court of Appeals for the 1st Circuit on Thursday. The oral argument in U.S. v. Pleau and the related In re Pleau drew a standing-room-only crowd to the Boston appellate courtroom. The defendant’s counsel believes it to be the first reported case about a governor’s refusal of a request from the United States for the temporary custody of a prisoner pursuant to the Interstate Agreement on Detainers Act. Jason Wayne Pleau is appealing a June 30 order by Judge William Smith of the District of Rhode Island granting the U.S. government’s petition for a writ of habeas corpus ad prosequendum for him to face federal charges. Pleau also filed a petition for a writ of prohibition. He’s asking the 1st Circuit to permanently stay the district court’s order granting the government’s petition for his custody. Alternatively, Pleau is asking 1st Circuit to continue its stay of the habeas writ long enough for him to litigate whether the writ should issue. His 1st Circuit brief claims he would likely be severely prejudiced if the stay is lifted because he could lose his ability to appeal to the U.S. Supreme Court. The appeal centers on the Interstate Agreement on Detainers Act, an agreement among certain states, the U.S. government, the District of Columbia and Puerto Rico, which governs transfers of prisoners for unrelated trials from one state to another or from a state to the federal government or the federal government to a state. According to his 1st Circuit brief, Pleau is serving two state court sentences, for a total of about 18 years, in a Rhode Island prison — one sentence as a parole violator and the other as a probation violator. His current release date is projected to be 2028. In November 2010, Pleau was charged in federal court for the Sept. 20, 2010, murder and robbery of David Main in Woonsocket, R.I, as he was making a deposit at a bank. The Dec. 14, indictment included three charges: robbery affecting interstate commerce; conspiracy to commit robbery affecting interstate commerce; and possessing, using, carrying, and discharging a firearm in relation to a crime of violence, death resulting. On May 25, a district court order granted the U.S. government’s request for temporary custody of Pleau under the Interstate Agreement on Detainers Act. On June 23, Chafee sent a letter to U.S. Attorney for the District of Rhode Island Peter Neronha denying the request for temporary custody of Pleau, under the terms of the detainers act. Chafee did so on the basis that Pleau could face the death penalty under the federal charges, and Rhode Island has rejected the death penalty. On June 27, the United States filed a petition for a writ of habeas corpus ad prosequendum with the District of Rhode Island. On June 30, Smith granted the writ. Judges Michael Boudin, O. Rogeriee Thompson and Juan Torruella sat on the 1st Circuit panel. Thompson began by quizzing Chafee’s chief legal officer, Claire Richards, about the governor’s decision to file an amicus brief rather than a motion to intervene in the case. Richards replied that the governor was dealing with a very truncated timeframe but is now prepared to file a motion to intervene. Thompson asked Richards about whether she had done any research on whether state has a right to refuse a habeas petition. Richards replied that once the [Interstate Agreement on Detainers Act] had passed, the “status of the federal government moved down from a supreme federal entity to a state.” “Here the U.S. has opted to be treated as a state for purposes of the [detainers act] and has agreed to participate under [it],” Richards said. In this case, Richards said, the “request to transfer appeared to be merely geared to exposing this defendant to the death penalty….For that reason, the governor exercised his discretion on a public policy basis to refuse the request.” Pleau’s lawyer, Robert Mann of Providence, R.I.-based Mann & Mitchell, said it’s not his position that the governor may block a federal prosecution. Instead, the U.S. government has a choice whether to proceed by writ or the detainers act process. But once the federal government opts for the detainers act route, “they are bound by the terms of the interstate agreement. What they don’t get to do is get two bites of the apple,” Mann said. Once the detainers act became federal law in about 1970, the U.S. became a full member of that compact, Mann said. “It’s our position that the U.S. is in the same position as other signatories of that compact.” Thompson told Mann she needed him to go into the issue of his client’s standing. Mann replied that he’d start with the 2011 Supreme Court ruling in Bond v. U.S., which held that a criminal defendant indicted on federal charges has standing to challenge the statute on the ground that it infringes on state’s powers reserved under the U.S. Constitution’s 10th Amendment. The Bond case essential said that an individual has a right to assert the rights of state, Mann said. “He would suffer nothing more than prosecution for a crime for which he’s been indicted,” Thompson said. The fact that the crime carries the possibility of the death penalty doesn’t affect the issue of whether he’d be prejudiced by an adverse ruling on the standing issue, she said. After further debate, Mann said that, based on the U.S. government’s position in its brief, he anticipates that if the defendant had a full trial and later said he was prejudiced, the government would say its’ too late for him to make that argument. Torruella then asked how Pleau would meet the high standards for a writ of prohibition. Mann replied that the issue is of great significance to state of Rhode Island, it may arise in other jurisdictions and there are no reported decisions on point. “It’s an issue that’s likely to have great significance potentially all around the country,” Mann said. Torruella asked again about the standards. Mann said the 1978 Supreme Court ruling in U.S. v. Mauro and the 2d Circuit’s interpretation of Mauro in U.S. v. Scheer supports the governor’s right to decline to transfer of the prisoner. According to Pleau’s 1st Circuit brief, Mauro held that when the government obtains a writ of habeas corpus ad prosequendum after lodging a detainer under the detainers act, “the writ is treated as a written request for the temporary custody of an inmate” under the detainers act. The fact that the written request from the United States comes in the form of a writ of habeas corpus ad prosequendum cannot relieve the United States of its obligations under the [detainers act],” stated the brief. “I recognize that it’s a high hurdle and nobody has reported cases on this issue but I would submit that if you just read the [detainers act] in the way the government wants, the government is saying this act we generated did not apply to us in one important respect,” Mann said. Donald Lockhart, a District of Rhode Island assistant U.S. attorney, started by mentioning the Mauro case, which prompted Torruella to remark that Mauro “could be read in so many different ways.” Lockhart said that the part of the detainers act that allows a governor to disapprove a government’s prisoner transfer request has the narrow purpose of preserving a governor’s pre-existing rights, but “the governor of a state never had a right to disregard a writ.” After further debate, Torruella said the Supreme Court held that the federal government has joined the compact “at the same level as any other state.” Lockhart said the court shouldn’t imply from the mere fact that the United States is party to the agreement that Congress intended the United States to take a back seat. Near the end of his oral argument time, Lockhart said he wanted to address the issue of Pleau’s standing. He said the governor had ample opportunity in the district court and earlier in the appeal to intervene. “Our position is that it’s too late in the game now for the governor to try to intervene.” Lockhart also noted that the government’s brief “is conspicuously silent as to whether Pleau has standing.” “If he concedes that Pleau doesn’t have standing, he is only an amicus,” Lockhart said. “He is left as amicus to a case that has no legitimate party.” Sheri Qualters can be contacted at [email protected].

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