UNITED STATES OF AMERICA, PETITIONER V. GUADALUPE MONTALVO-MURILLO No. 89-163 In the Supreme Court of the United States October Term, 1989 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Question Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 876 F.2d 826. The district court opinion (App., infra, 16a-31a) is reported at 713 F. Supp. 1407. JURISDICTION The judgment of the court of appeals (App., infra, 32a) was entered on May 31, 1989. The jurisdiction of this Court is invoked under 28 U. S.C. 1254(1). STATUTE INVOLVED Section 3142(f) of the Bail Reform Act of 1984, 18 U.S.C. 3142(f) (Supp. V 1987), provides in pertinent part: (f) Detention Hearing. The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community -- * * * * * The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the Government may not exceed three days. * * * QUESTION PRESENTED Whether a failure to observe the "first appearance" requirement of the Bail Reform Act, 18 U.S.C. 3142(f) (Supp. V 1987), requires the release of a person who would otherwise be subject to pretrial detention. STATEMENT The Bail Reform Act of 1984, 18 U.S.C. 3141 et seq., provides that a person charged with an offense shall be detained prior to trial if "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. 3142(e) (Supp. V 1987). The Act further provides that the government or the judicial officer may initiate detention proceedings and that a detention hearing "shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance." 18 U.S.C. 3142(f) (Supp. V 1987). In this case, the district court found that no release conditions would assure respondent's appearance at trial or ensure that he would not pose a danger to the community. Nonetheless, the district court and the court of appeals both concluded that respondent was entitled to pretrial release because there had been a failure to observe the "first appearance" provision of the Bail Reform Act. 1. On Wednesday, February 8, 1989, at approximately 3:30 a.m., United States Customs Service agents stopped respondent at a highway checkpoint north of Orogrande, New Mexico, near the Mexican border. The agents questioned respondent, who was the lone passenger in a pickup truck, concerning his citizenship. Respondent produced papers showing that he was a Mexican citizen legally residing in the United States. The agents then examined respondent's truck. They noted that it had been mounted with an auxiliary gas tank but that the tank was not connected to the engine. Upon further examination, they found that the tank had been fitted with a concealed door. Opening that door, the agents discovered approximately 72 pounds of cocaine, which had a wholesale value of almost $1 million. The agents also found $6,500 in U.S. currency concealed in the passenger section of the truck. App., infra, 4a, 17a, 21a, 23a; Feb. 23, 1989, Tr. 73-77. The agents transported respondent to the Customs Service's local office, where they read respondent his rights and explained them to him. Respondent stated that he had intended to deliver the cocaine to purchasers in Chicago, Illinois, and he agreed to cooperate with the Drug Enforcement Administration (DEA) by making a "controlled delivery" of the cocaine under government surveillance. Later that day, several DEA agents escorted respondent by air carrier to Chicago, while another agent drove respondent's pickup truck to that destination. The agents parked the truck at a location in Chicago designated by respondent, but the anticipated purchasers failed to appear to complete the transaction. Meanwhile, on Friday, February 10, 1989, the government filed a criminal complaint in the United States District Court for the District of New Mexico charging respondent with possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841. App., infra, 5a, 17a-18a; Feb. 23, 1989, Tr. 81-82. 2. Arrangements were then made to transfer respondent back to New Mexico. A magistrate in the District of New Mexico issued a warrant for respondent's arrest, and respondent was then taken before a magistrate in the Northern District of Illinois for a transfer hearing pursuant to Fed. R. Crim. P. 40. The magistrate in Illinois advised respondent, who was represented by a public defender, that he faced criminal charges in New Mexico. A local Assistant United States Attorney then explained that "the government was going to move for detention." Feb. 10, 1989, Tr. 4. After consulting with respondent's counsel, however, the Assistant United States Attorney said that the parties had agreed that if respondent were returned immediately to New Mexico, "we would not hold the detention hearing here and they would waive their right at this point and, however, not waive any rights to preliminary hearings or detention hearings in that district." Id. at 4-5. The magistrate asked whether respondent consented to the agreement, and he replied through an interpreter, "Yes. They want me to, I am with them." Id. at 7. The magistrate indicated that he would "enter an order of removal specifically reserving the issues of * * * detention and probable cause for determination by the District Court in New Mexico." Id. at 7-8. Respondent was returned to New Mexico that evening, Friday, February 10, and placed in the custody of local officials. App., infra, 5a-6a, 18a-19a. 3. On Monday morning, February 13, 1989, the DEA asked the New Mexico magistrate's office to arrange for respondent's detention hearing. The magistrate's office scheduled the hearing for Thursday, February 16. At the February 16th hearing, the magistrate described the charges against respondent, who was represented by retained counsel, and read him his rights. The magistrate then verified that the Pretrial Services Office had not yet prepared a report on respondent. The magistrate stated: All right. I think, therefore, in the interest of judgment (sic, justice), that I should continue the detention hearing for a maximum of three working days, as the United States wishes to request. The detention and motion for detention will need to be filed. Otherwise, I will review the conditions of release and consider those within three working days. Feb. 16, 1989, Tr. 5. /1/ After observing that Monday, February 20, was a federal holiday, the magistrate rescheduled the hearing for Tuesday, February 21. Id. at 5-6. The government filed a formal motion for detention on February 17, and the magistrate held the detention hearing, as scheduled, on February 21. At the conclusion of the hearing, the magistrate decided to release respondent upon the posting of a $50,000 bond and compliance with other conditions and restrictions. App., infra, 6a-8a, 19a-20a; Feb. 21, 1989, Tr. 1-21. 4. The government immediately requested that the district court review the magistrate's decision (see 18 U.S.C. 3145(a)(1) (Supp. V 1987)), and the district court held a de novo detention hearing on February 23, 1989. The government submitted that respondent posed both a risk of flight and a danger to the community. Feb. 23, 1989, Tr. 28, 121-128. Respondent contested that submission, id. at 108-120, 128-130, and also argued that he was entitled to release because the detention hearing had not been held within the time limits set forth in Bail Reform Act. Id. at 11-12, 17, 29-31. On March 1, the district court ruled on the detention motion. The court found that respondent "has failed to rebut the resulting statutory presumption that no condition or combination of conditions will reasonably assure (his) appearance as required and the safety of the community." App., infra, 16a; see id. at 21a-24a. The court further concluded, however, that "there has been a failure to comply" with the Bail Reform Act's procedural provisions, "which precludes further detention of the (respondent) and mandates the setting of conditions for his release." Id. at 16a-17a. The district court relied on Section 3142(f) of the Bail Reform Act, which states that a detention hearing "shall be held immediately upon a person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance" and further provides that "(e)xcept for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the government shall not exceed three days." See App., infra, 24a-26a. The district court concluded that the Illinois magistrate's February 10th removal order and the New Mexico magistrate's February 16th sua sponte continuance, which was granted "in the interest of justice," App., infra, 19a, resulted in a violation of Section 3142(f)'s time limits. Id. at 24a-30a. The court stated that a person may waive these time limits, but it concluded that respondent did not "knowingly and voluntarily" waive his right to a prompt hearing in this case. Id. at 27a-28a, 30a. Turning to the issue of the appropriate remedy, the court acknowledged that "Congress did not explicitly state that a failure to comply with Section 3142(f) mandates" pretrial release. App., infra, 31a. The court nevertheless concluded that "meaning can be given to Section 3142(f) and Congress' intent can be fulfilled only by pretrial release under conditions." Ibid. The court amended the magistrate's release conditions to require bond in the amount of $88,500 and issued an order allowing respondent's release. Id. at 16a-17a, 31a. 5. The government appealed and requested a stay of the district court's order. The court of appeals issued a temporary stay but ultimately affirmed the district court's ruling. App., infra, 1a-15a. The court of appeals concluded that "although the delay between the (respondent's) appearance in Illinois on February 10 and his first appearance in New Mexico on February 16 might be viewed as a minor violation of the maximum permissible period for a defense requested continuance, the further continuance of the hearing by the magistrate, sua sponte, constituted a material violation of the specific instructions Congress provided in crafting Section 3142(f)." App., infra, 13a. The court further stated: If the mandatory restrictions on the length of time a hearing can be continued, delayed, or postponed are to have any import, we believe the consequences for violations, at least where material and not the fault of the defendant, must likewise be substantive. Under the circumstances of this case, the subsequent holding of a de novo hearing by the district court did not cure the fact that the New Mexico magistrate was without authority to extend the date of the hearing from February 16 to February 21 absent a finding of good cause. Thus, the district court was correct in selecting the only meaningful remedy available -- release on conditions. Id. at 14a-15a. Since his release, respondent has failed to appear, as required, for subsequent court appearances. He is believed to have fled to Mexico. /2/ REASONS FOR GRANTING THE PETITION The Bail Reform Act of 1984, 18 U.S.C. 3141 et seq., "represents the National Legislature's considered response to numerous perceived deficiencies in the federal bail process." United States v. Salerno, 481 U.S. 739, 742 (1987). It specifies the standards judicial officers must apply and the procedures they must follow in making pretrial detention and release determinations. See 18 U.S.C. 3142 (Supp. V 1987). Respondent met the standard for pretrial detention because he was found to present both a serious risk of flight and a danger to the community. The court of appeals found, however, that the magistrate made a procedural error in handling the detention issue: he failed to observe the "first appearance" provision of Section 3142(f) by not holding a detention hearing within the prescribed period after respondent's first appearance in court. The question presented by this case is whether that procedural misstep entitles respondent to automatic pretrial release without regard to the risk that he will flee or the danger that he poses to the community. This question, which has produced a conflict among the courts of appeals, has great practical significance. The court of appeals' resolution of the issue is incorrect and warrants this Court's review. 1. Section 3142(f) of the Bail Reform Act provides that upon motion of the government (or in certain circumstances, on the judicial officer's own motion) the judicial officer "shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community." 18 U.S.C. 3142(f) (Supp. V 1987). Section 3142(f) further states: The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. This so-called "first appearance" provision has been a source of persistent controversy. For example, the courts of appeals have disagreed on whether a defendant may waive his right to an immediate detention hearing, /3/ what constitutes a "first appearance," /4/ when a judicial officer may grant a continuance sua sponte, /5/ and how weekends and holidays should be treated in calculating the time periods for a continuance. /6/ These differences have resulted in substantial variation among the circuits in the procedures for making pretrial detention determinations. On a more fundamental issue, the courts of appeals are in disagreement concerning the appropriate remedy for failure to comply with the "first appearance" requirement. The First, Fourth, and Eleventh Circuits have indicated that a violation of the "first appearance" requirement does not prevent the government from seeking pretrial detention at a subsequent detention hearing. /7/ The Ninth Circuit, joined by the Tenth Circuit in this case, have held, however, that a failure to observe that provision immunizes the person from subsequent detention. /8/ Although it is by no means clear that the delay in holding the detention hearing in this case violated the "first appearance" requirement, we limit our petition to the question whether the court of appeals chose the appropriate remedy for that arguable lapse. That question, which arises whenever a court finds that there has been a failure to follow the Bail Reform Act's procedural requirements, has continuing and far-reaching importance beyond the magistrate's supposed procedural error in this case. As Congress noted in enacting the Bail Reform Act, the government has encountered serious difficulties in securing the appearance of drug traffickers at trial. See S. Rep. No. 225, 98th Cong., 1st Sess. 20 (1983). /9/ Procedural errors in the handling of detention hearings are bound to occur from time to time, particularly since the statute requires that the parties and the court act with great dispatch in the often chaotic period following a defendant's arrest. If a procedural slip -- even a minor one such as exceeding by one day the permissible period for holding a detention hearing -- requires the automatic release of the defendant, no matter how strong the case for detention, many defendants who are charged with serious crimes can be expected to flee before trial or commit serious crimes while on release. The class of persons as to whom the rule of automatic release will make a difference in their detention status are, after all, the persons who would otherwise be detained pending trial, i.e., those persons for whom conditions of release will not "reasonably assure" their appearance at trial or the safety of the community. 18 U.S.C. 3142(e) (Supp. V 1987). 2. We submit that the court of appeals erred in imposing a remedy so plainly at odds with the objectives of the Bail Reform Act. The text of the statute does not require, or even suggest, that a magistrate's (or the government's) failure to observe the "first appearance" provision requires the release of a person who is otherwise subject to pretrial detention. Nor is there anything in the legislative history of the statute to suggest that Congress contemplated that absolute immunity from detention would follow from any violation of the statutory procedures. See S. Rep. No. 225, supra, at 21-22. The logical remedy for a failure to provide a detention hearing at the defendant's "first appearance" is to provide a detention hearing at the earliest practicable opportunity thereafter. That remedy is responsive to the dual goals of the Bail Reform Act to require prompt resolution of the detention issue but at the same time to ensure that defendants are not released if it is determined that they present a serious risk of flight or danger to others. The remedy we propose comports not only with the specific objectives of the Bail Reform Act, but also with the principle that the ultimate goal of criminal procedure is a just adjudication. An unnecessarily broad remedy, as much as an inadequately narrow remedy, subverts that goal. See, e.g., United States v. Mechanik, 475 U.S. 66, 72 (1986). Thus, this Court has stated that, even in the case of constitutional violations, "remedies should be tailored to the injury suffered * * * and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364 (1981). The court of appeals' remedy in this case, which apparently has resulted in the predictable flight of a major drug trafficker, is fundamentally incompatible with "society's interest in the administration of criminal justice" (ibid.). The court of appeals' remedy is also excessive when measured against the prejudice that the error caused respondent. The only prejudice respondent suffered was that he was held in custody for a few days longer than he would have been if a detention hearing had been held earlier and the district court had decided that respondent should be released. /10/ The lower courts did not find, nor is there any basis for assuming, that the delay in holding the detention hearing prejudiced respondent in his ability to defend against the detention motion or to defend against the underlying allegations in the case. Respondent's own conduct suggests that the delay was not prejudicial to him. Although he was represented by counsel, respondent did not insist on a prompt detention hearing. He specifically waived his right to an immediate detention hearing before the Illinois magistrate, he did not object to the New Mexico magistrate's decision to continue the hearing for three working days, and he did not move to accelerate the hearing during that period. See pp. 4-5, supra. Respondent's failure to insist on a prompt hearing is itself a persuasive indication that he suffered no prejudice, and perhaps even obtained some advantage, from the delay. Cf. Barker v. Wingo, 407 U.S. 514 (1972). In any event, the blunderbuss remedy of automatic release, regardless of the degree of prejudice and regardless of the risks associated with release, is inconsistent with this Court's concern that judicial remedies be responsive to the competing interests of the individual, the government, and society within the criminal justice system. In short, a rule of automatic release converts the pretrial detention procedures into a "'a game in which a wrong move by the judge means immunity for the prisoner.' " Jones v. Thomas, No. 88-420 (June 19, 1989), slip op. 10. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S. G. DENNIS, JR. Assistant Attorney General WILLIAM C. BRYSON Deputy Solicitor General JEFFREY P. MINNEAR Assistant to the Solicitor General JULY 1989 /1/ Although the magistrate's statement suggests that the United States desired a continuance, the district court concluded that neither the government nor respondent formally moved for a continuance and that they apparently were prepared to proceed with the detention hearing on February 16. See App., infra, 19a. Respondent's counsel (who, like the government attorney, had not been present at the Illinois proceeding) did not specifically object to the continuance, but she did contend that the government had failed to move for detention in the proceeding before the Illinois magistrate, stating that "it's my understanding that the government is required to move for detention in Chicago where (the defendant) had his initial appearance. I think that he waived his identity hearing, but I don't believe he waived the detention hearing at that point." Feb. 16, 1989, Tr. 5. The New Mexico magistrate responded that "that's a matter we will have to take up -- you can take up with the district judge if you want to." Ibid. /2/ Respondent's apparent flight does not render this case moot. The controversy remains live because its resolution will determine the course of proceedings if and when respondent is rearrested. See United States v. Sharpe, 470 U.S. 675, 681 n.2 (1985) ("Because our reversal of the Court of Appeals' judgment may lead to the reinstatement of respondent's convictions, respondent's fugitive status does not render this case moot.") See also Florida v. Rodriguez, 469 U.S. 1 (1984). If this Court reverses the court of appeals' holding that the magistrate's supposed failure to comply with the Bail Reform Act's "first appearance" requirement does not entitle respondent to release, then the government could detain respondent immediately upon his rearrest. If, however, the court of appeals' decision is left standing, then the government cannot detain respondent unless it first seeks revocation of the existing release order. See 18 U.S.C. 3148(b) (Supp. V 1987). /3/ Compare United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989) (en banc) ("We now hold that both the time requirements and the detention hearing itself provided for in section 3142 are waivable."), and United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir. 1985) ("Coonan, however, would have us hold that the statutory right to a detention hearing within, at most, five days of the initial appearance is not waivable. This we decline to do * * *."), with United States v. Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir. 1985) ("The Bail Reform Act does not permit a waiver of time requirements by the defendant.") See also United States v. Madruga, 810 F.2d 1010, 1014 (11th Cir. 1987) ("Unless a defendant objects to the proposed hearing date on the stated ground that the assigned date exceeds the three-day maximum, he is deemed to acquiesce in up to a five-day continuance."). /4/ Compare United States v. Maull, 773 F.2d 1479, 1483 (8th Cir. 1985) (en banc) (footnote omitted) ("A fair reading of the statute is not that a detention hearing must be held "immediately" when a defendant first appears in court, else to be forever barred, but rather that once a motion for pretrial detention is made, a hearing must occur promptly thereafter."), with United States v. Al-Azzawy, 768 F.2d at 114 ("The 'first appearance' would appear to mean the post-arrest hearing prescribed in Rule 5, Fed. R. Crim. P."). See also United States v. Melendez-Carrion, 790 F.2d 984, 990 (2d Cir. 1986) ("a removal hearing may precede a detention hearing, leaving the latter normally to occur in the district of prosecution after removal"). /5/ Compare United States v. Alatishe, 768 F.2d 364, 369 (D.C. Cir. 1985) ("except in the most compelling situations, the judicial officer should not act sua sponte to delay the detention hearing"), with United States v. Hurtado, 779 F.2d 1467, 1475 (11th Cir. 1985) ("a judicial officer has no authority to act sua sponte on questions of temporal continuances"). /6/ Compare United States v. Melendez-Carrion, 790 F.2d at 991 (time computation excludes weekends and holidays), with United States v. Hurtado, 779 F.2d at 1474 n.8 (time computation includes weekends and holidays). /7/ See United States v. Vargas, 804 F.2d 157, 162 (1st Cir. 1986) ("we see no basis for reversing the district court's detention order based on (the defendant's) arguments concerning the adequacy and timeliness of the detention hearing"); United States v. Clark, 865 F. 2d at 1436 (4th Cir.) ("in cases where the requirements of the Bail Reform Act are not properly met, automatic release is not the appropriate remedy"); United States v. Hurtado, 779 F.2d at 1481-1482 (even though detention hearing held out of time, court instructs district court to "hold a de novo hearing under 18 U.S.C. Section 3142 at which the merits of pretrial detention in this case are to be reconsidered"). /8/ See United States v. Al-Azzawy, 768 F.2d at 1145 ("If the time constraints are violated in any material way, the district court should not order unconditional pretrial detention of the person."); App., infra, 15a ("Thus, the district court was correct in selecting the only meaningful remedy available -- release on conditions."). See also United States v. O'Shaughnessy, 764 F.2d 1035, 1038-1039 (holding that noncompliance with the first appearance provision precludes detention), appeal dismissed on rehearing as moot, 772 F.2d 112 (5th Cir. 1985). /9/ The Senate Report explains: It is well known that drug trafficking is carried on to an unusual degree by persons engaged in continuing patterns of criminal activity. Persons charged with major drug felonies are often in the business of importing or distributing dangerous drugs, and thus, because of the nature of the criminal activity with which they are charged, they pose a significant risk of pretrial recidivism. Furthermore, the Committee received testimony that flight to avoid prosecution is particularly high among persons charged with major drug offenses. Because of the extremely lucrative nature of drug trafficking, and the fact that drug traffickers often have established substantial ties outside the United States from whence most dangerous drugs are imported into the country, these persons have both the resources and foreign contacts to escape to other countries with relative ease to avoid prosecution for offenses punishable by lengthy prison sentences. Even the prospect of forfeiture of bond in the hundreds of thousands of dollars has proven to be ineffective in assuring the appearance of major drug traffickers. S. Rep. No. 225, supra, at 20 (footnote omitted). /10/ Of course, since the district court determined that, but for the delay in holding the detention hearing, respondent should be detained, it turns out that the delay did not prejudice respondent at all, since the district court presumably would have reached the same conclusion following an earlier detention hearing and would have ordered respondent detained for the entire period before the trial. APPENDIX