U.S. v. Vargas, 86-1645

• Decision Date: 06 October 1986
• Docket Number: No. 86-1645,86-1645
• Citation: 804 F.2d 157
• Parties: UNITED STATES, Appellee, v. Juan VARGAS, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 157

804 F.2d 157

UNITED STATES, Appellee, v. Juan VARGAS, Defendant, Appellant.

No. 86-1645.

United States Court of Appeals First Circuit.

Submitted Aug. 13, 1986.

Decided Oct. 6, 1986.

Jonathan Shapiro and Stern & Shapiro, Boston, Mass., on brief, for defendant, appellant.

Jonathan Chiel, Asst. U.S. Atty., and William F. Weld, U.S. Atty., Boston, Mass., on brief, for appellee.

Before COFFIN, BOWNES, and TORRUELLA, Circuit Judges.

PER CURIAM.

Juan Vargas appeals from an order of the district court detaining him pending trial pursuant to section 3142(e) of the Bail Reform Act, 18 U.S.C. Sec. 3141 et seq. We affirm.

Background

In May, 1986, Vargas and twelve other crewmen were arrested aboard a vessel. On May 20, 1986, a criminal complaint issued charging Vargas and the other defendants with, among other things, violating 21 U.S.C. Sec. 952(a), which prohibits importation into the United States of controlled substances.

Vargas and the other defendants appeared before a magistrate on May 21. At that time, the government moved to temporarily detain the defendants pursuant to 18 U.S.C. Sec. 3142(d). ¹ The magistrate had before her pretrial services reports on all of the defendants, which contained information regarding their family ties, residence, employment, financial resources, health, and prior record. In light of that information, the magistrate granted the motion, finding that Vargas and the other defendants were not United States citizens and that they posed a risk of flight. They were ordered temporarily detained until June 5, 1986. The magistrate also noted that if Immigration and Naturalization officials did not take the defendants into custody during the period prescribed by section Sec. 3142(d), then the court would schedule a supplemental detention hearing pursuant to 18 U.S.C. Sec. 3142(e).

Vargas was indicted on May 30, 1986. The indictment charged him with, among other things, conspiracy to import marijuana into the United States, and conspiracy to possess with intent to distribute marijuana aboard a United States vessel. Vargas and the other defendants were arraigned that day. All defendants were represented by counsel. At the arraignment, after the first defendant (not Vargas) entered a plea of not guilty, the magistrate asked the government if there was "an issue of bail." The government replied, "Your Honor, we're going to seek to detain each and every one of these defendants," to which the magistrate replied, "Okay. Continue detention." After the next defendant (not Vargas) pled, the magistrate again asked about bail. The following exchange occurred:

[GOVERNMENT]: "Again, Your Honor, we're going to seek to detain each and every one of these defendants, so we'd ask that it be continued"--

THE COURT: Okay.

[GOVERNMENT]:--for a detention hearing.

THE COURT: Okay.

The magistrate continued to inform each defendant, including Vargas, of the charges against him, and she accepted each defendant's plea. At the end of the hearing, the magistrate stated that she was detaining the defendants. She also stated that, since counsel probably had not had much time to confer with the defendants, "if at any time [each defendant] would wish individually to have a detention hearing ... you should so notify the Clerk. Is that understood?" No one objected to the magistrate's decision.

On June 5, Vargas moved for release from detention, arguing that the 10 day temporary detention period had expired. A hearing was held that day, at which the magistrate initially stated that it was her understanding that at the May 30 hearing, the government had moved for pretrial detention of all defendants based on risk of flight. She indicated that an attorney representing one of the defendants had waived argument on the detention issue, and that "no other counsel contested the detention." She stated that at that hearing she had ordered the defendants detained pursuant to section 3142(e). ² The magistrate stated to Vargas' counsel that if he wished to argue the issue of detention then or have the court reconsider the detention motion "based on a proffer of something then the Court will do it." The government stated that it believed that the purpose of the June 5 hearing was that Vargas' attorney intended "to move for some sort of hearing or some sort of reconsideration [of the pretrial detention order] under 3142(e), and we are prepared to meet that." Vargas' counsel did not argue the merits of the detention order or proffer any evidence related to the merits of that order. He disputed that he sought reconsideration, arguing that there was nothing to reconsider since, in his view, the government had not moved for pretrial detention under section 3142(e), and that any request by the government for pretrial detention was untimely. He also contended that Vargas had not had a timely pretrial detention hearing pursuant to 18 U.S.C. Sec. 3142(f). The magistrate disagreed. That same day, the magistrate issued a written detention order. In that order, the magistrate stated that at the May 30 hearing, the government had moved for pretrial detention of the defendants (including Vargas), ostensibly on the basis that defendants were illegal aliens with no ties to the community, and that the defendants presented a risk of flight "based on the dearth of information provided to pretrial services in its report." Noting that "[n]o counsel contested the government's motion nor moved for a continuance," the magistrate stated that she had allowed the detention motion pursuant to 18 U.S.C. Sec. 3142(e). She also stated that at the conclusion of the May 30 hearing, she had informed counsel that if they wished "a further hearing on the matter of detention, they could so inform the Court by motion." In the June 5 order, the magistrate made findings and concluded that Vargas and the other defendants should be detained pursuant to section 3142(e).

On June 9, 1986, Vargas filed in the district court a motion to revoke the magistrate's detention order; a hearing was held on July 3. At the hearing, the district court concluded that Vargas had been afforded a timely detention hearing under section 3142(f) and that there was an adequate basis for the magistrate's June 5 detention order. The district court also held that Vargas was entitled to a de novo detention hearing. That hearing was held on July 7. At the hearing, Vargas testified and presented other evidence in support of his contention that he should not be detained pending trial. The district court found that there was a risk of flight and that no condition or combination of conditions would reasonably assure Vargas' appearance. The court therefore ordered him detained pursuant to section 3142(e).

Temporary Detention Hearing

Vargas initially argues that the magistrate's order which temporarily detained him pursuant to 18 U.S.C. Sec. 3142(d) was improper because he allegedly was entitled to, but did not receive, a prior hearing or the assistance of counsel. However, Vargas has not disputed appellee's claim that Vargas did not raise this issue in the district court, and we have found nothing in the record before us indicating that Vargas raised this issue below. Thus, we conclude that he has waived the issue. See United States v. Johnston, 784 F.2d 416, 422 (1st Cir.1986); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979).

Timeliness of Pretrial Detention Hearing

Before detention may be ordered under section 3142(e), a detention hearing must be held in accordance with section 3142(f). Section 3142(f) provides 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." ³ However, when a defendant has been temporarily detained under section 3142(d), courts have not construed the "first appearance" requirement of section 3142(f) as requiring that a section 3142(f) hearing be held at the defendant's first appearance before a judicial officer when temporary detention was ordered. See, e.g., United States v. Becerra-Cobo, 790 F.2d 427, 430 (5th Cir.1986) (holding that section 3142(e) detention of a person who has not been admitted for permanent residence pending trial need not be demanded at the first temporary detention appearance so long as it is demanded at the first appearance of the defendant for any other purpose and the hearing is held within the ten day temporary detention period); United States v. Alatishe, 768 F.2d 364, 369 (D.C.Cir.1985) (holding that a section 3142(f) detention hearing that did not occur at the defendant's first appearance before a judicial officer, but that might have fallen within the ten day temporary detention period of section 3142(d) comported with the requirements of the Bail Reform Act).

In this case, Vargas argues that the magistrate's section 3142(e) detention order violated his rights because he allegedly was denied a hearing. Vargas also contends that the district court lacked authority to detain him because the de novo detention hearing it conducted allegedly was untimely. The government asserts that Vargas had a hearing at the May 30 arraignment, and that he had another opportunity to be heard at the June 5 hearing. The government also contends that the district court had authority to detain Vargas.

Contrary to Vargas' assertion, we believe the government moved for pretrial detention at the May 30 arraignment, which was Vargas' next appearance before a judicial officer after the temporary detention appearance, and which was within the ten day temporary detention period. As such, that request for pretrial detention was timely. See United States v. Becerra-Cobo, 790 F.2d at 430. Although the government did not specifically state that it moved for detention under section 3142(e), we believe that was the government's intention, based on our reading of the transcript of the May 30 hearing. Indeed, at...