577 F2d 354 United States v. West

577 F.2d 354

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert WEST, Kenny Randall, Robert Higgins, William Miller
and Thomas Swan, Defendants-Appellants.
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert HIGGINS and Thomas Swan, Defendants-Appellants.

Nos. 77-5194 and 77-5321.

United States Court of Appeals,
Fifth Circuit.

July 31, 1978.

Theodore J. Sakowitz, Federal Public Defender, Paul M. Korchin, Asst. Federal Public Defender, Miami, Fla., for West.

Jack J. Taffer, Miami, Fla. (Court-Appointed), for Randall.

Joel Hirschhorn, Miami, Fla., for Higgins.

Fred Haddad, Fort Lauderdale, Fla., for Swan.

Jack Eskenazi, U. S. Atty., Karen L. Atkinson, Charles O. Farrar, Jr., Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before COLEMAN, HILL, and RUBIN, Circuit Judges.

PER CURIAM:

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1

The final disposition of Thomas Swan's appeal in U. S. v. Higgins and Swan, 5 Cir. 1978, 568 F.2d 365, has awaited the Supreme Court's decision in United States v. Mauro, 1978, --- U.S. ----, 98 S.Ct. 1834, 56 L.Ed.2d 329.1 The Court's decision that a writ of habeas corpus ad prosequendum does not constitute a "detainer" within the meaning of the Interstate Agreement on Detainers means that the prosecution of Swan at his second trial was lawful.

2

For the reasons advanced in our prior opinion, and on the authority of Mauro, supra, the conviction of Thomas Swan is AFFIRMED.

1

In our prior opinion, United States v. West, 5 Cir. 1978, 568 F.2d 365, we inadvertently indicated that the appeal of the defendant Swan would be severed in 77-5194, the five-defendant case, in which Swan was tried along with the defendant West and three others. Our opinion today in fact disposes of the sole remaining issue in the two-defendant case, 77-5321, in which Swan was tried with his co-defendant Higgins