United States of America v. Demetrius Desean Thomas, a/k/a Roc

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5049
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIUS DESEAN THOMAS, a/k/a Roc,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cr-00050-RCC-1)
Submitted: August 21, 2009 Decided: September 3, 2009
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark L. French, CRISWELL & FRENCH, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, R. Gregory McVey, Assistant United States Attorney,
Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Demetrius Desean Thomas entered a conditional guilty
plea to distribution of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006), reserving his right to challenge the
district court’s denial of his motion to dismiss the indictment
for an alleged violation of his speedy trial rights under
Article III of the Interstate Agreement on Detainers Act
(“IADA”), 18 U.S.C. App. 2 (2006). Thomas was sentenced to
seventy months’ imprisonment. Finding no error, we affirm.
Thomas’s counsel asserts on appeal that Thomas
attempted to properly invoke his right to a speedy trial under
the IADA. Counsel argues that the district court’s denial of
the motion to dismiss the indictment because of Thomas’s
technical non-compliance with Article III renders an unjust
result.
We review “de novo the district court’s denial of a
motion to dismiss an indictment where the denial depends solely
on questions of law.” United States v. Hatcher, 560 F.3d 222,
224 (4th Cir. 2009). The IADA provides an incarcerated
prisoner, against whom a detainer is lodged in another
jurisdiction, the right to demand trial within 180 days. 18
U.S.C. App. 2, § 2, Art. III(a). It is the prisoner’s
responsibility to “have caused to be delivered to the
prosecuting officer and the appropriate court of the prosecuting
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officer’s jurisdiction written notice of the place of his
imprisonment and his request for a final disposition to be made
of the indictment, information, or complaint.” Id. The 180-day
time period detailed in Article III(a) “does not commence until
the prisoner’s request for final disposition of the charges
against him has actually been delivered to the court and
prosecuting officer of the jurisdiction that lodged the detainer
against him.” Fex v. Michigan, 507 U.S. 43, 52 (1993).
Here, the federal detainer form detailed the date and
court in which the detainer was filed and the prisoner’s right
to a speedy trial. Additionally, the form advised that the
prisoner “should periodically inquire as to whether [the]
written notice of request for a final disposition of the charges
against [the prisoner] ha[d] been received by the appropriate
U.S. Attorney and the appropriate U.S. District Court.” A copy
of the form was to be retained by the prisoner and the remaining
three copies were to be sent to the U.S. Marshal’s Office, the
U.S. Attorney’s Office, and the district court.
The provision of the federal detainer form at issue
reads: “I (do)(do not) demand a speedy trial on the charge(s).”
Thomas did not make a selection. Furthermore, the form was
mailed only to the U.S. Marshal’s Office. There was no evidence
presented to show that either the U.S. Attorney’s Office or the
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district court were notified of Thomas’s desire for a speedy
trial.
Counsel, however, asserts that Thomas “did everything
within his power and control to make sure that his request for a
speedy trial had been properly made.” Nevertheless, Thomas
failed to strictly comply with IADA procedures. See, e.g.,
United States v. Henson, 945 F.2d 430, 434 (1st Cir. 1991)
(stating strict compliance with Article III is necessary to
place prosecuting authority on notice that 180-day provision has
been invoked). Moreover, any alleged negligence on the part of
prison or law enforcement personnel does not excuse non-
compliance with Article III. See Fex, 507 U.S. at 49-52. Thus,
we conclude the district court did not err in denying Thomas’s
motion to dismiss the indictment.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid in the decisional
process.
AFFIRMED

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