Petitioners Brief — United States v. Montalvo-Murillo

In the Supreme Court of the

OCTOBER TERM, !989

UNITED STATES OF AMERICA. PETITIONER

GUADALUPE MONTALVO-MURILLO

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

Eowarp 8.G. Dennss. Je

Assistant Attorney General

Wittam C. BRYSON

Deputy Solnitor General

JereRmey P. Minbar

issistanit to the Solicitor General

Department of Justice

Washington, D.C. 20830

(202) 633-2217

QUESTION PRESENTED

Whether a failure to observe the “first appearance” re-

quirement of the Bail Reform Act, 18 U.S.C. 3142(f) (Supp

V 1987), requires the release of a person who would other-

wise be subject to pretrial detention.

TABLE OF CONTENTS

A tailure to comply with the first appearance provi-

sion of the Bail Reform Act does not require the

release of a person who would otherwise be subject

EE

A. The Bail Reform Act does not require that a

person who has been detained based on an un-

timely but otherwise adequate detention hear-

Nee Meee ae er ecencce.

B. The remedy for failing to hold a detention hear-

ing at the defendant’s “first appearance” should

be to hold a detention hearing at the earliest op-

ee Ce ede c concer seecccees

C. Respondent suffered no prejudice as a result of

Ne Tweens

Ee |

TABLE OF AUTHORITIES

Cases:

Bank of Nova Scotia v. United States, 108 S. Ct.

Ce econes

Barker v. Wingo, 407 U.S. 514 (1972) .........

Bell v. Wolfish, 441 U.S. 520 (1979) ..........

Blunt v. United States, 322 A.2d $79 (D.C. \1974)

Chambers v. Maroney, 399 U.S. 42 (1970) .....

Chapman vy. California, 386 U.S. 18 (1967) \

Coleman v. Alabama, 399 U.S. 1 (970) ........

Delaware v. Van Arsdall, 475 U.S, 573 (1986) ..

—

(II!)

awenee =

10

10

15

24

28

IV

Cases — Continued: ee Page

Harrington v. California, 395 U.S. 35041969) .. 17

Hilton v. Braunskill, 481 U.S. 770 (1987) ...... 23

Jones v. Thomas, 108 S. Ct. 2522 (1989) ...... 27

Milton v. Wainwright, 407 U.S. 371 (1972) ..... 16

Moore V. Illinois, 434 U.S. 220 (1977) ......... 16

Pope v. Illinois, 481 U.S. 497 (1987) .......... 16

Rose v. Clark, 478 U.S. 570 (1986) ............ 16

Rushen v. Spain, 464 U.S. 114 (1983) ......... 16

Stack v. Boyle, 342 U.S. 1 (1951) ............. 17

United States v. Alatishe, 768 F.2d 364 (D.C. Cir.

EN 4b 6 be dhe banedand ane os coeeneseen 12

United States v. Al-Azzawy, 768 F.2d 1141 (9th Cir.

tt sas nkenesanadhtnetncéeennaieenin 12, 13, 20

United States v. Clark, 865 F.2d 1433 (4th Cir.

DT tush babdddes désaccusdeheanaercené 12, 13, 20

United States v. Coonan, 826 F.2d 1180 (2d Cir.

rr ee ee A 2 eS See 12, 20

United States v. Ewell, 383 U.S. 116 (1966) .... 22

United States v. Fortna, 769 F.2d 243 (Sth Cir-

SN bn 656000 evebeisandl scene . 26

United States v. Hasting, 461 U.S. 499 (1983) .. 16

United States v. Hurtado, 779 F.2d 1467 (ith Cir.

decks duuceusden bbe ieene. 12, 13, 20

United States v. Lane, 474 U.S. 438 (1986) ..... 16

United States v. Madruga, 810 F.2d 1010 (11th Cir.

ESE E Core ee er ny ae 12

United States v. Maull, 773 F. 2d 1479 (8th Cir.

Dt bistebsddckwbithsnnn teeta tk ace cue 12, 14

United States v. Mechanik, 475 U.S. 66 (1986) . 15

United States v. Melendez-Carrion, 790 F.2d 984 (2d

NS UE lid statins Cane So ern el ok 12, 14

United States v. Morrison, 449 U.S. 361 (1981). 16, 19

United States v. O'Shaughnessy, 764 ¥ 2d 1035, on

reh’g, 772 F.2d 112 (Sth Cif. 1985) .........., 21

a a me

Cases — Continued: . Page

United States v. Salerno, 481 U.S. 739 (1987) .. 11, 17

United States v. Vargas, 804 F.2d 157 (ist Cir.

EE Abb chendded nada kuenecdedubtedcoctaes 13

Wainwright v. Sykes, 433 U.S. 72 (1977) ....... 21

Constitution, statutes and rule:

U.S. Const.:

ET Ae a oP 17

Amend. VI (Confrontation Clause) ........ 16

Bail Reform Act of 1984, 18 U.S.C. 3141 et seg. 2, 10

18 U.S.C. 3142 (Supp. V 1987) ........... 8, 11

18 U.S.C. 3142(e) (Supp. V 1987) ......... 2, 19

18 U.S.C. 3142(f) (Supp. V 1987) ......... 2, 6, 7,

8, 11, 22, 23, 24

18 U.S.C. 3145(a)(1) (Supp. V 1987) ...... 6

SP ee EEE ocudcdecndcccecticescess 16

21 U.S.C. 841 (1982 & Supp. V 1987) ......... 4

Be ee EE So occ cewébcdcccctoscecs 27

ee EE co cadéscocevbocsedccceceds 16

Tt ae ee eet boneeeateben 15, 16

bed. R. Crim. P.:

a ae SK 16

Dt sic ceteee rate laleeaiaaht cannten; 4

I la aad ta de es aaron t tae 15, 16

Miscellaneous:

H.R. Rep. No. 304, 80th Cong., Ist Sess. (1947) |. 16

H.R. Rep. No. 308, 80th Cong., Ist Sess. (1947) |. 16

Hi. R. Rep. No. 352, 81st Cong., Ist Sess. (1949) | . 16

S. Rep. No. 225, 98th Cong., 2d Sess. (1983) ... 11, 12,

17, 18

In the Supreme Court of the Tnitcd States

OcTOBER TERM, 1989

No. 89-163

UNITED STATES OF AMERICA, PETITIONER

Vv.

GUADALUPE MONTALVO-MURILLO

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-1Sa)

is reported at 876 F.2d 826. The opinion of the district court

(Pet. App. l6a-3la) is reported at 713 F. Supp. 1407.

JURISDICTION

The judgment of the court of appeals (Pet. App. 32a)

was emered on May 31, 1989. The petition for a writ of

certiorart was filed on July 28, 1989, and was granted on

October 2, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

(1)

‘2

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:

Detention Hearing.— The judicial officer shall hold

a hearing to determine whether any condition or com-

bination 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 per-

son’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 the person may not exceed five days, and

a continuance on motion of the attorney for the

Government may not exceed three days. * * *

STATEMENT

The Bail Reform Act of 1984, 18 U.S.C. 3141 ef seg.

provides that persons charged with certain serious offenses

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 wou!d assure respondent's ap-

3

pearance 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 en-

titled 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 ques-

tioned respondent, who was the lone passenger of 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 aux-

iliary 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. Pet. App. 4a, 17a, 2la, 23a;

Tr. 73-77 (Feb. 23, 1989).

The agents transported respondent to the Customs Ser-

vice’s local office, where they read respondent his nights and

explained them to him. Respondent stated that he had in-

tended to deliver the cocaine to purchasers in Chicago,

Illinows. He agreed to cooperate with the Drug Enforcement

Agency (DEA) by making a “controlled delivery” 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

designaied by respondent, but the anticipated purchasers

tailed to appear to co...plete the transaction. Meanwhile,

4

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 posses-

sion of cocaine with intent to distribute it, in violation of

21 U.S.C. 841 (1982 & Supp. V 1987). Pet. App. 4a-Sa,

17a-18a; Tr. 81-82 (Feb. 23, 1989).

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 respon-

dent was 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 adyised respondent, who

was represented by a public defender, that he faced criminal

charges in New Mexico. A local Assistant United States At-

torney then explained that “the government was going to

move for detention.” J.A. 16. After consulting with re-

spondent’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.”

[bid. The magistrate asked whether respondent consented

to the agreement, and he replied through an interpreter,

“Yes. They want me to, | am with them.” /d. at 18. 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.” /d. at 19. Respondent was returned to New

Mexico on the same evening, Friday, February 10, and was

placed in the custody of local officials. Pet. App. Sa-6a,

18a-19a.

3. On Monday morning, February 13, 1989, the DEA

asked the United States magistrate’s office in New Mexico

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 repre-

sented 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 Lshould continue the detention hear-

ing tor a maximum of three working days, as the

United States wishes to request. The detention and mo-

tion for detention will need to be filed. Otherwise, |

will review the conditions of release and consider those

within three working days.

J.A. 23.' Atter observing that Monday, February 20, was

a federal holiday, the magistrate rescheduled the hearing

for Tuesday, February 21. /bid. The government filed a for-

mal motion for detention on February 17, and the

magistrate held the detent.on hearing, as scheduled, on

February 21. At the conclusion of the hearing, the

' 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 Pet. App. 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 tor detention in proceeding before

the Illinois magistrate, stating that “it’s my understanding that the

government ts required to move for detention in Chicago where [the

defendant) had his initial appearance. | think that he waived his iden-

tity hearmy, but | don't believe he waived the detention hearing at that

poms.” J.A. 23, 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.” Jbid.

6

magistrate decided to release respondent upon the posting

of a $50,000 bond and compliance with other conditions

and restrictions. Pet. App. 6a-8a, 19a-20a; J.A. 24-38.

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 govern-

ment submitted that respondent posed both a risk of flight

and a danger to the community. Tr. 28, 121-128 (Feb. 23,

1989). Respondent contested that submission, id. at 108-120,

128-130, and argued that he was entitled to release because

the detention hearing had not been held within the time

limits set forth in the Bail Reform Act. /d. at 11-12, 17,

29-31,

On March 1, the district court ruled on the detention mo-

tion. The court found that respondent “has failed to rebut

the resulting statutory presumption that no condition or

combination of conditions will reasonably assure [his] ap-

pearance as required and the safety of the community.” Pet.

App. 16a; see id. at 2la-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 [respondent] and mandates the setting

of conditions for his release.” Jd. 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 may not ex-

ceed three days.” See Pet. App. 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,” Pet. App. 19a,

resulted in a violation of Section 3142(f)’s time limits. /d.

at 24a-30a. The court stated that a person may waive those

time limits but concluded that respondent did not “know-

ingly and voluntarily” waive his right to a prompt hearing.

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 § 3142(f) mandates” pretrial release.

Pet. App. 3la. The court nevertheless concluded that “mean-

ing can be given to § 3142(f) and Congress’ intent can be

fulfilled only by pretrial release under conditions.” /bid. The

court amended the magistrate’s release conditions to require

bond in the amount of $88,500 and issued an order allow-

ing respondent’s release. /d. at 16a-17a, 31a.

5. The government appealed and requested a stay of the

district court’s order. The court of appeals issued a tem-

porary stay but ultimately affirmed the district court’s rul-

ing. Pet. App. la-iSa. 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 viola-

tion of the maximum permissible period for a defense re-

quested continuance, the further continuance of the hear-

ing by the magistrate, sua sponte, constituted a material

Violation of the specific instructions Congress provided in

crafting § 3142(f).” Pet. App. «3a. The court further stated:

It 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-1Sa.

Since his release, respondent has failed to appear, as re-

quired, for subsequent court appearances. Respondent's

counsel has confirmed that respondent is a fugitive. See Br.

in Opp. 4. He is believed to have fled to Mexico.?

SUMMARY OF ARGUMENT

The Bail Reform Act of 1984 specifies the standards that

judicial officers are to apply and the procedures that they

are to follow in making pretrial release and detention deci-

sions. See 18 U.S.C. 3142 (Supp. V 1987). The Act pro-

vides that upon motion for detention, a judicial officer shall

hold a detention hearing “immediately upon the person’s

first appearance before the judicial officer unless that per-

son, Or the attorney for the Government, seeks a con-

tinuance.” 18 U.S.C. 3142(f) (Supp. V 1987). But the Act

does not specify the consequences of a judicial officer's

failure to comply with that requirement.

The court of appeals erred in holding that a failure to

comply with the first appearance provision entitles a per-

son who would otherwise qualify for pretrial detention to

automatic release on conditions. That sweeping remedy

finds no warrant in the Bail Reform Act and is inconsistent

with this Court’s admonition that judicial remedies

* On June 9, 1989, the district court issued a warrant for respond

ent’s arrest, and on August 1, 1989, the court entered an order forfeiting

respondent's bond. Further proceedings in the district court are being

held in abeyance until respondent is reapprehended. See J.A. 8-10

9

should be tailored to the injury suffered and should not im-

pinge unnecessarily On competing interests. As this case

demonstrates, the court’s remedy produces irrational results

al great cost to society and the criminal justice system.

Uncer the court of appeals’ ruling, virtually any infrac-

tion of the ambiguously phrased first appearance provision

requires pretrial release of the defendant — even if, as in this

case, the judicial officer determines that no release condi-

tions can reasonably assure the defendant's subsequent ap-

pearance or the safety of the community. The court’s remedy

has predictable consequences. Upon release, the defendant

is Very likely to fulfill the judicial officer’s expectations and

flee the jurisdiction, resume his criminal activity or harm

a member of the community. At the same time, this costly

remedy does not cure any harm caused by the failure to hold

a timely detention hearing. Indeed, a defendant who would

have been detained following a prompt hearing has lost

nothing by the delay.

[he court of appeals’ overly broad and i'l-conceived

remedy is unnecessary. Where a detention hearing has not

been provided within the prescribed time limits, the com-

peling interests are properly accommodated by ensuring that

the detendant receives a detention hearing at the earliest

practicable opportunity. This accommodation preserves the

Bail Retorm Act’s fundamental objective of protecting the

integrity of the judicial process and the safety of the public

through the detention of persons who pose unavoidable risks

of tlhight or danger to the community. It also protects the

defendant’s interests by assuring that once the court is in-

formed of the delay it will provide the defendant what he

is due—a prompt but deliberate determination of his en-

tillement to release.

[his case demonstrates concretely the severe consequences

of the court of appeals’ remedy. The government was

prepared to conduct a detention hearing at respondent's

10

initial appearance before a United States magistrate in

Illinois. However, respondent, who was represented by

counsel, agreed to postpone the detention hearing until his

appearance before a United States magistrate in New Mex-

ico. The government also was prepared to conduct a deten-

tion hearing at that time. However, the New Mexico

magistrate continued the proceedings, and respondent, who

again was represented by counsel, did not object to the con-

tinuance. Indeed, respondent did not object to the timing

of the hearing until the day that the hearing took place.

Thus, when the district court reviewed the magistrate’s deci-

sion, the detention hearing had been held, and at that point

no curative steps were necessary. Moreover, since the district

court determined that, but for the delay, respondent should

be detained, it turned out that the delay did not prejudice

respondent at all.

The court of appeals’ remedy has resulted in release of

the respondent under conditions that the district court deter-

mined would not reasonably assure his appearance at trial

or the safety of the community. To no one’s surprise, re-

spondent has fled the jurisdiction to avoid prosecution. The

court's remedy has severely impeded the government’s pros-

ecution of a large-scale drug trafficker even though the pro-

cedural error did not prejudice respondent in any meaningful

way.

ARGUMENT

A FAILURE TO COMPLY WITH THE FIRST APPEARANCE

PROVISION OF THE BAIL REFORM ACT DOES NOT RE-

QUIRE THE RELEASE OF A PERSON WHO WOULD

OTHERWISE BE SUBJECT TO PRETRIAL DETENTION

A. The Bail Reform Act Does Not Require That A Person Who

Has Been Detained Based On An Untimely But Otherwise Ade-

quate Detention Hearing Must Be Released

|. The Bail Reform Act of 1984, 18 U.S.C. 3141 er seq.,

“represents the National Legislature’s considered response

to numerous perceived deficiencies in the federal bail proc-

ess.” United States v. Salerno, 481 U.S. 739, 742 (1987).

The Act substantially revised existing bail practices to ad-

dress, among other matters, “the need to permit the pretrial

detention of defendants as to whom no conditions of release

will assure their appearance at trial or assure the safety of

the community or of other persons.” S. Rep. No. 225, 98th

Cong., Ist Sess. 3 (1983).

The Bail Reform Act specifies the standards that judicial

officers are to apply and the procedures that they are to

follow in making pretrial release and detention decisions.

See 18 U.S.C. 3142 (Supp. V 1987). Section 3142(f) of the

Act states that upon motion of the government (or in cer-

tain circumstances, On a 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 ap-

pearance of the 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) additionally states:

The hearing shall be held immediately upon the per-

son’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 mouon of the person may not exceed five days, and

a continuance on motion of the attorney for the

Government may not exceed three days.

Ibid.

This so-called “first appearance” provision has become

a persistent source of pretrial disputés. The Bail Reform

Act does not define the provision’s central terms, such as

“tirst appearance” and “good cause,” which must be applied

to the highly variable circumstances preceding trial; in ad-

dition, the provision is silent with respect to questions such

12

as whether the defendant can waive the right to a prompt

detention hearing and how the time periods set forth in the

statute should be calculated.3

The most significant dispute with respect to the “first ap-

pearance” provision involves the issue of remedy. The Bail

Reform Act does not set forth what, if any, remedy is ap-

. propriate for a failure to observe the “first appearance” re-

quirement. Nor does the legislative history of the statute

shed any light on that question. The Senate Committee Re-

port accompanying the Bail Reform Act, which is the prin-

cipal source of historical guidance, is silent on the issue of

remedy. See S. Rep. No. 225, supra, at 21-22.4 Asa result,

> As we explain in greater detail in our petition (at 9-10), the courts

ot appeals have disagreed on various issues, including whether a de-

fendant may waive his right to an immediate detention hearing (com-

pare United States v. Clark, 865 F.2d 1433, 1436 (4th Cir. 1989) (en

banc), and United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir. 1985),

with United States v. Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir. 1985),

and United States v. Madruga, 810 F.2d 1010, 1014 (11th Cir. 1987));

what constitutes a “first appearance” (compare United States v. Maull,

773 F.2d 1479, 1483 (8th Cir. 1985) (en banc), with United States v.

Al-Azzawy, 768 F.2d at 1144, and United States v. Melendez-Carrion,

790 F.2d 984, 990 (2d Cir. 1986)); when a judicial officer may enter

a continuance sua sponte (compare United States v. Alatishe, 768 F.2d

364, 369 (D.C. Cir. 1985), with United States v. Hurtado, 779 F.2d

1467, 1475 (11th Cir. 1985)); and how weekends and holidays should

be treated in calculating the time periods for a continuance (compare

United States v. Melendez-Carrion, 790 F.2d at 991, with United States

Vv. Hurtado, 779 F.2d at 1474 n.8).

* The Senate Report notes that the time limitations in the “first ap-

pearance” provision are the same as those in the pretrial detention pro-

vision of the District of Columbia Code. S. Rep. No. 225, supra, at

22. The District of Columbia Court of Appeals has held, however, that

the government may move for detention under the local statute at any

point in the judicial proceeding. See Blunt v. United States, 322 A.2d

579, 583 (D.C. 1974) (“There is no requirement under the statute that

the government must make a motion for pretrial detention as soon as

13

the courts of appeals have divided sharply over the conse-.

quences that should flow when the detention hearing is not

held “immediately” upon the defendant’s “first appearance”

before a judicial officer (as the particular court interprets

that requirement). Some courts have held that a violation

of the “first appearance” requirement does not prevent the

government from seeking pretrial detention at a subsequent

hearing. See United States v. Vargas, 804 F.2d 157, 162 (Ist

Cir. 1986); United States v. Clark, 865 F.2d 1433, 1436 (4th

Cir. 1989) (en banc); United States v. Hurtado, 779 F.2d

1467, 1481-1482 (11th Cir. 1985). That is, even if the deten-

tion hearing is not held immediately upon the defendant’s

first appearance before a judicial officer, or within the short

periods allowed for continuances, those courts have taken

the position that the violation does not permanently disable

the government from seeking, and the court from granting,

pretrial detention if it is otherwise justified under the statute.

Other courts, including the court below, have taken the op-

posite position, holding that once a violation of the “first

appearance” requirement occurs, then the court may not

grant a detention order no matter how compelling the case

for detention may be. See United States v. Al-Azzawy, 768

F.2d at 1145; Pet. App. 15a.

2. This case presents the problem starkly. The court of

appeals and the district court agreed that no conditions of

release would reasonably assure respondent’s appearance

at trial or the safety of the community. They also concluded,

however, that the magistrate had failed to comply with the

the grounds therefor become apparent or be thereafter foreclosed from

making such a motion.”). For that reason, there is seldom a need for

the prosecution to seek a continuance of the detention hearing in local

District of Columbia cases; the District of Columbia Court of Appeals

theretore has not had occasion to address the question of what conse-

quence should flow from the granting of an improper continuance under

the local District of Columbia statute.

14

first appearance provision and that respondent was therefore

entitled to pretrial release. Pet. App. la-3a, 16a-17a.

Although it is by no means clear that the delay in holding

the detention hearing violated the first appearance require-

ment, we have not challenged that aspect of the court of

appeals’ judgment in this case; instead, the sole question

before this Court is whether the court of appeals fashioned

the appropriate remedy for a “first appearance” violation. °

The court of appeals correctly recognized that the Bail

Reform Act does not provide a remedy for noncompliance

with the first appearance requirement. See Pet. App. 13a.

> As we note in the text, the question whether there was a violation

of the first appearance requirement is not directly presented here;

nonetheless, the Court may regard the point as pertinent to the ques-

tion of remedy if, for example, the Court considers the appropriate

remedy to depend on whether the statutory provision was unambiguous

and the violation therefore clearly established. In our view, there was

no violation here at all, and certainly not a clear-cut violation. We

believe that the “tirst appearance” referred to in the statute means the

first appearance after the filing of a motion for detention. See United

States v. Maull, 773 F.2d at 1483. Once the government (or the judicial

officer) moves for detention, the judicial officer must promptly hold

a detention hearing, unless the judicial officer grants a continuance or

the defendant waives his right to a hearing. In this case, the govern-

ment was prepared to move for detention at respondent’s February 10,

1989, initial appearance in Illinois, but respondent agreed to postpone

the question of bail until his hearing in New Mexico. J.A. 14-19. At

the February 16, 1989, hearing in New Mexico, the government ex-

pressed its intention to seek detention, but the magistrate granted a 3-day

continuance without objection from either party to permit the prepara-

tion of a pretrial services report. J.A. 20-23. The magistrate held the

detention hearing on February 21, 1989. J.A. 24-38. If, as we believe

should be the case, respondent’s “first appearance” for purposes of the

Bail Reform Act is regarded as the February 16 hearing 'n New Mexico

at which tue government stated its intention to seek detention, and it

the intervening weekend and holiday are not counted against the three-

day continuance period, see United States v. Melendez-Carrion, 790

F.2d at 991, then the detention hearing here was timely.

15

It drew the wrong conclusion from that observation,

however. The court reasoned that if the first appearance

requirement is “to have any import,” the consequences must

be “substantive.” Jd. at 14a. Sensing an obligation to pro-

vide some kind of remedy, the court concluded that “the

only meaningful remedy” was “release on conditions.” /d.

at 15a. This analysis was misguided. As we explain below,

in the absence of express instructions from Congress a

judicial remedy should be limited to curing any prejudice

to the party, and non-prejudicial errors should be dis-

regarded. This sensible principle has been endorsed by Con-

gress and embraced in various decisions of this Court. The

court of appeals erred in granting broader relief.

B. The Remedy For Failing To Hold A Detention Hearing at the

Defendant's “First Appearance” Should Be To Hold A Deten-

tion Hearing At the Earliest Opportunity

1. Congress and this Court have consistently recogniz-

ed that the ultimate goal of criminal procedure is a fair and

just adjudication and that remedies for procedural errors

must be responsive to that overarching objective. See Bank

of Nova Scotia v. United States, 108 S. Ct. 2369, 2373-2375

(1988). An unnecessarily broad remedy, as much as an in-

adequately narrow remedy, tends to undermine the criminal

justice process. See, e.g., United States v. Mechanik, 475

U.S. 66, 72 (1986). Thus, for more than a century, Con-

gress has declared by statute that errors that do not affect

substantial rights of the parties shall be disregarded. See

28 U.S.C. 2111; Fed. R. Crim. P. 52(a). Section 2111 pro-

vides that an appellate court “shall give judgment * * *

without regard to errors or defects which do not affect the

substantial rights of the parties.” Similarly, Rule 52(a) pro-

vides that “[a]ny error, defect, irregularity or variance which

does not affect substantial rights shall be disregarded.” Both

provisions reflect Congress’s judgment that prejudice is an

16

essential prerequesite to granting relief in a criminal case.°®

Similarly, this Court has stated that, even in the case of con-

stitutional 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).’

* Although Rule 52(a) is a court rule and has never formally been

enacted by Congress, it is clear that Congress intended that rule to

govern harmless error questions and that the rule states congressional

policy regarding the principles of harmless error. See United States v.

Lane, 474 U.S. 438, 454-455 (1986) (Brenren, J., concurring in part

and dissenting in part). Rule 52(a) was designed to take the place of

two statutory provisions, 18 U.S.C. 556 (1946), and 28 U.S.C. 391

(1946). When Congress tevised both the Criminal Code and the Judicial

Code several years after adoption of the Federal Rules cf Criminal Pro-

cedure, it relied on Rule 52(a) as the reason for repealing the two

predecessor statutes so as to avoid redundancy. See H.R. Rep. No. 304,

80th Cong., Ist Sess. 8 (1947) (“effect was given to the changes [made

oy the Federal Rules of Criminal Procedure] by revising modified sec-

ions and repealing superseded provisions”); H.R. Rep. No. 308, 80th

Cong., Ist Sess. A236 (1947) (former Section 391 is “superseded by Rule

61 of said Civil Rules, and Rule 52 of said Criminal Rules”). The follow-

ing year, Congress enacted 28 U.S.C. 2111 to ensure that the harmless

error provisions applicable to the district courts through the Civil and

Criminal Rules would be applicable to appellate courts as well. See H.R.

Rep. No. 352, 81st Cong., Ist Sess. 18 (1949).

” See also, e.g., Pope v. Illinois, 481 U.S. 497 (1987) (erroneous jury

instruction); Rose v. Clark, 478 U.S. 570, 577-579 (1986) (due process

violation); Delaware v. Van Arsdall, 475 U.S. €73 (1986) (Confronta-

tion Clause violation); United States v. Lane, 474 U.S. 438 (1986) (mis-

joinder under Fed. R. Crim. P. 8); Rushen v. Spain, 464 U.S. 114,

117-120 (1983) (violation of right to be present at trial); United States

v. Hasting, 461 U.S. 499 (1983) (improper comment on defendant's

silence at trial); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission

of identification obtained in violation of right to counsel); Milton \.

Wainwright, 407 U.S. 371, 372-373 (1972) (admission of confession

taken in violation of Sixth Amendment); Chambers v. Maroney, 399

U.S. 42, 52-54 (1970) (admigsion of es idence obtained in violation ot

17

Congress and this Court have identified the competing

interests in the Bail Reform Act. On the one hand, the

government has a compelling interest in ensuring that per-

sons are released on bail only under conditions that will

assure their appearance at trial and the safety of oiher per-

sons and the community. See Sa/erno, 481 U.S. at 747-749;

Bell v. Wolfish, 441 U.S. 520, 534 (1979); Stack v. Boyle,

342 U.S. 1, 4 (1951). On the other hand, the government

must pursue that interest through judicial procedures that

produce fair and reasonable pretrial release and detention

determinations. See Salerno, 481 U.S. at 750-752.°

the Fourth Amendmer’); Coleman v. Alabama, 399 U.S. 1, 10-11 (1970)

(denial of right to counsel at preliminary hearing); Harrington v.

California, 395 U.S. 250, 254 (1969) (improper admissicn of statement

of nontestifying co-defendant); Chapman v. California, 386 U.S. 18

(1967) (comments on defendant’s silence).

* As the Senate Committee Report accompanying the Bail Reform

Act explained:

Where there is a strong probability that a person will commit ad-

ditional crimes if released, the need to proiect the community

becomes sufficiently compelling that detention is, on balance, ap-

propriate. This rationale —that a defendant’s interest in remain-

ing free prior to conviction is, In some circumstances, Outweighed

by the need to protect societal interests — has been used to support

court decisions which, despite the absence of any statutory provi-

sion for pretrial detention, have recognized the implicit authority

of the courts to deny release to defendants who have threaten{ed]

jurors Or Witnesses, Or who pose significant risks of flight. In these

cases, the societal interest implicated was the need to protect the

integrity of the judicial process. The need to protect the community

trom demonstrably dangerous defendants is a similarly compelling

basis tor ordering detention prior to trial.

> * * * *

However, the Committee recognizes a pretrial detention statute

may nonetheless be constitutionally defective if ut fails to provide

adequate procedural safeguards or if it does not limit pretrial deten-

tion to cases in which it is necessary to serve the societal interests

18

The remedy for a failure to comply with the Bail Reform

Act’s procedures should take into account these competing

interests. In this case, the government has an obvious,

powerful interest in securing the appearance of drug trat-

fickers at trial and preventing them from resuming their

illicit activities.’ At the same time, any arrested person is

plainly entitled to a prompt judicial assessment and deter-

mination of his entithkement to pretrial release. The remedy

for failure to comply with the Bail Reform Act’s time re-

quirements for a detention hearing should be responsive to

both concerns.

2. The court of appeals’ sweeping remedy of automatic

release on conditions fails to strike a proper balance. As

this case graphically illustrates, a rule of automatic re-

it is designed to protect. The pretrial detention provisions of this

section have been carefully drafted with these concerns in mind.

S. Rep. No. 225, supra. at 7, 8 (lootnotes omitted).

* The Senate Report explains:

I, is well known that drug trafficking is carried on to an unusual

degree by persons engaged in continuing patterns of criminal ac-

tivity. 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 s‘gnificant risk of pretrial recidivism. Fur-

thermore, the Committee received testimony that flight to avoid

prosecution ts particularly high among persons charged with ma-

jor 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 coun-

tries 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 ineftec-

tive in assuring the appearance of major drug traffickers.

S. Rep. No. 225, supra, at 20 (.ootnote omitted).

19

lease thwarts Congress’s objective of providing rational and

fair bail procedures. Prior to respondent’s release, the

government urged — and the district court determined — that

no release conditions would reasonably assure respondent’s

appearance at trial or the safety of the community. The

court of appeals nevertheless ordered conditional release.

For his part, respondent immediately took the very step that

the government and the court had predicted —hc« fled the

jurisdiction to avoid prosecution. See p. 8, supra.

That result is fundamentally incompatible with “socie-

ty’s interest in the administration of criminal justice.”

Morrison, 449 U.S. at 364. Occasional procedural errors

in the handling of detention hearings are inevitable, par-

ticularly since the Bail Reform Act requires the parties and

the court to act with great dispatch in the often chaotic

period following a defendant’s arrest. If a procedural foul-

up —even a minor one such as exceeding by one day the per-

missible period for holding a detention hearing — requires

automatic release, no matter how strong the case for deten-

tion, many defendants charged with serious crimes can be

expected to flee before trial—as respondent did here — or

commit serious crimes while on release.

Indeed, we can say without exaggeration that the nor-

mal and expected consequence of the court of appeals’ rule

is increased fugitivity and criminality. After all, the only

persons tor whom the rule of automatic release will make

a difference in their detention status are those who would

otherwise be detained pending trial, /.e., those for whom

conditions of release will not “reasonably assure” their ap-

pearance at trial or the safety of the community. 18 U.S.C.

3142(e) (Supp. V 1987). A rule requiring release of such per-

sons makes it highly likely that they will flee or harm other

members of the community.

The court of appeals’ rule of automatic release is especially

perverse because it fails to provide any substantial counter-

20

vailing benefits. At the time a violation of the first ap-

pearance requirement is discovered, the defendant will have

been detained without a hearing for a period of time. If the

defendant would have been detained following a prompt

hearing, then he has lost nothing by the delay. Indeed, a

delay will often work to the defendant’s advantage by pro-

viding him with additional time to prepare for the deten-

tion hearing. Cf. Barker v. Wingo, 407 U.S. 514, 521 (1972).

In fact, it is commonly the case that where detention hear-

ings have been found untimely, the defendant has requested

or agreed to the delay. See United States v. Hurtado, 779

F.2d 1467, 1469, 1474 n.7 (11th Cir. 1985); United States

v. Al-Azzawy, 768 F.2d 1141, 1144 (9th Cir. 1985). Com-

pare United States v. Clark, 865 F.2d 1433 (4th Cir. 1985)

(en banc) (defendant waived right to an immediate hear-

ing); United States v. Coonan, 826 F.2d 1180, 1184 (2d Cir.

1985) (accord).'°

On the other hand, if the defendant would have been

released following a prompt detention hearing, and the

defendant has sought a prompt hearing, he has lost

something because of the delay. But what he has lost —a

period of time in detention — obviously cannot be returned

to him. For that defendant, a prompt detention hearing after

discovery of the violation will presumably lead to his release,

so a rule of automatic release serves that defendant little

better than a requirement that he be afforded a prompt

detention hearing, with release to follow if he is found not

to be detainable.

'’ As these cases demonstrate, the court of appeals’ rule cannot be

justified on the ground that the remedy is necessary to deter govern.

mental misconduct. The violations of the first appearance provision

in each of those cases resulted, as in this case, from difficulties that

judicial officers encountered in interpreting the requirements of the first

appearance provision.

A rule of automatic release thus provides defendants with

an unjustified windfall; it does not remedy any prejudice

that any defendant has suffered from the delay, and it may

gravely prejudice the government and the public.'' What

is more, the court of appeals’ rule, which absolves a defen-

dant of any obligation to move to protect his own interests,

produces a manifestly unfair situation of permitting a defen-

dant to “sandbag” the government by remaining silent un-

til the time limits have run, and then claiming immunity

from detention. Cf. Wainwright v. Sykes, 433 U.S. 72, 88-90

(1977). In fact, a rule of automatic release creates the

greatest incentive for “sandbagging” in the cases in which

the need for detention is the most compelling. Where it is

clear that the likelihood is very high that the defendant will

flee or commit other crimes while on release, the defendant’s

only hope for release is to remain silent and hope that the

court stumbles into a violation of the first appearance

requirement.

3. Where a detention hearing has not been provided

within the prescribed time limits, the competing interests

at stake are properly accommodated by ensuring that the

defendant receives a detention hearing at the earliest prac-

ticable opportunity. This accommodation preserves the Bail

Reform Act’s fundamental objective of protecting the in-

tegrity of the judicial process and the safety of the public

through the detention of persons who pose unavoidable risks

of flight or danger to community.

This solution also serves the defendant’s legitimate interest

in a prompt detention hearing. Federal courts will, we

believe, conscientiously attempt to comply with the “first

'' Notably, the court of appeals’ rule appears to prevent the judicial

otficer trom detaining a person even if the failure to comply with the

lirst appearance requirement Occurs while the person ts released on

bond. See United States v. O'Shauehnessy, 764 F.2d 1035, appeal

dismissed on rehearing as moot, 772 F.2d 112 (Sth Cir. 1985).

22

appearance” requirement, and the prosecutor and the de-

fendant’s counsel will remind judicial officers of their obliga-

tion to do so. If a court fails to conduct a detention hear-

ing in a timely manner, or the prosecutor fails to notify the

court of the need to do so, a defendant normally can be

expected to bring that error immediately to the court's

attention. Once informed of the delay, the court can then

be expected to provide the defendant what he is die—a

prompt but deliberate determination of his entitlement to

release.

The defendant can, of course, minimize the possibility

that a judicial officer or the prosecutor may neglect to follow

the prescribed time limits by affirmatively asserting his right

to a timely detention hearing. There is nothing unreasonable

or unfair in requiring a defendant to shoulder responsibili-

ty for protecting his own interests in this respect. And there

is nO reason to believe that defense counsel will fail to pro-

tect their clients’ interests in securing a prompt detention

hearing. Indeed, a defendant’s failure promptly to assert

his rights provides strong indication that he has suffered

no prejudice from the delay, or even that he preferred hav-

ing the additional time to prepare for the detention hearing.

The accommodation that we suggest, and particularly the

requirement that the hearing be held as soon as practicable,

also takes into account the judicial system’s limited resources

and the fact that in some circumstances, delays will simply

be unavoidable. See United States v. Ewell, 383 U.S. 116,

120 (1966). The Bail Reform Act recognizes that the federal

judicial system cannot react instantaneously to every pro-

blem, and it therefore authorizes judicial officers to con-

tinue detention hearings for “good cause.” 18 U.S.C. 3142(1)

(Supp. V 1987). By the same token, a judicial officer's

obligation to correct a failure to hold a prompt detention

hearing must take into account other competing respon-

sibilities and demands. We submit that requiring a judicial]

officer to take curative action as soon as practicable gives

appropriate recognition to that concern.

4. Although the Bail Reform Act provides for a prompt

detention determination, it does not impose that require-

ment at all costs. As previously explained, a judicial officer

may continue a hearing for “good cause.” 18 U.S.C. 3142(f)

(Supp. V 1987). The Act, which does not require a judicial

officer to make his decision within a specified time, also

provides that a defendant may be detained pendin, com-

pletion of the hearing and that the judicial officer may

reopen the hearing at a later date. 18 U.S.C. 3142(f) (Supp.

V 1987).'? And even the court of appeals in this case ap-

parently recognized that a judicial officer may stay a release

order (as was done here, Pet. App. 8a) pending further

review. Cf. Hilton v. Braunskill, 481 U.S. 770 (1987). Thus,

the structure of the detention procedure under the Bail

Reform Act indicates that the requirement for a prompt

determination of the detention issue is not as rigid as the

court of appeals’ ruling would suggest, and that the defend-

ant’s interest in a prompt detention determination may at

times be subordinated to other competing concerns.

The court of appeals’ rule of automatic release is also dif-

ficult to reconcile with other provisions of the Bail Reform

Act applying to the conduct of detention hearings. The Act

'? Section 3142(f) also provides:

The person may be detained pending the completion of the hear-

ing. The hearing may be reopened before or after a determination

by the judicial officer, at any time before trial if the judicial of-

ficer tinds that information exists that was not known to the mc-

vant at the time of hearing and that has a material bearing on the

issue Whether there are conditions of release that will reasonably

assure the appearance of the person as required and the satety of

any other person and the community.

IS U.S.C. 314202) (Supp. V 1987).

24

confers a variety of other procedural protections on per-

sons subject to detention motions, including protections that

are at least as important as the “first appearance” require-

ment. Yet those protections are undoubtedly subject to

harmless error analysis. For example, Section 3142(f) states

that the arrested person shall have the right to be represented

by counsel and, if financially unable to obtain adequate

representation, to have counsel appointed. 18 U.S.C. 3142(f)

(Supp. V 1987). It also states that the person shall be en-

titled to present evidence through testimony or proffer, that

the rules of evidence shall not apply in the hearing, and that

the facts upon which a judicial officer relies in imposing

detention must be supported by clear and convincing

evidence. 18 U.S.C. 3142(f) (Supp. V 1987). No one has

suggested that a mistaken but non-prejudicial application

of any of these procedural provisions would warrant reversal

of a detention decision. There is nothing unique about the

“first appearance” requirement, and thus no reason to create

a special remedy for violations of that provision.

(. Respondent Suffered No Prejudice As A Result Of The Delay

In This Case

Respondent was apprehended on February 8, 1989, was

charged in a criminal complaint on Friday, February 10,

1989, and was taken before a United States magistrate in

Illinois on that date. The government was prepared to con-

duct a detention hearing at that time; however, the govern-

ment reached agreement with respondent, who was

represented by counsel, to postpone respondent’s detention

hearing until he was returned to New Mexico. The govern-

ment returned respondent to New Mexico the same even-

ing (February 10) and promptly contacted the magistrate’s

ottice on Monday morning, February 13, to arrange for a

detention hearing. The magistrate’s office scheduled the

25

hearing tor February 16, 1989. Respondent took no steps

between February 10 and February 16 to accelerate the

hearing.

At the February 16th hearing, respondent’s counsel (who

apparently was unaware that respondent had specifically

agreed to a detention hearing in New Mexico) objected to

the government’s failure to move for detention before the

magistrate in Illinois. But she did not even suggest, much

less argue, that the New Mexico magistrate’s decision to con-

tinue the hearing for “three working days” to permit the

preparation of a pretrial services report violated the first

appearance provision, and she did not object to the con-

tinuance. Respondent took no steps between February 16

and February 21 to accelerate the hearing. Indeed, respon-

dent did not interpose an objection to the timing of the hear-

ing until February 21, 1989, the date that the hearing took

place. See Opposition to Detention of the Defendant

Without Bond (Feb. 21, 1989).

Thus! when the district court reviewed the magistrate’s

decision, the detention hearing hac been held, and at that

point no curative steps were necessary. Furthermore, the

magistrates’ supposed errors (but see note 5, supra) in per-

mitting respondent to postpone a detention hearing at the

February 10th removal proceeding, in scheduling the deten-

tion hearing for February 16, and in continuing the February

iéth detention hearing did not prejudice respondent. The

lower courts did not find, nor is there any basis for assum-

ing, that the delays prejudiced respondent in his ability to

defend against the detention motion or to defend against

the underlying allegations in the case. To the contrary,

respondent presumably agreed to the February 10th

postponement because it was in his interest: the postpone-

ment, after all, allowed him to retain counsel from his home

town and to contest detention in a more convenient forum.

furthermore, there is no indication in the record that

respondent was prepared to proceed with a detention hear-

26

ing prior to February 16th. Indeed, it is likely that respon-

dent’s retained counsel, who “was hired by [respondent’s]

family about three hours [before the February 16th hear-

ing]” (J.A. 21), welcomed the continuance.

The only prejudice respondent could have suffered from

the delay in holding the detention hearing arose from the

prospect that he might be held in custody for a few days

longer than he would have been if the hearing had been held

earlier and the district court had decided that respondent

should be released. Since the district court determined that,

but for the delay, respondent should be detained, it turns

out that the delay did not prejudice respondent at all. The

district court presumably would have reached the same con-

clusion following an earlier detention hearing and would

have ordered respondent detained for the entire period

before trial.

Respondent’s own conduct suggests that he did not view

the delays as prejudicial. Although represented by counsel,

respondent did not insist on a prompt detention hearing.

Quite to the contrary, 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.

Respondent’s failure to insist on a prompt hearing butresses

the conclusion that he suffered no prejudice, and indeed

perhaps obtained some advantage, from the delay. See, e.g.,

United States v. Fortna, 769 F.2d 243, 248-249 (5th Cir.

1985).

Finally, in examining the issue of prejudice, it is worth

noting that the case against respondent on the merits was

virtually airtight. He was caught in possession of a huge

amount of cocaine and a large amount of cash. He admitted

that he was aware of the drugs in his truck and intended

to deliver them to Chicago. His guilt was therefore clear.

27

And because he was found in possession of more than five

kilograms of cocaine, he was subject to a mandatory

minimum sentence of not less than 10 years’ imprisonment.

21 U.S.C. 841(b)(1)(A). Besides bearing on the propriety

of detention in the first place, the strength of the case against

respondent helps establish that the delay in holding the

detention hearing did not work to his prejudice. Not only

was respondent not likely to be released pending trial, but

he was also singularly unlikely to be acquitted. Respondent

was therefore not a person for whom the procedural pro-

tections of the pretrial detention statute are the most im-

portant: one who stands a good chance of not being con-

victed and for whom detention, if it is ordered, may result

in pretrial incarceration in spite of his ultimate vindication

after trial.

* * * * *

As this case shows, the court of appeals’ overly broad

and ill-conceived remedy imposes great costs on the criminal

justice system with no corresponding benefits. A rule of

automatic release, regardless of the degree of prejudice and

the risks associated with release, converts the pretrial deten-

tion process into “ ‘a game in which a wrong move by the

judge means immunity for the prisoner.’ ” Jones v. Thomas,

109 S. Ct. 2522, 2528 (1989). This surely does not serve Con-

gress’s intent in crafting the Bail Reform Act’s pretrial deten-

tion provisions. In contrast, the alternative that we urge cii-

sures that the defendant is afforded a prompt detention

hearing as soon as practicable after a first appearance in-

fraction is discovered, and thus fully protects the individual’s

interests without infringing the competing interests of socie-

ty, the courts, and the criminal justice system.

28

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted. R

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JRO _

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor General

NOVEMBER 1989

" US GOVERNMENT PRINTING OFFICE 1989— 262 203 0060