USCA1 Opinion
[NOT FOR PUBLICATION]
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No. 94-2085
No. 94-2086
UNITED STATES,
Appellee,
v.
ROBERT M. JOOST,
Defendant, Appellant.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Stahl, Circuit Judges.
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Robert Joost on Memorandum pro se.
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Sheldon Whitehouse, United States Attorney, James H. Leavey and
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Margaret E. Curran, Assistant United States Attorneys, on Memorandum
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for appellee.
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November 30, 1994
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Per Curiam. Defendant Robert Joost, who has elected to
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proceed pro se, appeals from an order of pretrial detention.
The magistrate-judge and the district judge, following
separate hearings, each found by clear and convincing
evidence that detention was required on the ground of
dangerousness. See 18 U.S.C. 3142(e). Having conducted an
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independent review tempered by deference to the lower court's
determination, see, e.g., United States v. O'Brien, 895 F.2d
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810, 814 (1st Cir. 1990), we affirm.
I.
Except where noted, the following facts appear
undisputed based on those portions of the record that have
been presented.1 On August 3, 1994, an indictment was
returned in Rhode Island charging defendant with conspiracy
to rob an armored car, in violation of the Hobbs Act, 18
U.S.C. 1951, and with possession of firearms by a convicted
felon, in violation of 18 U.S.C. 922(g). Immediately
following defendant's arraignment on August 5, the magistrate
conducted a detention hearing and ordered that he be
detained; a written order explicating the magistrate's
reasoning was filed on August 23. By way of a motion
apparently submitted on August 22, defendant sought review of
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1. The record before us does not contain a copy of the
indictment or the transcripts from the two hearings below.
We are nonetheless obligated to decide the appeal "promptly"
on the basis of "such papers, affidavits, and portions of the
record as the parties shall present." Fed. R. App. P. 9(a).
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this ruling.2 The district judge held a hearing on
September 29 and issued a written decision four days later
affirming the detention order. Defendant has now filed a
pair of appeals challenging this determination.
Both below and on appeal, the government has placed
principal reliance on an August 4, 1994 affidavit by FBI
Special Agent Brosnan detailing the events giving rise to the
instant charges. Brosnan, in turn, relies principally on
statements made to him by two state police detectives who had
successfully infiltrated defendant's operation. Several
discrete incidents are described in which defendant allegedly
plotted criminal activities with the undercover detectives
and others. One of these involved a planned armed robbery of
an armored car expected to be carrying "possibly millions of
dollars in gold." Some months before the robbery was to
occur, it is averred that defendant and the detectives spent
four hours in June 1994 conducting surveillance of the
armored car company. The preparations included instructions
from defendant to the detectives to handcuff the guards and
tape their mouths shut; if any of the guards caused trouble,
they were told "to kill [him] with a firearm equipped with a
silencer." These allegations form the basis for the Hobbs
Act charge.
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2. As explained infra, the question as to when this motion
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was filed is not free of ambiguity.
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In another such incident that same month, defendant is
said to have given a loaded semi-automatic pistol to the
detectives for use in a planned robbery of "an armed club
manager in Cape Cod." He instructed the detectives to
dispose of the gun "if they had to shoot the manager" but
otherwise to return it. These allegations form the basis for
the felon-in-possession charge. In addition, Brosnan
recounts the detectives' description of other criminal
conduct not contained in the instant indictment--including
counterfeiting activities and the planned robberies of a
delivery truck, a restaurant, an American Legion post, and a
Pennsylvania warehouse. As to this last incident, he relates
that defendant and the detectives actually travelled to
Pennsylvania in May 1994 to commit the robbery, only to be
thwarted by local police pursuant to covert arrangements made
by the detectives.3
Defendant's criminal record includes three long-ago
convictions for breaking and entering with intent to commit
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3. The government also alleges that defendant told the
detectives he was contemplating killing his estranged wife.
This contention, said to have been made by proffer below, is
not contained in the Brosnan affidavit and was not mentioned
by the district court. Defendant's wife has since submitted
an affidavit dismissing the allegation as "ridiculous" and
offering to return to Rhode Island to take "custody" of her
husband. Under the circumstances, we choose not to rely on
this charge.
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larceny.4 In addition, he was convicted in the mid-1970's
of conspiracy to violate the civil rights of another, with
death resulting. The facts underlying this conviction are
detailed in United States v. Guillette, 547 F.2d 743, 746-47
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(2d Cir. 1976), cert. denied, 434 U.S. 839 (1977). In brief,
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defendant was indicted in 1972, along with others, on a
charge of interstate transportation of automatic firearms
that had been stolen from a National Guard armory. Shortly
before trial, the government's key witness was killed when a
bomb exploded in his home. A jury subsequently acquitted
defendant on charges of intimidating a witness by force and
using a dynamite bomb to commit a felony, but convicted him
on the charge of conspiracy with death resulting. As the
Second Circuit observed, "Despite the acquittals on the
substantive charges and the finding that Joost had no
culpable participation in the actual bombing, the jury was
free to find that Joost was an active member of the
conspiracy which resulted in [the witness'] death." Id. at
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755. Defendant was free on bail with respect to the pending
firearms indictment during the time he committed this crime.
He was imprisoned from 1973 until 1987 on account of such
offense.
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4. Defendant states, without rebuttal, that these all arose
out of a "single transaction" occurring in 1963, when he was
19 years of age.
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Defendant is approximately 50 years of age. He is said
to be separated from his wife, who resides in Boston with
their four-year-old son. Apart from his elderly mother,
defendant has no other family ties in Rhode Island. He is
currently unemployed and without financial resources.
II.
Defendant raises five issues on appeal, in which he
mostly complains of alleged irregularities in the lower court
proceedings. We shall address these seriatim.
1. Defendant first contends, in a two-pronged argument,
that neither of the hearings conducted below was timely.
Under 18 U.S.C. 3142(f), a detention hearing is to 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." As mentioned, the
magistrate took up the issue of pretrial detention
immediately following defendant's arraignment. Defendant
nonetheless insists that this hearing was a nullity. He
explains that attorney Arthur Chatfield (who is said to be a
friend of the defendant's) appeared on his behalf that day
solely for purposes of arraignment. Defendant's "memory" is
that he informed the magistrate that he needed time to decide
whether Chatfield (or another attorney) would represent him
at the detention hearing or whether he would appear pro se.
He "believes" that no argument was offered in opposition to
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the government's request for detention. It was therefore his
"understanding" that an "implied continuance" had been
granted and that he was being temporarily detained pending a
renewed hearing. As we understand his argument, defendant is
not claiming a violation of his right to counsel as provided
for in 18 U.S.C. 3142(f).5 Instead, he is alleging that
the hearing was postponed because of uncertainties as to the
status of his representation and was never rescheduled. He
thus insists that the September 29 hearing before the
district judge constituted his initial detention hearing--one
occurring well past the statutory time limits.
The absence of a transcript precludes definitive
resolution of these assertions. Yet it is apparent that
defendant's "understanding" that a continuance had been
ordered was in fact a misunderstanding; neither the
magistrate nor the district judge made any reference thereto
in their written orders. Indeed, defendant himself alluded
to this point only obliquely in his motion to the district
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5. To the extent defendant did intend to advance this
argument on appeal (as he did below), it would provide no
basis for release. As was the case in United States v.
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Vargas, 804 F.2d 157 (1st Cir. 1986) (per curiam), even if we
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were to assume that defendant "did not have an adequate
detention hearing before the magistrate, any defects were
cured by the subsequent de novo hearing held by the district
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court." Id. at 162; see also United States v. Montalvo-
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Murillo, 495 U.S. 711, 720 (1990) ("there is no reason to
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bestow upon the defendant a windfall and to visit upon the
Government and the citizens a severe penalty by mandating
release of possibly dangerous defendants every time some
deviation from the strictures of 3142(f) occurs").
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judge seeking release. Moreover, even were we to assume
arguendo that the time constraints imposed by 3142(f) were
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somehow violated, defendant's release would not thereby be
compelled. See United States v. Montalvo-Murillo, 495 U.S.
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711, 716-17 (1990) ("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.").6 Defendant,
noting that the Montalvo-Murillo Court refrained from
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specifying the appropriate remedy for "conduct that is
aggravated or intentional," id. at 721, suggests that the
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government's conduct here was of this ilk.7 To the
contrary, we find nothing in the present record to suggest
that the government contributed to the delay in resolving
defendant's bail status.
In the alternative, defendant argues that the district
judge failed to conduct a "prompt" review of the magistrate's
detention order, as required by 18 U.S.C. 3145(b). The
docket sheet reveals that his motion for release was filed on
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6. In reaching this conclusion, the Court noted that
detention hearings take place "during the disordered period
following arrest" and that "some errors in the application of
the time requirements" will inevitably occur as a result.
495 U.S. at 720. As one such example, it cited "ambiguity in
requests for continuances." Id.
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7. Defendant advances a similar claim, mentioned infra,
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regarding the government's alleged interference with his
trial preparations.
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August 22, 1994--some 42 days before it was denied. Yet
defendant has elsewhere acknowledged that this motion was
initially rejected for filing because of noncompliance with
local court rules; he here admits that it was "refiled" on
September 9. The precise circumstances giving rise to this
procedural snag are not evident from the instant record
(although it appears that they derived at least in part from
defendant's pro se status). What is evident is that, once
the matter was formally presented for decision, the district
judge acted with reasonable promptness--issuing a scheduling
order on September 23, holding a hearing on September 29, and
rendering a decision on October 3. And again, even if a
deviation from the timeliness requirement were thought to
exist, it would provide no grounds for defendant's release
under the teachings of Montalvo-Murillo.
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2. Defendant next argues that he was unfairly deprived
of the opportunity to call the two detectives as witnesses.
He does not object to the fact that the government presented
their testimony by way of hearsay contained in the Brosnan
affidavit. See, e.g., United States v. Acevedo-Ramos, 755
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F.2d 203, 204 (1st Cir. 1985) ("the lawfulness of the
practice of using hearsay evidence at bail hearings is well
established"). He insists, however, that the court's refusal
to subpoena these witnesses as he requested violated his
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rights under 3142(f) to "present witnesses" and "to cross-
examine witnesses who appear at the hearing." We disagree.
A district court has wide discretion in determining the
form of evidentiary presentation at a bail hearing, such as
whether to proceed by live testimony or by proffer. See,
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e.g., United States v. Hurtado, 779 F.2d 1467, 1480 (11th
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Cir. 1985). It is likewise within the court's discretion
whether to permit a defendant to call adverse witnesses to
the stand; no absolute right to do so exists. See, e.g.,
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United States v. Gaviria, 828 F.2d 667, 669-70 (11th Cir.
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1987) (upholding denial of request to call government case
agent; holding that defendant "has only a conditional right
to call adverse witnesses" and that whether defendant must
make "initial proffer of the expected benefit of the
witness's testimony" lies within court's discretion); United
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States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) ("Without
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a proffer from Winsor that the government's proffered
information was incorrect, the magistrate was not required to
allow Winsor to cross-examine the investigators and police
officers."); United States v. Delker, 757 F.2d 1390, 1397-98
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(3d Cir. 1985) (upholding lower court's refusal "to subpoena
the witnesses whose out-of-court statements linked appellant"
to the crimes charged).
We need not explore the precise contours of the district
court's discretion in this regard, inasmuch as the reasons
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advanced by defendant for calling the detectives prove
insubstantial. Defendant proffered to the court below (he
now tells us) that his interrogation of the detectives would
have refuted the allegation of dangerousness by establishing:
(1) that they had sought his permission to "beat up an
informer" but he had told them "to leave the man alone"; and
(2) that they had attempted to obtain a gun from him in order
to "shoot a person" but he had talked them out of it. From
all that appears from this proffer, however, these alleged
incidents have no bearing on the various charges contained in
the Brosnan affidavit (and outlined above) that undergird the
finding of dangerousness here. We therefore find that the
court acted within its discretion in declining to expand the
scope of the hearing.8
3. Defendant next alleges that the district court "did
not properly consider" imposing one or more of the conditions
of release enumerated in 3142(c).9 As it turns out, his
argument in this regard pertains to a set of conditions not
there mentioned--his offer to abide by a combination of
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8. Defendant apparently also sought to call his wife as a
witness to rebut the allegation that he had expressed an
intention to harm her. And included in his proffer below was
the allegation that the detectives had sought his permission
"to beat up his estranged wife, but he had forbidden it." As
we have placed no reliance on this factor, see note 3 supra,
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we need not address these matters.
9. The government mistakenly characterizes this argument as
involving the factors set forth in 3142(g).
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electronic monitoring and home confinement. The court did,
in fact, explicitly consider and reject this proposal,
finding that it would not "reasonably assure the safety of
the community." Defendant's argument thus reduces to an
assertion that the court erred in so concluding. At least on
the present record, we find this contention unpersuasive.
In United States v. Tortora, 922 F.2d 880 (1st Cir.
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1990), on which the district court relied, we observed that
"electronic monitoring, while valuable in pretrial release
cases (especially in allowing early detection of possible
flight), cannot be expected to prevent a defendant from
committing crimes ... within the monitoring radius." Id. at
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887. Defendant's attempts to distinguish this decision prove
unavailing. For example, he points out that he is not an
organized crime member owing allegiance to a criminal
organization (as was the case there), but instead is alleged
to be a "lone operator." Yet the Brosnan affidavit discloses
a proclivity on defendant's part to recruit associates to
assist in the perpetration of his crimes. And we note that
much of the criminal plotting there described took place in
defendant's residence. Defendant also maintains that there
has been no suggestion that he "has violated a condition of
bail in the past." To the contrary, as noted above, his
involvement in the conspiracy to murder a federal witness
occurred while he was free on bail. Defendant, in any event,
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has proffered no evidence to suggest that a home-confinement
monitoring system "is readily available or workable." United
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States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988)
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(per curiam). Under these circumstances, we decline to
disturb the district court's finding.10
4. Defendant also argues that his prior convictions
occurred too long ago to be of any evidentiary relevance. He
points out that under 18 U.S.C. 3142(e)(3), past crimes of
violence can give rise to a presumption of dangerousness only
if "a period of not more than five years has elapsed since
the date of conviction." Yet the district court did not rely
on any such presumption. Instead, it took note of these
earlier crimes pursuant to the directive in 3142(g)(3) to
consider a defendant's "criminal history." This provision
contains no time restrictions. Given the nature of
defendant's prior convictions, and given that he was in
prison for much of the intervening period, the court's
consideration of such evidence was obviously justified.
5. Finally, defendant complains that his continued
detention will interfere with his defense preparations. To
the extent he is insisting upon his immediate release for
this reason, his argument is groundless. While an
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10. Should he be able to establish a proper evidentiary
foundation, of course, defendant remains free to request an
appropriate modification of the detention order from the
district court.
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incarcerated defendant proceeding pro se must be afforded
sufficient accommodations to prepare for trial, see, e.g.,
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Tate v. Wood, 963 F.2d 20, 26 (2d Cir. 1992); Milton v.
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Morris, 767 F.2d 1443, 1445-46 (9th Cir. 1985); cf. 18 U.S.C.
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3142(i) (permitting "temporary release" under government
supervision where "necessary for preparation of the person's
defense"), the outright release of such an individual is
obviously unwarranted under such circumstances. Cf. Barham
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v. Powell, 895 F.2d 19, 22-24 (1st Cir.) (finding
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accommodations made to permit pro se defendant to prepare for
trial while in prison constitutionally sufficient), cert.
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denied, 495 U.S. 961 (1990). Alternatively, to the extent
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defendant is seeking to modify the conditions of his
confinement in order to facilitate his trial preparations,
his argument is unrelated to the issue of bail and is
otherwise premature. We note in this regard that defendant
has accused government officials of taking punitive measures
against him for the purpose of obstructing such preparations-
-including allegedly holding him "incommunicado" in prison,
"scaring away" his attorney, and prohibiting his use of the
telephone and the mails. These contentions have apparently
been the subject of a recent district court hearing. Any
consideration thereof by this court must await another day.
III.
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Perhaps unmindful of the independent review conducted by
this court, defendant has mounted no direct challenge to the
finding of dangerousness. We shall therefore refrain from
setting forth a detailed discussion thereof. We simply note
our agreement with the district court that the evidence of
record establishes, in clear and convincing fashion, that no
set of release conditions would reasonably assure the safety
of the community. In so concluding, we deem particularly
noteworthy the wide-ranging scope of defendant's recent
criminal involvement, the violent nature of such activity,
and his earlier participation, while free on bail, in the
successful plot to murder a key witness against him.
The order of pretrial detention is affirmed.
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