U.S. v. Montalvo-Murillo, MONTALVO-MURILL

Decision Date31 May 1989
Docket NumberMONTALVO-MURILL,No. 89-2056,D,89-2056
Citation876 F.2d 826
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Guadalupeefendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

William L. Lutz, U.S. Atty., and Robert J. Gorence, Asst. U.S. Atty., Albuquerque, New Mexico, for plaintiff-appellant.

Bernard J. Panetta, II and Mary Stillinger of Caballero, Panetta & Ortega, El Paso, Tex., for defendant-appellee.

Before MOORE, ANDERSON, and TACHA, Circuit Judges.

PER CURIAM.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

This appeal is taken from an order of the United States District Court for the District of New Mexico, 713 F.Supp. 1407 (1989), setting terms and conditions of defendant's release pending trial, notwithstanding the court's finding that no conditions or combination of conditions would reasonably assure his presence in court or the safety of the community, 18 U.S.C. Sec. 3142(e). 1 The court directed release after determining that release on conditions was the appropriate remedy for violations of the failure to hold a detention hearing within the time requirements of 18 U.S.C. Sec. 3142(f). 2 We affirm.

We recite the facts from the district court's memorandum opinion and order filed March 1, 1989.

On February 8, 1989 defendant, a Mexican citizen and legal resident alien of the United States, was arrested by United States Customs agents at a checkpoint in Orogrande, New Mexico in connection with the discovery of a substantial quantity of cocaine in an auxiliary gasoline tank mounted in the rear of defendant's pickup truck. According to the customs agents, defendant advised that his destination was Chicago, Illinois where he intended to make delivery of the cocaine, and at the agents' request defendant agreed to participate in a "controlled delivery" to the anticipated purchasers. The customs agents then met with personnel of the Drug Enforcement Administration who made arrangements for the Chicago venture. Consequently, defendant flew to Chicago, Illinois in the company of a DEA agent and another DEA agent drove defendant's vehicle to Chicago where the controlled delivery was attempted. However, nobody showed up to receive the shipment in Chicago.

On February 10, 1989 a complaint was filed in New Mexico and the United States Magistrate for the District of New Mexico issued a warrant for defendant's arrest; and defendant, who at the time was in Chicago, was taken before a United States Magistrate in Illinois for a hearing in accordance with Rule 40 of the Federal Rules of Criminal Procedure. This was defendant's initial appearance before a judicial officer.

During the February 10 hearing Ms. Garza, the Assistant United States Attorney who was handling the case, advised the Magistrate that the Government "was going to move for detention" but an agreement had been reached with Ms. Green, defendant's court appointed counsel. Ms. Garza represented it had been agreed that defendant would consent to removal of the proceedings to New Mexico, where he was charged, if he would be returned to New Mexico immediately. Ms. Garza stated that they had also agreed that defendant would waive a detention hearing in Illinois, but he would not waive his rights to a preliminary hearing or a detention hearing in New Mexico.

The United States Magistrate in Illinois did not ask defendant any questions to determine his ability to understand his rights and the nature of the proceeding. She asked no questions about his understanding of his rights under 18 U.S.C. Sec. 3142(f). She did not make findings that defendant had knowingly and voluntarily waived his right to an immediate detention hearing or that defendant had consented to a continuance. The Magistrate advised the defendant, through an interpreter, that before being sent back to New Mexico he had the right to a determination that there was probable cause to believe he committed an offense and that he was the person named in the complaint and further advised him that he was entitled to a hearing on detention or bail. The Magistrate then asked "Is that agreeable to you?" Defendant's counsel responded, obliquely, that "we are not waiving the preliminary hearing." The Magistrate then rephrased the question to defendant by asking "Is that acceptable?" Defendant's response, through the interpreter, was "Yes ... if they want me to, I'm with them." Next, the Magistrate asked defendant if he had talked to his counsel, Ms. Green, "about it" and defendant's interpreted reply was "Yes, well she is Ms. Green, right?" The Magistrate said "yes" and "alright, then we will enter an order of removal specifically reserving the issues on detention and probable cause for determination by the District Court in New Mexico ..." Defendant made no statements during the hearing in Illinois other than the two responses, set forth in full above, and a reply of "yes" to a question about whether he understood he was present for a removal hearing. The United States Magistrate in Illinois ordered that the defendant be returned to New Mexico; he was returned late on the evening of Friday, February 10, 1989 and was jailed in Las Cruces, New Mexico.

On the morning of Monday, February 13, 1989, a representative of the Drug Enforcement Administration conferred with the secretary in the office of the United States Magistrate in Las Cruces, New Mexico about a date and time for a detention hearing and arraignment. The Office of the United States Magistrate for the District of New Mexico scheduled a hearing on Thursday, February 16, 1989. On Wednesday, February 15, 1989 the United States Magistrate appointed counsel to represent the defendant, but retained counsel appeared on defendant's behalf at the hearing the following day, February 16, 1989.

It appears that the Assistant United States Attorney and defendant were prepared to proceed with the detention hearing on February 16, 1989; neither the government nor the defendant moved for a continuance. However, at the beginning of the February 16 hearing the Magistrate stated that "in the interest of justice" the detention hearing should be rescheduled on February 21, 1989, apparently because a Pre-Trial Services Report had not yet been prepared. Again, at the February 16, 1989 hearing, which was defendant's first appearance before a judicial officer in New Mexico, no inquiry was made of defendant's understanding of his right to an immediate detention hearing under 18 U.S.C. Sec. 3142(f) and there was no finding that defendant had knowingly and voluntarily waived his right to an immediate hearing. In fact, the Magistrate did not advise defendant of any rights and asked him no questions. Moreover, the United States Magistrate made no finding, as required by 18 U.S.C. Sec. 3142(f), that there was "good cause" to continue the hearing to February 21, 1989.

In regard to postponing the hearing to February 21, 1989, the Magistrate stated that the hearing would be held that date if the Government moved to detain the defendant and indicated that if it did not, on February 21, 1989 the Magistrate would set conditions of release. The Government filed a Motion for Detention on February 17, 1989. This was the first detention motion that was actually made; the Government had intended to move for detention on February 10, 1989 before the Magistrate in Illinois, but had not done so by reason of the agreement reached with defendant's court appointed counsel in Illinois. Since the Government filed a written motion for detention on February 17, 1989, the United States Magistrate in Las Cruces, New Mexico proceeded with a detention hearing on February 21, 1989 at the conclusion of which the Magistrate said he would set conditions of release but would allow the Government an opportunity to appeal to United States District Court before entry of the order setting conditions of release. The United States Attorney therefore requested an immediate hearing before the District Court and that hearing was held on February 23, 1989.

The district court temporarily stayed its release order to enable the United States to file a notice of appeal; thereafter, we stayed defendant's release pending further order of the court.

The government argues that the February 21 hearing on the detention motion was timely, that defendant's waiver of an immediate detention hearing (in Illinois) was a request for an indefinite continuance of the hearing for good cause, and that even if a violation of Sec. 3142(f) occurred, the remedy is a prompt detention hearing, not release. Defendant contends that the time constraints of Sec. 3142(f) were violated and that the remedy chosen by the district court was correct.

First, we must determine the appropriate standard by which to review the district court's factual findings and legal conclusions. Next we must consider whether the time requirements of Sec. 3142(f) were violated under the facts of this case. Finally, if violations of Sec. 3142(f) occurred, we must review the correctness of the district court's choice of remedy.

Under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141, et seq., pretrial detention is presumptively appropriate for certain offenders upon a finding 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." Sec. 3142(e). Further, certain offenses carry a presumption that no such conditions or combination thereof will assure appearance and safety, including violations of the Controlled Substances Act, 21 U.S.C. Sec. 801, et seq., where there is probable cause to believe that the person committed an offense for which the maximum term of imprisonment is more than ten years. Id.

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