The opinion of the court was delivered by: J. Leon Holmes United States District Judge
Allen Polk filed a pro se motion to dismiss the indictment against him on the ground that the United States has violated two provisions of the Interstate Agreement on Detainers Act ("IADA"), 18 U.S.C. app. 2 § 2, Art. IV(c) and (e). First, Polk argues that the United States violated Art. IV(c), the "speedy trial" provision, because it failed to commence his trial on the federal charges pending against him within 120 days of his March 2006 transfer from Arkansas state custody to federal custody. Second, Polk argues that the United States violated Art. IV(e), the "anti-shuttling" provision, by transferring him from federal custody back into state custody in May 2006 without having brought him to trial. This motion requires the Court to determine whether a violation of the IADA has occurred and, if so, whether the charges against Polk should be dismissed with or without prejudice. For the reasons stated below, the indictment against Polk will be dismissed without prejudice.
Polk was indicted on February 2, 2005, for being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1), and for possession of a firearm with a removed serial number, a violation of 18 U.S.C. § 922(k). On February 15, 2005, Polk appeared and entered a plea of not guilty. A few days later, in Arkansas state court, Polk was sentenced to a term of six years of imprisonment for the conduct underlying the federal indictment. After Polk began serving this sentence with the Arkansas Department of Correction, a federal detainer was lodged against him to secure his presence in the federal proceedings.
On October 28, 2005, this Court scheduled Polk's trial on the federal charges for February 6, 2006. On January 31, 2006, however, Polk filed notice of his intent to rely on a defense of insanity and requested a mental evaluation. The United States then moved for a mental evaluation, and, in response to the United States's motion, Polk waived "any speedy trial requirements due to his mental evaluation." On February 2, the Court granted the government's motion, ordered that Polk be remanded to federal custody for a psychiatric examination, and continued his trial. On March 8, the Court approved a petition for writ of habeas corpus ad prosequendum ordering that Polk be transported to a federal facility "in New York for a psychological exam and that after that has been concluded that [Polk] be returned to the custody of the Jailer."
On March 16, 2006, Polk was taken into federal custody for the psychiatric examination. Eight days later, on March 24, the Court rescheduled Polk's trial for August 7, 2006. On May 17, following his psychiatric examination, Polk was returned to the Pulaski County Jail. At that point, Polk was back in Arkansas state custody. On July 7, 2006, Polk was released by the state on parole. Because of the detainer, he was delivered to the United States Marshals Service. On July 20, 2006, after a bond hearing, the Honorable John F. Forster, Jr., United States Magistrate Judge, ordered that Polk be detained pending trial.
On July 26, 2006, Polk filed a motion for continuance of his trial date "to obtain an independent evaluation of his mental state," stating that he "waive[d] any speedy trial requirements due to this continuance." The Court granted this motion on August 3, 2006, rescheduling Polk's trial for December 4, 2006. On December 4, however, during a hearing before this Court, Polk filed the instant motion to dismiss and a second motion, pro se, for continuance. The Court granted Polk's pro se motion for continuance, rescheduling the trial for April 9, 2007.
The IADA prescribes procedures for transferring a prisoner from the jurisdiction in which he is incarcerated to another jurisdiction seeking to prosecute him. Article IV of the IADA provides in pertinent part:
(c) In respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment . . . , such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
18 U.S.C. app. 2 § 2, Art. IV. The IADA further provides that if an action on the indictment is not brought to trial within the 120-day period, the court of the jurisdiction where the indictment is pending "shall enter an order dismissing the same with prejudice." Id. § 2, Art. V(c).
Under this agreement, the term "State" refers to either the United States or an individual state of the United States. Id. § 2, Art. II(a). A "sending State" is the State in which the prisoner is incarcerated at the time that a request for custody of the prisoner is initiated. Id. § 2, Art. II(b). The "receiving State" is the State in which trial is to be had on an outstanding indictment, information, or complaint against the prisoner. Id. § 2, Art. II(c). The United States and Arkansas are both parties to the IADA. See id. § 2; ARK. CODE ANN. § 16-95-101. Thus, in Polk's case, Arkansas is the sending State and the United States is the receiving State.
Although Articles IV and V provide that the court "shall" dismiss an indictment with prejudice when violations of Article IV(c) or (e) occur, the IADA has been amended with special provisions that apply when the United States is the receiving state.
Notwithstanding any provision of the agreement on detainers to the contrary, in a case in which the United ...