USCA1 Opinion
March 19, 1992 [NOT FOR PUBLICATION]
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No. 92-1112
UNITED STATES,
Appellee,
v.
JOHN R. PASCIUTI,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Norman H. Stahl, U.S. District Judge]
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Before
Breyer, Chief Judge
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Torruella and Selya, Circuit Judges.
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Kenneth D. Murphy and Casassa & Ryan on brief for appellant.
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Jeffrey R. Howard, United States Attorney, and Peter E.
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Papps, Assistant United States Attorney, on brief or appellee.
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Per Curiam. Appellant appeals from a detention order. He
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challenges the district court's delay in reviewing the
magistrates's detention order, the use of hearsay evidence
coupled with the court's refusal to subpoena a witness, and the
court's determination that no set of conditions would reasonably
assure the safety of the community.
I
A September 27, 1991 indictment charged defendant
with conspiracy to distribute methampetamines, 21 U.S.C. 846,
and conspiracy to provide a felon with ready access to firearms,
18 U.S.C. 371, 922(g)(1). On October 15, 1991, bail was set
at $10,000. The release order directed defendant not to commit
any offense while on release and to refrain from possessing a
firearm or controlled substance.
Two weeks later, the district court was informed
that, since his release, defendant had been arrested for
disorderly conduct, possession of a dangerous weapon, and
possession of a hypodermic needle and syringe. A magistrate
revoked bail on November 7, 1991. Defendant sought district
court review of that order on November 19, 1991 and requested a
hearing. On January 7, 1992, defendant filed a notice for
immediate release contending that as 50 days had passed since he
requested review of the magistrate's order without the court
having acted, defendant had been deprived of his right under 18
U.S.C. 3145(b) to prompt review of a detention order and
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consequently was entitled to release. The district court denied
immediate release and scheduled a hearing.
A hearing took place on January 14, 1992. The
government introduced police reports of defendant's arrests since
release. According to a report filed by Officer Roper of the
Lowell Police Department, at approximately 9:00 p.m. on October
19 (several days after defendant had been released on bail),
defendant's vehicle had been blocking the entrance to a street.
Officer Roper stated in the report that he identified himself as
a police officer and asked defendant to move his vehicle.
Defendant responded with obscene and abusive language. When he
persisted in an abusive and aggressive manner, he was arrested.
Defendant's second arrest was described in a detailed
report of the arresting officer, state trooper Driscoll.
According to the report, Trooper Driscoll observed a pick up
truck with defective rear tail light travelling on Route 128.
Trooper Driscoll activated his blue lights, then his siren. The
passenger (defendant) turned and looked at the police car, but
the truck continued three quarters of a mile before stopping.
Upon approaching the vehicle, Driscoll noticed that the passenger
was sweating heavily and moving his legs against the seat.
Questioned about the movement, defendant said he had spilled
tonic and was wiping it up. Trooper Driscoll shone his flash
light, saw no wetness, told defendant to exit and wait next to
the guard rail, felt the floor and ascertained it was dry,
reached under the passenger seat, and retrieved a velvet bag
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containing a fully loaded .22 caliber revolver. A second
officer, Officer Devlin, arrived on the scene, removed the
operator from the truck, brought him to the rear, handcuffed him,
and then placed him in the cruiser. While the operator was being
handcuffed, Driscoll found a hypodermic syringe/needle at
defendant's feet. Both defendant and the driver were
subsequently charged with possession of a dangerous weapon
(handgun) without a license, Mass. G. L. ch. 269, 10, and
unlawful possession of a hypodermic needle and syringe, Mass. G.
L. ch. 94C, 27. The weapon offense is a felony under state
law. Mass. G. L. ch. 274, 1 (crime punishable by imprisonment
in the state prison is a felony).
In addition to the police reports, the government
presented the testimony of Agent Granatino of the Bureau of
Alcohol, Tobacco, and Firearms. He had no personal knowledge of
the events surrounding the October arrests, but, based on his
review of the police reports and conversation with other
officers, reiterated much of what was in the reports. He also
described two other arrests of defendant. Again, his information
was not based on personal knowledge, but rather on reports and
conversation with other officers. In August 1989, he said,
defendant had been stopped in New York driving a pick up truck
with a cracked windshield. Defendant consented to a search of
the truck. The search uncovered over an ounce of methamphetamine
and five fully loaded handguns. Two of the guns had been
reported stolen in New Hampshire, one was not traced, and two
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others were owned by George Caruso, a member of Hell's Angels,
Lowell Chapter, a club of which defendant was an associate. In
January 1990, defendant had been stopped in New Hampshire. His
driving license had been suspended at the time. As defendant
exited the vehicle, a hunting knife fell to the ground. The
sheath of the knife was taped to the steering wheel. Defendant
was fined $100 for driving without a license. The charge
concerning the knife was filed without a finding.
Defendant did not testify, but did submit an
affidavit. Therein he admitted having sworn at the person who
had asked him to move his vehicle on October 19, 1991, but denied
knowing that the requester was a police officer. With respect to
the October 29, 1991 incident, he started in part as follows:
When we were stopped we were immediately
ordered out of the truck immediately. I
was told to sit on a guardrail. While I
was on the guardrail a gun was found in a
Crown Royal bag under the seat. I have
no knowledge of how the gun was put into
the truck, and I have not ever possessed
the gun or the needle. Trooper Driscoll,
upon finding the gun, stated: "What the
hell is this - you could've blown me
away!" I denied any knowledge of the
gun, and I showed the Trooper the Coke
can which I had put on the floor when he
said that I was moving underneath the
seat. The Trooper pointed the gun at me.
The Trooper then began waving the gun
towards traffic and had to be physically
restrained by another Trooper.
Defendant asked to subpoena Trooper Driscoll, but the
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district court denied the request.1
The district court upheld the magistrate's order
revoking release. Defendant has now appealed.
II
Defendant first argues that the 59 day delay between
defendant's November 19, 1991 motion to review the revocation
order and the district court's January 17, 1992 order upholding
revocation violates 3145(b)'s command that defendant's motion
"shall be determined promptly." 18 U.S.C. 3145(b). The delay,
defendant contends, entitles him to release. We disagree.
United States v. Montalvo-Murillo, 110 S. Ct. 2072
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(1990), is instructive. There, contrary to 18 U.S.C. 3142(f)'s
direction (1) that a 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,"
and (2) that, except for good cause, continuances not exceed five
(if requested by defendant) or three (if requested by the
government) days, the first appearance requirement and time
limits had not been honored. While acknowledging that the time
limits were important to protect the liberty interest at stake,
the Court nevertheless concluded that release was not mandated
when a time limit was violated:
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1. Initially, in his motion to the district court seeking
review of the magistrate's revocation order, defendant had
asked to subpoena Trooper Driscoll or, alternatively, to be
permitted to supplement the record with affidavits,
documentory evidence, and oral argument. At the hearing,
defendant asked that Driscoll be subpoenaed.
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Neither the timing requirements nor any
other part of the act can be read to
require, or even suggest, that a timing
error must result in release of a person
who should otherwise be detained.
Montalvo-Murillo, 110 S. Ct. at 2077.
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To be sure, the present case deals with the prompt
review provision, 18 U.S.C. 3145, rather than the prompt
initial hearing provisions. A prime objective of both, however,
is expeditious resolution of bail matters so that a defendant not
be improperly detained. Just as a timeliness violation at the
initial stage does not mandate release, even less should a delay
in the review process -- after a defendant has received some
procedural protection in the form of a hearing and a decision
from one judicial officer -- necessarily require release.
Consequently, we reject defendant's contention that release is
the automatically mandated remedy for any violation of
3145(b)'s prompt review directive.
Nor do we think that the particular circumstances of
this case required release as a remedy. The delay in ruling on
defendant's motion was inadvertent, the district court explained.
Defendant's motion, one of many in the onslaught of motions filed
by the 13 indicted defendants, did not come to the judges's
attention until defendant filed his motion for immediate release.
At that point, the court scheduled a hearing (within a week) and
expeditiously ruled, upholding the magistrate's detention order.
A mere phone call, the judge suggested, inquiring why the motion
for review had not been acted upon, likely would have brought the
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motion to the fore and substantially lessened the delay. This is
not a case of repeated protracted delay once the oversight was
brought to the court's attention, and we conclude that a release
order is not warranted as a remedy.
III
Defendant contends the evidence was insufficient to
warrant detention. In so arguing, he faults the court's refusal
to subpoena Trooper Driscoll. We will deal with these arguments
together, but first it is useful to review the relevant statutory
provisions.
A
Section 3148 of title 18 governs revocation of
release orders. It provides in material part as follows:
The judicial officer shall enter an order of
revocation and detention if, after a hearing, the
judicial officer-
(1) finds that there is-
(A) probable cause to believe that the person
has committed a Federal, State, or local crime
while on release; or
(B) clear and convincing evidence that the
person has violated any other condition of his
release; and
(2) finds that-
(A) based on the factors set forth in section
3142(g) of this title, there is no
condition or combination of conditions of release
that will assure that the person will not flee or
pose a danger to the safety of any other person or
the community; or
(B) the person is unlikely to abide by any
condition or combination of conditions of release.
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If there is probable cause to believe that, while
on release, the person committed a Federal, State,
or local felony, a rebuttable presumption arises
that no condition or combination of conditions will
assure that the person will not pose a danger to
the safety of any other person or the communÿÿÿÿÿÿÿty.
If the judicial officer finds that there are
conditions of release that will assure that the
person will not flee or pose a danger to the safety
of any other person or the community, and that the
person will abide by such conditions, the judicial
officer shall treat the person in accordance with
the provisions of Section 3142 of the title and may
amend the conditions of release accordingly.
The district court concluded from the evidence
concerning defendant's fidgeting with his feet when stopped and
the absence of any wetness where defendant claimed to have
spilled a soda that there was probable cause to believe defendant
knowingly had the unlicensed firearm found under his seat under
his control. As possession of an unlicensed firearm is a state
felony, 3148's rebuttable presumption became operative. The
court concluded that defendant had not overcome the force of the
presumption, explaining as follows:
[Defendant's] knowingly having an unlicensed,
loaded, firearm under his control in a vehicle
thirteen days after having been granted pretrial
release conditioned upon his not possessing any
firearms, and his record of allegedly possessing
unlicensed, loaded firearms indicates that no
condition or combination of conditions will assure
that he will not pose a danger to the safety of any
other person or the community.
B
Defendant's attacks are threefold. First, he claims
that the government's heevidence was too unreliable to
establish probable cause or to show that no condition will assure
the safety of the community. Second, he argues that even if the
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government's hearsay evidence was sufficient to establish
probable cause and trigger the statutory presumption, defendant
nevertheless should have been permitted to subpoena Trooper
Driscoll in order to challenge the government's showing. Third,
he contends that he did adequately rebut the presumption of
dangerousness and that detention is not warranted because
conditions do exist which will reasonably assure the safety of
the community. We deal with each in turn.
1. Government's use of hearsay.
Defendant did not object to the admission of the
police reports, and he acknowledges that the government may
utilize reliable hearsay at detention hearings. United States v.
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Acevedo-Ramos, 755 F.2d 203, 204, 206 (1st Cir. 1985) ("[T]he
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lawfulness of . . . . using hearsay evidence at bail hearings is
well established. Nothing in the new Act forbids the use of
hearsay, where reliable."); 18 U.S.C. 3142(f) (rules concerning
admissibility of evidence in criminal trials do not apply to
detention hearings). But, defendant says, he has challenged the
accuracy and reliability of Trooper Driscoll's reports. In these
circumstances, defendant argues, the government was required to
produce Trooper Driscoll's live testimony. In support, defendant
relies on the following passage from Acevedo-Ramos:
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[T]he magistrate or judge possesses
adequate power to reconcile the competing
demands of speed and of reliability, by
selectively insisting upon the production
of underlying evidence or evidentiary
sources where their accuracy is in
________________________________
question. Through sensible exercise of
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this power of selection, the judicial
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officer can make meaningful defendant's
right to cross-examine without
unnecessarily transforming the bail
hearing into a full-fledged trial or
defendant's discovery expedition.
(Emphasis added.)
Acevedo-Ramos, 755 F.2d at 207-08.
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Defendant claims that Trooper Driscoll's testimony is
needed because inconsistences between a two page report Driscoll
had first filed and a 13 page one furnished to defendant on the
day of the district court hearing undermined the reliability of
the reports. The supposed inconsistency to which defendant
points does not exist. In the first report, Driscoll stated that
while talking with the driver, Driscoll noticed defendant "moving
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underneath the seat." A sentence in the later report states that
when Driscoll went to the passenger (defendant's) side, he
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"observed the passenger to be moving his legs against the seat."
Several sentences earlier, however, Driscoll had indicated that
while on the driver's side he first noticed defendant's movement.
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The reports are basically consistent.2 Defendant's quibbles with
language did not undermined the reports' reliability requiring
that Driscoll be produced as a witness.
We conclude that the government's hearsay evidence
was sufficiently reliable and supported the finding that there
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2. We do not deny that there are some ambiguities in the
reports. For example, the first, terse report could be read
as saying that Driscoll observed defendant reaching under the
seat, while the second report describes kicking movements,
the upshot being that any "reaching" apparently was with the
feet, rather than the arms.
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was probable cause to believe defendant had committed a felony
while on pre-trial release.
2. District court's denial of defendant's request to
subpoena Driscoll.
Section 3142(f) of title 18 states that at a
detention hearing the defendant
shall be afforded an opportunity to
testify, to present witnesses, to cross-
examine witnesses who appear at the
hearing, and to present information by
proffer or otherwise.
Invoking this section as well as a claimed constitutional right
to confront witnesses at a detention hearing, defendant contends
he should have been permitted to subpoena Trooper Driscoll.
Given the opportunity, defendant says he would have asked
Driscoll the following: (1) why a fingerprint analysis defendant
had requested had not been performed on the weapon; (2) the
reason for the initial stop of the truck; (3) whether Driscoll
had pointed his gun and had had to be restrained as claimed in
defendant's affidavit; and (4) the general circumstance
surrounding the charges such as the location of the weapon and
needle.
Courts have concluded that district courts have much
discretion in determining whether a bail hearing shall be
conducted by proffer or live testimony and have rejected the
contention that either the constitution or 3142(f) necessarily
requires that live witnesses be produced at detention hearings.
See United States v. Cardenas, 784 F.2d 937, 938 (9th Cir. 1986)
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(rejecting contention that due process requires a defendant at a
detention hearing to be afforded the right to confront and cross-
examine witnesses; government may proceed by proffer); United
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States v. Hurtado, 779 F.2d 1467, 1479-80 (11th Cir. 1985)
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(judicial officer has discretion to prevent detention hearings
from becoming full-blown trials, but should exercise discretion
with recognition that pretrial detention may restrict liberty for
a significant time); United States v. Delker, 757 F.2d 1390,
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1395-98 (3d Cir. 1985) (rejecting contention that 3142(f) gives
to defendants the choice whether to proceed by proffer or
witnesses and concluding instead both that the section confers
discretion on the district court to choose the mode of proceeding
and that due process does not preclude using hearsay or mandate
subpoenaing witness whose out-of-court statements are used to
link defendant to criminal offenses).
We need not now probe the precise limits of a
district court's discretion, for we conclude that the four
reasons defendant stated for subpoenaing Driscoll are so
insubstantial that, even giving a fairly circumscribed view to
the district court's discretion, we would find no abuse of
discretion.
The first question defendant would have posed to
Driscoll -- why the gun had not been tested for fingerprints--
was answered. The district attorney had decided, as a tactical
matter, not to perform a fingerprint analysis. Defendant
exploited the lack of fingerprints at the hearing. He does not
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now argue that he is entitled as a matter of law to have the
government test the weapon for fingerprints or show any need for
Driscoll's testimony in this regard.
Defendant's second reason, his desire to question
Driscoll concerning the true reason for the initial stop of the
pick up truck, similarly did not require that Driscoll be
subpoenaed. Defendant contends that the stated reason in the
police reports for the stop -- defective left rear tail light --
was not the real motivation for the stop since the operator was
not charged with any offense relating to the tail light.
Defendant thinks the real reason the truck was stopped was
because it had a Hells Angels sticker on it.
As long as there is a valid reason for a stop, the
officer's subjective motivation is irrelevant. See, e.g., United
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States v. Pringle, 751 F.2d 419, 425 (1st Cir. 1984) (motivation
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for boarding is irrelevant; the test is whether an objective
basis existed). Defendant has not claimed that he expected to
prove through Driscoll that there was no defective tail light and
no basis for a stop. Rather, defendant's inquiry appears to have
been directed at uncovering Driscoll's thought processes, an
irrelevant matter. Regardless, however, the court was not
required to turn the bail revocation hearing into a motion to
suppress hearing. See United States v. Winsor, 785 F.2d 755, 756
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(9th Cir. 1986) (upholding court's refusal to allow defendant to
cross-exam government investigators and police officers for the
purposes of showing lack of probable cause to arrest or
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likelihood of success on a suppression motion where defendant's
proffer did not indicate that the government's proffered
information was incorrect).
The third reason -- Driscoll's alleged misbehavior in
pointing his gun -- is irrelevant to the bail determination.
Whether or not Driscoll overreacted after he found a gun under
the seat occupied by defendant does not bear on the central
issues in dispute at the revocation hearing -- the existence of
probable cause to believe defendant had committed a felony and
defendant's dangerousness.
The last reason stated for calling Driscoll -- to
question him concerning the general circumstances surrounding the
charges such as the location of the gun and needle -- fails in
the circumstance of this case. With respect to the gun,
defendant does not deny that Driscoll recovered it from under the
passenger seat. Rather, he contends he did not know it was
there. But, defendant has failed to describe with any
particularity what useful information he could hope to elicit
from Trooper Driscoll bearing on defendant's knowledge. United
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States v. Accetturo, 783 F.2d 382, 388-89 (3d Cir. 1986) (even
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though defendants had tendered evidence showing witness's
unreliability (drug addiction, criminal and psychiatric history),
court did not abuse its discretion in refusing to compel
appearance of that witness, who was the government's primary
source of information, where there was no reason to believe the
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witness would either provide evidence favorable to defendant or
retract harmful evidence).
The needle may present a different case. According
to the judge's description of the evidence taken at the hearing
before the magistrate (we have not been furnished with a copy of
that tape), there was evidence that the needle was found on the
ground between where defendant and the driver were standing.
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Driscoll's report, in contrast, much more closely linked the
needle to defendant, for it said the needle was at defendant's
feet. Had the needle charge been the basis for the probable
cause and dangerousness findings, then, perhaps, we would
conclude that defendant should have been afforded more leeway to
inquire into the location of the needle vis a vis where the
operator and defendant had been standing. But the court's
finding of dangerousness, as explained in the passage we have
quoted at page 10 of this opinion, was based on defendant's
involvement with firearms. As we read the district court's
opinion, regardless whether or not probable cause existed to
believe that it was defendant who possessed the syringe and
needle, the district court's revocation order would remain the
same. In these circumstances, then, any error in precluding
defendant from questioning Driscoll concerning the location of
the needle was harmless.
3. Sufficiency of evidence supporting a detention
order.
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Defendant next argues that the evidence is
insufficient to establish that no conditions of release will
adequately safeguard the community.
This court's review of the district court's order "is
not de novo, but, rather, independent, 'giving deference to the
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determination of the district court.'" United States v.
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Patriarca, 948 F.2d 789, 791 (1st Cir. 1991).
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We have concluded that there was probable cause that
defendant committed a felony while on release, namely, possession
of a firearm without a license. Consequently, 3148's
rebuttable presumption -- "that no condition or combination of
conditions will assure that [defendant] will not pose a danger to
the safety of ... the community" -- is operative. Like the
rebuttable presumption addressed in United States v. Jessup, 757
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F.2d 378 (1st Cir. 1985), this presumption, we believe, does not
disappear, but rather retains evidentiary force even after a
defendant has met his burden of producing some rebuttal evidence.
Here, defendant did present some evidence -- his
affidavit claiming, among other things, that he had not possessed
the gun -- and arguments why he should not be regarded as
dangerous. He maintained that there was no evidence of violent
character, violent crimes, or actual use of a firearm. At most,
the record showed that on two occasions -- once pre-indictment
(New York) and once subsequently (October) -- defendant had been
in a vehicle which contained weapons. This simply was an
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insufficient basis upon which to conclude that defendant is
dangerous, defendant argues.
We disagree and endorse the district court's
reasoning. The evidence that, so soon after having been released
on condition that he not possess a firearm, defendant knowingly
possessed one manifests disdain for the court's order and
society's rules. In stressing the lack of evidence concerning
actual violence or actual use of a weapon, defendant seems to be
suggesting that by danger to the community, 3148 means physical
danger to one or more persons. The statute is not so limited.
Rather, as the legislative history indicates, continued criminal
behavior is also a danger 3148 is aimed against:
The commission of a serious crime by a
released person is plainly indicative of
his inability to conform to one of the
most basic conditions of his release,
i.e. that he abide by the law, and of the
danger he poses to other persons and the
community, factors which section 3148
recognizes are appropriate bases for the
revocation of release. Nonetheless,
there may be cases in which a defendant
may be able to demonstrate that, although
there is probable cause to believe that
he has committed a serious crime while on
release, the nature or circumstances of
the crime are such that revocation of
release is not appropriate. Thus, while
the Committee is of the view that
commission of a felony during the period
of release generally should result in the
revocation of the person's release, it
concluded that the defendant should not
be foreclosed from the opportunity to
present to the court evidence indicating
that this sanction is not merited.
However, the establishment of probable
cause to believe that the defendant has
committed a serious crime while on
release constitutes compelling evidence
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that the defendant poses a danger to the
community, and, once such probable cause
is established, it is appropriate that
the burden rest on the defendant to come
forward with evidence indicating that
this conclusion is not warranted in his
case. Therefore, the Committee has
provided in section 3148(b) that if there
is probable cause to believe that the
person has committed a Federal, State, or
local felony while on release, a
rebuttable presumption arises that no
condition or combination of conditions
will assure that the person will not pose
a danger to safety of any other person or
the community.
Senate Report No. 98-225, 98th Cong., 2d Sess. 35-36, reprinted
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in 1984 U.S. Code Cong. & Ad. News 3182, 3218-19.
__
Remaining is the question whether "there are
conditions of release that will assure that [defendant] will not
. . . pose a danger to the safety of . . . the community, and
that [defendant] will abide by such conditions . . . ."
Defendant states that he is willing to submit to random searches
and monitoring. Defendant has not spelled out what he means by
electronic monitoring. If he means that he should be allowed out
into community, but restricted to a fairly small geographic area
such as, for example, the city of his residence, defendant's
argument is not be very compelling, for such a restriction would
not prevent defendant from continued criminal behavior. If, on
the other hand, defendant means he is willing to submit to home
confinement, defendant's argument may conceivably have more
force. To be sure there are circumstances where even home
confinement is inadequate to safeguard the community against
continued criminal behavior because defendant may be able to
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continue his criminal activities from home. United States v.
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Tortora, 922 F.2d 880, 894 (1st Cir. 1990) (not apparent how
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conditions, including home confinement, would prevent defendant
from planning with others to silence witnesses). Whether this is
the case was not developed below. Furthermore, the record
contains no information concerning the availability of effective
home confinement monitoring systems. See United States v. Perez-
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Franco, 839 F.2d 867, 870 (1st Cir. 1988) (no evidence that a
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home confinement monitoring bracelet is readily available or
workable). Neither the defendant, the government, nor the
district court addressed the feasibility, burden on the
government, or advantages and disadvantages of home confinement,
and, on this record, where we are not even sure whether defendant
is suggesting home confinement as an alternative, we will not
attempt to do so. Rather, we will affirm the detention order,
but without prejudice to defendant's elaborating, in the district
court, upon his proposal for electronic monitoring.
Affirmed.
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