U.S. v. Chaklader

• Citation: 987 F.2d 75
• Decision Date: 01 March 1993
• Docket Number: No. 92-1818,92-1818
• Parties: UNITED STATES of America, Appellee, v. Subir CHAKLADER, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 75

987 F.2d 75

UNITED STATES of America, Appellee, v. Subir CHAKLADER, Defendant, Appellant.

No. 92-1818.

United States Court of Appeals, First Circuit.

Heard March 1, 1993.

Decided March 10, 1993.

Daniel K. Sherwood, Burlington, MA, by Appointment of the Court, for defendant, appellant.

A. John Pappalardo, U.S. Atty., with whom Tobin N. Harvey, Asst. U.S. Atty., Boston, MA, was on brief for the U.S.

Before BOUDIN, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

PER CURIAM.

Appellant Subir Chaklader was ordered by the district court to serve a previously suspended five-year sentence for violating the conditions of his parole by committing an assault and battery with a deadly weapon in California. On appeal, Chaklader argues that the twenty-one-month delay between the time that California prison officials first indicated that he would be made available to federal authorities on a detainer and the commencement of federal probation revocation proceedings, violated Rule 32.1 of the Federal Rules of Criminal Procedure and the due process clause of the United States Constitution.

BACKGROUND ¹

Chaklader was federally indicted in 1983 for one count of mail fraud and one count of using fraudulently-obtained credit cards. In 1987, he was sentenced in the United States District Court for the District of Massachusetts to a three-year committed sentence on Count 1 and a consecutive five-year suspended sentence with probation for five years on Count 2. Chaklader served the committed sentence and was released on probation in 1988.

On May 7, 1990, Chaklader was arrested in California and charged under state law On June 27, 1990, Chaklader pled guilty in the California Superior Court to the lesser charge of assault and battery with a deadly weapon and was sentenced to a term of four-years imprisonment that "may run concurrent" with any federal sentence. Over the next two years, while serving his state sentence in a state prison, Chaklader says that he sought unsuccessfully to have federal authorities take custody of him. On September 17, 1990, California prison authorities notified federal authorities that Chaklader was available on the detainer. When, as Chaklader says, the federal authorities refused to take custody of him, Chaklader sought to have the California state courts revoke his state plea agreement. After failing to get this relief in the state courts, Chaklader asserts that he filed unsuccessful petitions for habeas corpus in federal courts in both California and Massachusetts, seeking to have federal authorities take custody of him.

                with attempted murder.   On May 9 and May 14 of that year, the United States Marshal in California filed detainers against Chaklader for a probation violation warrant the district judge in Massachusetts had ordered several days before the offense. 2  These detainers sought notification from the California prison authorities if Chaklader was transferred, available for federal custody, or released from state custody
                

On May 18, 1992, the District Court for the District of Massachusetts issued a second petition for revocation of probation for Chaklader's commission of the May 1990 offense. See supra note 2. Chaklader was brought from the California prison to Boston on a writ of habeas corpus ad prosequendum to answer the second probation revocation petition. A probation violation hearing was held on June 1, 1992, approximately twenty-one months after California authorities had first advised that they were willing to make Chaklader available to federal authorities for this purpose.

During the probation violation hearing, Chaklader's attorney asked the court to consider the time Chaklader had served on the California sentence in determining what sentence to impose for Chaklader's probation violation. In his allocution, Chaklader himself asked the court to consider the California sentence. He further expressed his frustration over his alleged unsuccessful attempts to have federal authorities take custody of him so that his sentences would run concurrently, complaining that he had "been trying for two years to come here." The district court thereafter revoked Chaklader's probation and ordered that he serve the full five-year sentence that had originally been suspended. The sentence was to be served on and after the California state sentence.

This appeal followed.

DISCUSSION

On appeal, Chaklader contends that the twenty-one-month delay between the time California authorities first indicated their readiness to make him available to federal authorities (September 17, 1990) and the time of his probation revocation hearing (June 1, 1992) violated Fed.R.Crim.P. 32.1 and his rights to a speedy probation hearing under the due process clause. A serious impediment to these arguments is that Chaklader did not articulate them below. Absent plain error, an issue not presented to the district court cannot be raised for the first time on appeal. United States v. Argentine, 814 F.2d 783, 791 (1st Cir.1987); United States v. Chambliss, 766 F.2d 1520, 1521 (11th Cir.1985).

Chaklader is unable to establish any error on the part of the district court, let alone plain error. Rule 32.1 requires the affording of a prompt probable cause hearing "[w]henever a person is held in custody on the ground that the person has violated a condition of probation...." Fed.R.Crim.P. 32.1(a)(1); s...