U.S. v. Femia
| Decision Date | 12 January 1993 |
| Docket Number | No. 92-2324,92-2324 |
| Citation | 983 F.2d 1046 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. UNITED STATES, Appellee, v. Noel FEMIA, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
James E. Carroll, John J. O'Connor and Peabody & Arnold, on brief for appellant.
A. John Pappalardo, United States Attorney, and Heidi E. Brieger, Assistant United States Attorney, on brief for appellee.
Before Selya, Cyr and Boudin, Circuit Judges.
Noel Femia appeals an order by the district court denying him bail. We affirm.
In 1986 Noel Femia was indicted on multiple counts of conspiring to possess and possessing cocaine with intent to distribute, distributing cocaine, and racketeering. An arrest warrant was issued the same day as the indictment. Femia fled, however, and was not arrested until this year, on July 16, 1992, in Florida. The next day Femia made an initial appearance before a magistrate in Florida, where he was represented by court-appointed counsel and waived his removal hearing. Because the significance of the events transpiring during Femia's appearance are at issue, we give a detailed summary here.
During the proceedings in Florida, Femia's court-appointed attorney told the magistrate that he understood that the government was "going to move for detention," that he had discussed that issue with Femia, and that "with [t]he Court's agreement, we would like the detention hearing to be heard in Massachusetts, as well." The magistrate responded, Femia waived a formal reading of the indictment. The United States Attorney then summarized the charges against Femia and noted that the maximum penalties Femia faced ranged from 15 to 20 years in prison. At that point, the magistrate advised Femia of his rights. After Femia indicated that he understood the charges against him and the rights that he had, the magistrate continued:
All right. In regards to the-we need to have you sign the waiver for removal. In addition to that, I'm going to have the Government proffer the reasons of why they're requesting detention.
I will order the detention-if the proffer is sufficient, I will order the Defendant to be detained until trial, subject to his filing-subject to his, again, having a detention hearing when he arrives in the District of Massachusetts.
The government then proffered the evidence that Femia had been a fugitive since his indictment in 1986, having first fled to Canada and then subsequently to Florida and elsewhere in the United States. He had also used several aliases, as shown in his criminal record. Finally, the present charges against him involved "substantial quantities of cocaine, as well as racketeering charges, ... some of the most serious charges in the [f]ederal [s]tatutes," and he had had "prior involvement with controlled substances."
According to the transcript, the magistrate then turned to Femia's counsel and stated that "I assume you have no comment[,]" to which the attorney replied "That's correct, Your Honor." The magistrate then made the following concluding comments:
All right. The Court based upon the proffer of the Government and the presumptions which arise under 3142, the Court finds that the Defendant is a risk of flight and a danger to the community and orders that he be bound over-that he be detained until trial and bound over for further proceedings in the United States District Court in and for the District of Massachusetts.
I order for detention, however, it is without prejudice to the Defendant's requesting an additional detention/bond hearing in Massachusetts because of-where he can more properly defend the charges and the-and also more properly reflect that he might be entitled to a bond.
The magistrate then asked counsel for Femia and the government whether there were any other issues to be addressed, to which both counsel responded that there was "nothing further."
Subsequently, the magistrate issued an order, stating that he had held a hearing pursuant to 18 U.S.C. § 3142(f) to determine whether Femia should be detained before trial and that he had found that "no condition or combination of conditions will reasonably assure the appearance of this defendant at all future court proceedings" so that he was ordering him detained until his trial had concluded. The magistrate then explained why he had ordered detention, referring to the charges in the indictment against Femia, which were serious, and the government's proffer that Femia had been a fugitive and had used aliases. He also alluded to the presumption arising under 18 U.S.C. § 3142(e) by virtue of the maximum sentences Femia was facing for his drug offenses. That presumption had not been rebutted since defense counsel had presented no evidence. In accordance with Section 3142(i), the magistrate directed that Femia be committed to the custody of the Attorney General for confinement, be permitted to consult with counsel, and be delivered to appear at all court proceedings. He also directed that the order was "entered without prejudice so that the defendant may file a written motion for bond in the District of Massachusetts." Neither the government nor Femia's counsel appears to have objected to the proceedings before the magistrate, nor to his order.
Thereafter, a magistrate-judge for the United States District Court for the District of Massachusetts appointed Femia's present counsel. On August 3, 1992, Femia was arraigned, and Femia entered a not guilty plea. Neither the government nor Femia's new counsel appears to have mentioned the issue of detention at the arraignment. In August, the district court set a September trial date, which the government subsequently moved to continue "to several months in the future." The district court granted the motion, and soon thereafter Femia's counsel brought a motion entitled "Defendant's Motion for Review of Magistrate's Decision to Deny Bail." In his motion, Femia alleged that continuing the trial for an "indefinite period" without bail violated his rights. (A trial date of February 22, 1993, now appears to have been set.) As grounds for his motion, Femia did not allege that a Section 3142(f) hearing had not been held, but argued that the magistrate had "made no factual findings to support his order that defendant is a danger to the community and a risk of flight" and that "[f]rom reading the Magistrate's order it appears that the government proffered all of its evidence." (Emphasis in original.) Femia also stated that his mother was willing to post her real estate as collateral to secure a bond for his release and that he agreed to be bound by whatever condition of release the court deemed appropriate, asserting that conditions existed that would assure his presence and the safety of the community. In concluding, Femia asked the court to conduct a hearing "on this matter."
Femia's motion did not describe the Florida proceedings to the court, nor did Femia submit a transcript of those proceedings to the court to review. (Indeed, it appears that Femia's counsel did not have the transcript at that time, having told the district court that it "appear[ed] from the magistrate's order" that the government had proffered its evidence, a fact clearly evidenced in the transcript.) Nor did the government appear to be aware of what had transpired during the Florida proceedings. In its memorandum objecting to Femia's motion to review the magistrate's order, it stated its belief, on the basis of a telephone conversation with the district court in Florida, that Femia had waived his right to the detention hearing altogether. The government urged the district court to "adopt" the magistrate's decision since Femia had presented no evidence rebutting the Section 3142(e) presumption and argued that an additional hearing was unnecessary. Without referring to Femia's statement that his mother would post her real estate as collateral for a bond to secure his release, the government stated simply that "Femia's bald assertion that he would remain in the community pending trial fails to satisfy the 'some evidence' requirement under 18 U.S.C. § 3142(e)."
The district court did not grant Femia's request for a hearing, but in a marginal order stated that "[g]iven the Magistrate-Judge's findings as to the seriousness of the offense charged, the weight of the government's evidence and defendant's fugitive status for a period of years, the detention order is hereby adopted by this court."
On appeal, Femia alleges that his detention was unlawful because Femia had never received the detention hearing required under 18 U.S. C. § 3142(f), either in Florida or in Massachusetts. Although Femia did not present that argument to the district court, the government has not argued that Femia has thereby waived the argument. Femia also claims that the district court's order did not give the court's reasons for the order, but was a "reflexive endorsement" of the magistrate's decision and not the de novo review required by our decisions. In the alternative, Femia argues that, on the merits, he should not have been detained. In an appendix, Femia has submitted to this court the transcript of the Florida proceedings upon which we have based our summary of those proceedings.
Contrary to Femia's allegation, the transcript makes clear that the magistrate held a detention hearing in Florida. 1 He had the government proffer its reasons for detention. He provided Femia's counsel an opportunity to respond, and Femia's counsel advised that there was "nothing further." From this we infer that Femia's counsel made it clear to the magistrate judge that he did not wish to make a...
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