Chaklader v. United States ( 1993 )

March 10, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-1818
UNITED STATES OF AMERICA,
Appellee,
v.
SUBIR CHAKLADER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, Senior U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Daniel K. Sherwood, by Appointment of the Court, for appellant.
A. John Pappalardo, United States Attorney, with whom Tobin N.
Harvey, Assistant United States Attorney, was on brief for the United
States.
March 10, 1993
Per Curiam. Appellant Subir Chaklader was ordered
by the district court to serve a previously suspended five-
year sentence for violating the conditions of his parole by
committing an assault and battery with a deadly weapon in
California. On appeal, Chaklader argues that the twenty-one-
month delay between the time that California prison officials
first indicated that he would be made available to federal
authorities on a detainer and the commencement of federal
probation revocation proceedings, violated Rule 32.1 of the
Federal Rules of Criminal Procedure and the due process
clause of the United States Constitution.
BACKGROUND1
BACKGROUND
Chaklader was federally indicted in 1983 for one
count of mail fraud and one count of using fraudulently-
obtained credit cards. In 1987, he was sentenced in the
United States District Court for the District of
Massachusetts to a three-year committed sentence on Count 1
and a consecutive five-year suspended sentence with probation
1. Some of the facts mentioned below are found only in
appendices filed for the first time with this court by
Chaklader and the government after appeal. They are not part
of the district court record, Chaklader having failed to
raise his Rule 32.1 and due process arguments before the
district court. While facts not contained in the record
below are not properly before this court, we nonetheless set
forth the parties' version of them by way of background to
our conclusion that, even considering the Rule 32.1 and due
process arguments, they are wholly without merit.
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for five years on Count 2. Chaklader served the committed
sentence and was released on probation in 1988.
On May 7, 1990, Chaklader was arrested in
California and charged under state law with attempted murder.
On May 9 and May 14 of that year, the United States Marshal
in California filed detainers against Chaklader for a
probation violation warrant the district judge in
Massachusetts had ordered several days before the offense.2
These detainers sought notification from the California
prison authorities if Chaklader was transferred, available
for federal custody, or released from state custody.
On June 27, 1990, Chaklader pled guilty in the
California Superior Court to the lesser charge of assault and
battery with a deadly weapon and was sentenced to a term of
four-years imprisonment that "may run concurrent" with any
federal sentence. Over the next two years, while serving his
state sentence in a state prison, Chaklader says that he
sought unsuccessfully to have federal authorities take
2. This petition for revocation of probation, dated May 4,
1990, identified five separate probation violations: (1)
failure to notify his probation officer that he had been
questioned by law enforcement officers; (2) failure to notify
his probation officer that he had been discharged from his
employment; (3) leaving the Southern District of New York
without permission of the Probation Department; (4) failure
to notify his probation officer of a change in residence; and
(5) failure to report to his probation officer as directed.
An additional probation revocation petition alleging
Chaklader's conviction for the offense committed on May 7,
1990 was ordered filed on May 18, 1992. Chaklader's
probation was eventually revoked under the later petition.
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custody of him. On September 17, 1990, California prison
authorities notified federal authorities that Chaklader was
available on the detainer. When, as Chaklader says, the
federal authorities refused to take custody of him, Chaklader
sought to have the California state courts revoke his state
plea agreement. After failing to get this relief in the
state courts, Chaklader asserts that he filed unsuccessful
petitions for habeas corpus in federal courts in both
California and Massachusetts, seeking to have federal
authorities take custody of him.
On May 18, 1992, the District Court for the
District of Massachusetts issued a second petition for
revocation of probation for Chaklader's commission of the May
1990 offense. See supra note 2. Chaklader was brought from
the California prison to Boston on a writ of habeas corpus ad
prosequendum to answer the second probation revocation
petition. A probation violation hearing was held on June 1,
1992, approximately twenty-one months after California
authorities had first advised that they were willing to make
Chaklader available to federal authorities for this purpose.
During the probation violation hearing, Chaklader's
attorney asked the court to consider the time Chaklader had
served on the California sentence in determining what
sentence to impose for Chaklader's probation violation. In
his allocution, Chaklader himself asked the court to consider
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the California sentence. He further expressed his
frustration over his alleged unsuccessful attempts to have
federal authorities take custody of him so that his sentences
would run concurrently, complaining that he had "been trying
for two years to come here." The district court thereafter
revoked Chaklader's probation and ordered that he serve the
full five-year sentence that had originally been suspended.
The sentence was to be served on and after the California
state sentence.
This appeal followed.
DISCUSSION
On appeal, Chaklader contends that the twenty-one-
month delay between the time California authorities first
indicated their readiness to make him available to federal
authorities (September 17, 1990) and the time of his
probation revocation hearing (June 1, 1992) violated Fed. R.
Crim. P. 32.1 and his rights to a speedy probation hearing
under the due process clause. A serious impediment to these
arguments is that Chaklader did not articulate them below.
Absent plain error, an issue not presented to the district
court cannot be raised for the first time on appeal. United
States v. Argentine, 814 F.2d 783, 791 (1st Cir. 1987);
United States v. Chambliss, 766 F.2d 1520, 1521 (11th Cir.
1985).
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Chaklader is unable to establish any error on the
part of the district court, let alone plain error. Rule 32.1
requires the affording of a prompt probable cause hearing
"[w]henever a person is held in custody on the ground that
the person has violated a condition of probation . . . ."
Fed. R. Crim. P. 32.1(a)(1); see United States v. Sackinger,
537 F. Supp. 1245, 1249 (W.D.N.Y. 1982), aff'd, 704 F.2d 29,
30 (2d Cir. 1983). Thereafter, the revocation hearing shall
be held within a reasonable time. Fed. R. Crim. P.
32.1(a)(2). Contrary to Chaklader's contentions, he was not
in custody on the grounds of his federal probation violation
when in 1990 California authorities purportedly indicated his
availability to federal authorities on the detainer.
Chaklader was instead serving, and continued thereafter to
serve, a state sentence in a state facility. Not until May
1992 was Chaklader finally taken into federal custody to
answer for violations of the conditions of his probation.
His probation violation hearing took place less than one
month later. There was thus clearly no violation of Rule
32.1.
For similar reasons, Chaklader's due process
argument fails as there is "no constitutional duty to provide
petitioner an adversary parole hearing until he is taken into
custody as a parole violator . . . ." Moody v. Daggett, 429
U.S. 78, 89 (1976) (emphasis added); see also United States
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v. Wickham, 618 F.2d 1307, 1309 n.3 (9th Cir. 1979) (speedy
revocation hearing protection under the due process clause is
"not triggered when the warrant is placed as a detainer at an
institution where the probationer or parolee is already in
custody awaiting disposal of an intervening charge or serving
a sentence for a crime committed while on supervised
release.").
Chaklader has suffered no prejudice from the
twenty-one-month delay before his federal probation
revocation hearing. It is not alleged that the delay
impaired his ability to contest the revocation. See Wickham,
618 F.2d at 1310 (delay must affect probationer's ability to
contest facts of revocation); see also United States v.
Marion, 404 U.S. 307, 324 (for pre-indictment delay to be
cognizable under due process clause, defendant must show
actual prejudice to the defense of the criminal case).
Indeed, it would be difficult, if not impossible, for
Chaklader to establish such prejudice since he pled guilty to
the underlying California assault and battery charge.
Moreover, the passage of twenty-one months in no way
restricted the district court's ability "to grant,
retroactively, the equivalent of concurrent sentences."
Moody, 429 U.S. at 87. Aware of the California sentence and
the time served thereunder, the district court nonetheless
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chose to require that the reinstated federal sentence be
fully served on and after the California sentence.
Thus even accepting Chaklader's version of the
facts, and considering arguments not presented below, there
was no violation of his right to a prompt revocation hearing
either under Rule 32.1 or under the due process clause.
Affirmed.
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