Sunday, February 21, 2021

Case o' The Week: The Ninth Don't Feel Our Writ Appeal - Repp, the IADA, and Resolving Violations of Supervised Release

 Form 12 resolutions have a bad Rep[p] in the Ninth.

 United States v. Repp, 2021 WL 613385 (9th Cir. Feb. 17, 2021), decision available here.

Players: Decision by Judge Tallman, joined by Judge Callahan and visiting DJ Christensen.  

Facts: Repp was on supervised release out of the CD Cal. Id. He committed a new federal crime, and was incarcerated in Arizona. Id.

  After the district court in L.A. signed an arrest warrant for the “Form 12” (alleging a violation of supervised release), a detainer was slapped on Repp. Id.

  Repp moved the L.A. District Court judge for a writ of habeas corpus ad prosequendeum, to the Warden at FCI Phoenix, directing the warden to transport him to L.A. to resolve the Form 12. Id.

  That motion was denied by the CD Cal. District Judge. Id. Repp appealed the denial of the order.

Issue(s): “May an inmate currently serving time on one federal sentence expedite the resolution of a newly lodged detainer to answer for a supervised release violation in another federal district that was triggered by his commission of the crime for which he is currently incarcerated?” Id. at *1.

Held: “Because the denial of Repp's motion is not a final or appealable collateral order, we lack jurisdiction over this appeal and must dismiss it.” Id.

Of Note: A motion for a “writ of habeas ad prosequendum” seems a laborious path to get a Form 12 in another district resolved. Why didn’t Repp just file an Interstate Agreement on Detainers Act (“IADA”) demand? See 18 USC App. 2 § 2. 

Because, to our great frustration, the IADA does not apply to detainers tied to violations of supervised release. See Repp, 2021 WL 613385, at *1 (quoting United States v. Bottoms, 755 F.2d 1349, 1350 (9th Cir. 1985)). While Bottoms interpreted the language of the IAD, it also strongly hinted that Congress should clean up the wording of this statute. See Bottoms, 755 F.2d at 1349.

The Ninth in Bottoms was right about the language of the IADA – it makes no sense that a serial bank robber can make an IADA claim to resolve all charged robbery cases in multiple jurisdictions, but an inmate with a hanging Form 12 cannot use the IADA to do the same thing. Note, however, that Repp only holds that the Ninth has no jurisdiction to consider Repp’s appeal – it does not appear to prohibit Repp’s “writ ad prosequendum” gambit. This creative writ approach appears to have survived, for us to try again with a more sympathetic district court.  

How to Use: Form 12 detainers have a real, negative impact on the access to programing in BOP custody, and on early release to half houses – exactly the opposite of what Probation should be encouraging. Until the IADA is fixed, this unfair discrepancy in lack of access to this mechanism (between “new” cases and Form 12 allegations) is an interesting theory for reduced custodial terms in Form 12 hearings (along the lines of the good ole’ Sanchez-Rodriguez “lost opportunity to serve a concurrent sentence” theory). See United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en banc). Notably, in Repp Judge Tallman expressly flags this “procedural delay” argument as a pitch that Repp can make when he finally gets back to Los Angeles to be sentenced on his supervised release violation. See Repp, 2021 WL 613385, at *2.

For Further Reading: In 2013, history was made here in San Francisco when Attorney General Eric Holder announced the new “Smart on Crime” initiative. See Smart on Crime overview here

That brave reform effort worked -- and its principles were then adopted across the political divides. See article here

Judge Garland (finally) has a confirmation hearing scheduled for his new A.G. gig. See NPR article here

Our first question for His Honor? How quickly will DOJ revive A.G. Holder’s Smart on Crime principles?



Image of “Repp” from .


Steven Kalar, Federal Public Defender N.D. Cal. Website at




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