Beruflich Dokumente
Kultur Dokumente
Per Curiam.
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magistrate-judge
separate
hearings,
evidence
that
dangerousness.
and
each
detention
district
found
was
See 18 U.S.C.
___
by
judge,
following
and
convincing
clear
required
on
the
ground
of
3142(e).
Having conducted an
where
undisputed based on
noted,
the
following
those portions of
facts
appear
have
been
presented.1
returned in
to
felon,
August
3,
1994, an
indictment
rob an
U.S.C.
On
armored car,
in violation of
was
with conspiracy
the Hobbs
Act, 18
of
18 U.S.C.
922(g).
Immediately
detained;
reasoning
was
detention
written
hearing
order
filed on
and
ordered
explicating
August
23.
that
the
By
he
be
magistrate's
way
of a
motion
this
ruling.2
September 29
affirming
The
district
and issued a
the detention
judge
held
Defendant
hearing
days later
has now
on
filed a
Both
below and
principal
on appeal,
reliance on
the
an August
government has
4, 1994
affidavit
placed
by FBI
Brosnan,
in turn,
relies principally
on
infiltrated
defendant's
operation.
Several
activities with
the undercover
detectives
in gold."
Some
months before
hours in
June
1994
silencer."
the robbery
was to
of
the
instructions
conducting
millions of
guards and
the Hobbs
Act charge.
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2.
In another such
said
to have
given a
detectives for
manager
in
dispose of
use in
loaded semi-automatic
a planned robbery
Cape Cod."
the gun "if
He
the
conduct not
contained in
description
and
Pennsylvania in
to
manager" but
addition,
Brosnan
other
criminal
of
indictment--including
the planned
defendant and
In
the instant
counterfeiting activities
that
armed club
detectives
to shoot the
charge.
detectives'
Pennsylvania warehouse.
of "an
the
felon-in-possession
recounts
pistol to
instructed the
they had
defendant is
robberies
of
the
detectives
May 1994 to
actually
travelled
to
to be
criminal
____________________
record
includes
three
long-ago
to commit
larceny.4
In addition,
of conspiracy
death
he was convicted
to violate the
resulting.
The
in the mid-1970's
civil rights of
another, with
conviction are
was
indicted in
of interstate
1972,
along with
transportation
in his
defendant on charges
using a dynamite
home.
others,
of automatic
armory.
on a
firearms
Shortly
jury subsequently
of intimidating a witness
In brief,
acquitted
by force and
on the
charge of
Second
Circuit
substantive
charges
and
"Despite the
the
culpable
participation in the
free
find
to
that
Joost
firearms
He was
finding
resulting.
acquittals
that
Joost
was
an
active
As the
on
the
had
no
jury was
member
of
the
Id. at
___
on account
of such
offense.
____________________
4. Defendant states, without rebuttal, that these all arose
out of a "single transaction" occurring in 1963, when he was
19 years of age.
-5-
separated from
their
four-year-old son.
Apart
of age.
resides in
from
He is said
Boston with
his elderly
mother,
defendant
ties in Rhode
Island.
He is
raises five
issues on
appeal,
in which
he
neither of
Under 18 U.S.C.
"immediately upon
the hearings
conducted
below was
seeks
magistrate
took
up
immediately
following
nonetheless
insists
continuance."
the
issue
As
of
solely
pretrial
that this
hearing was
held
the
for the
mentioned,
defendant's arraignment.
timely.
the
detention
Defendant
a nullity.
He
(who is said to be a
on his behalf
that day
Defendant's "memory" is
-6-
him
to
that
an
"implied
continuance"
had
been
18 U.S.C.
3142(f).5
Instead, he
is alleging that
insists
that
the
as to the
September
29
hearing
before
He
the
absence
resolution
defendant's
ordered
was
magistrate
of these
transcript
assertions.
"understanding"
in
fact
that
precludes
Yet it
a
definitive
is apparent
continuance
misunderstanding;
had
neither
that
been
the
in their written
to this
of
orders.
Indeed, defendant
himself alluded
in his motion to
the district
____________________
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.
______________
Vargas, 804 F.2d 157 (1st Cir. 1986) (per curiam), even if we
______
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
________
court."
Id. at 162; see also United States v. Montalvo___
________ _____________
_________
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").
-7-
judge
seeking release.
Moreover,
even
711,
other
imposed by
compelled.
See
___
were we
to assume
3142(f) were
would not
thereby be
495 U.S.
suggest,
the
Act can
be
read
that a
timing error
person
who should
otherwise
noting
that
Montalvo-Murillo
________________
specifying
the
the
appropriate
to require,
must result
be
or
even
in release
of a
detained.").6
remedy
Court
for
Defendant,
refrained
"conduct
that
from
is
aggravated or
intentional," id.
___
government's
conduct
contrary, we
find nothing in
that the
here
was
at 721,
of
suggests that
this
ilk.7
government contributed
to the
delay in
To
the
the
to suggest
resolving
district
as required
by 18 U.S.C.
3145(b).
The
docket sheet reveals that his motion for release was filed on
____________________
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
similar
alleged
-8-
claim, mentioned
interference
infra,
_____
with his
August
22, 1994--some
42 days
defendant
has
initially
local court
September
procedural
elsewhere acknowledged
rules; he here
9.
before it
are
defendant's pro
not evident
se status).
Yet
motion was
the
that this
snag
was denied.
"refiled" on
from
the
instant record
that, once
decision on
from the
October 3.
And again,
timeliness requirement
it would provide
no grounds for
were
even if
thought to
defendant's release
of the opportunity to
their
testimony by way
affidavit.
F.2d
203,
See, e.g.,
___ ____
204
(1st
practice of using
established").
to
of hearsay contained
United States v.
_____________
Cir.
1985)
("the
witnesses.
in the Brosnan
Acevedo-Ramos, 755
_____________
lawfulness
of the
hearings is well
subpoena these
witnesses as
he
requested violated
his
-9-
rights
under
form of evidentiary
whether to
presentation at a bail
proceed by
1985).
whether to
It
live testimony or
Hurtado, 779
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is likewise
permit a defendant
United States
_____________
v. Gaviria,
_______
(11th
of
expected
See,
___
e.g.,
____
Cir.
government case
conditional right
witnesses to
669-70 (11th
request to call
proffer
court's discretion
do so exists.
See,
___
to call adverse
absolute right to
(upholding denial of
hearing, such as
by proffer.
within the
the stand; no
1987)
We disagree.
defendant must
benefit
of
the
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
Winsor to
officers.");
(3d
and police
discretion in this
regard, inasmuch as
the reasons
-10-
advanced
by
insubstantial.
defendant
for
calling
Defendant proffered
the
detectives
to the court
prove
below (he
would
that they
had
sought
his permission
to
"beat up
an
(2) that they had attempted to obtain a gun from him in order
to "shoot a person" but
all
From
these alleged
here.
We
the
Defendant
enumerated in
argument in this
there
3142(c).9
As it
mentioned--his
offer
to abide
by
of conditions not
a
combination of
____________________
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
involving the factors set forth in
3142(g).
-11-
as
fact,
explicitly
finding that it
the
home confinement.
consider
and
reject
community."
The
court did,
this
proposal,
Defendant's argument
thus
reduces to
of
an
At least on
v. Tortora,
_______
880 (1st
Cir.
that
"electronic monitoring,
cases (especially
flight),
cannot
in
be
922 F.2d
while valuable
allowing early
expected to
in pretrial
detection of
prevent
possible
defendant from
release
Id.
___
at
unavailing.
organized
For example,
crime
member
he points out
owing
allegiance
bail in
to
part to
criminal
instead is alleged
recruit associates
And
To the
contrary, as
to
we note that
took place in
the past."
is not an
on defendant's
defendant's residence.
has been no
that he
that there
a condition of
noted above,
his
involvement in
the conspiracy
to murder
a federal
witness
-12-
has
v. Perez-Franco,
____________
curiam).
Under these
870 (1st
circumstances,
United
______
Cir. 1988)
we
decline to
Defendant also
argues that
his prior
convictions
U.S.C.
He
any such
consider a
elapsed since
presumption.
Instead, it
took note
to the directive in
defendant's "criminal
history."
of these
3142(g)(3) to
This provision
contains
no
defendant's
prison
time
restrictions.
prior
for much
convictions,
of
the
Given
and given
intervening
the
nature
that
he
period,
of
was in
the
court's
Finally, defendant
extent he
this
reason,
complains
continued
is insisting upon
his
that his
argument
is
his immediate
To
release for
groundless.
While
an
____________________
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.
-13-
incarcerated
defendant proceeding
sufficient accommodations to
Tate v.
____
Wood,
____
963 F.2d
pro se
prepare for
20, 26
(2d Cir.
must be
afforded
trial, see,
___
e.g.,
____
1992); Milton
______
v.
Morris, 767 F.2d 1443, 1445-46 (9th Cir. 1985); cf. 18 U.S.C.
______
___
3142(i)
(permitting "temporary
supervision where
defense"),
the outright
Powell,
______
government
obviously unwarranted
v.
release" under
895
release of
such
an individual
F.2d
19,
22-24
(1st
is
Cf. Barham
___ ______
Cir.)
(finding
while in
prison
is
confinement in
his
argument
constitutionally sufficient),
961 (1990).
seeking
order to
to
otherwise premature.
Alternatively, to the
modify
the
conditions
facilitate his
is unrelated
to
We note
cert.
_____
the
extent
of
his
trial preparations,
issue
of bail
and
is
defendant
punitive measures
in prison,
use of the
mails.
subject of
These contentions
a recent district
have apparently
court hearing.
Any
-14-
of dangerousness.
We shall therefore
thereof.
refrain from
We simply note
evidence of
noteworthy
criminal
and his
the
In
so concluding, we
wide-ranging
scope
of
deem particularly
defendant's
nature of
while free
recent
such activity,
on bail,
in the
-15-