DocketNumber： 92-2324
Filed Date： 1/15/1993
Status： Precedential
Modified Date： 9/21/2015
January 12, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2324
UNITED STATES,
Appellee,
v.
NOEL FEMIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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James E. Carroll, John J. O'Connor and Peabody & Arnold, on
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brief for appellant.
A. John Pappalardo, United States Attorney, and Heidi E.
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Brieger, Assistant United States Attorney, on brief for appellee.
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Per Curiam. Noel Femia appeals an order by the
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district court denying him bail. We affirm.
I. Facts
I. Facts
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In 1986 Noel Femia was indicted on multiple counts
of conspiring to possess and possessing cocaine with intent
to distribute, distributing cocaine, and racketeering. An
arrest warrant was issued the same day as the indictment.
Femia fled, however, and was not arrested until this year, on
July 16, 1992, in Florida. The next day Femia made an
initial appearance before a magistrate in Florida, where he
was represented by court-appointed counsel and waived his
removal hearing. Because the significance of the events
transpiring during Femia's appearance are at issue, we give a
detailed summary here.
During the proceedings in Florida, Femia's court-
appointed attorney told the magistrate that he understood
that the government was "going to move for detention," that
he had discussed that issue with Femia, and that "with [t]he
Court's agreement, we would like the detention hearing to be
heard in Massachusetts, as well." The magistrate responded,
"Okay. Under those circumstances, I'll have the Government
advise us of the charges and maximum penalties." Femia
waived a formal reading of the indictment. The United States
Attorney then summarized the charges against Femia and noted
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that the maximum penalties Femia faced ranged from 15 to 20
years in prison. At that point, the magistrate advised Femia
of his rights. After Femia indicated that he understood the
charges against him and the rights that he had, the
magistrate continued:
All right. In regards to the we need
to have you sign the waiver for removal.
In addition to that, I'm going to have
the Government proffer the reasons of why
they're requesting detention.
I will order the detention if the
proffer is sufficient, I will order the
Defendant to be detained until trial,
subject to his filing subject to his,
again, having a detention hearing when he
arrives in the District of Massachusetts.
The government then proffered the evidence that Femia had
been a fugitive since his indictment in 1986, having first
fled to Canada and then subsequently to Florida and elsewhere
in the United States. He had also used several aliases, as
shown in his criminal record. Finally, the present charges
against him involved "substantial quantities of cocaine, as
well as racketeering charges, . . . some of the most serious
charges in the [f]ederal [s]tatutes," and he had had "prior
involvement with controlled substances."
According to the transcript, the magistrate then
turned to Femia's counsel and stated that "I assume you have
no comment[,]" to which the attorney replied "That's correct,
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Your Honor." The magistrate then made the following
concluding comments:
All right. The Court based upon the
proffer of the Government and the
presumptions which arise under 3142, the
Court finds that the Defendant is a risk
of flight and a danger to the community
and orders that he be bound over that
he be detained until trial and bound over
for further proceedings in the United
States District Court in and for the
District of Massachusetts.
I order for detention, however, it is
without prejudice to the Defendant's
requesting an additional detention/bond
hearing in Massachusetts because of
where he can more properly defend the
charges and the and also more properly
reflect that he might be entitled to a
bond.
The magistrate then asked counsel for Femia and the
government whether there were any other issues to be
addressed, to which both counsel responded that there was
"nothing further."
Subsequently, the magistrate issued an order,
stating that he had held a hearing pursuant to 18 U.S.C.
3142(f) to determine whether Femia should be detained
before trial and that he had found that "no condition or
combination of conditions will reasonably assure the
appearance of this defendant at all future court proceedings"
so that he was ordering him detained until his trial had
concluded. The magistrate then explained why he had ordered
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detention, referring to the charges in the indictment against
Femia, which were serious, and the government's proffer that
Femia had been a fugitive and had used aliases. He also
alluded to the presumption arising under 18 U.S.C. 3142(e)
by virtue of the maximum sentences Femia was facing for his
drug offenses. That presumption had not been rebutted since
defense counsel had presented no evidence. In accordance
with Section 3142(i), the magistrate directed that Femia be
committed to the custody of the Attorney General for
confinement, be permitted to consult with counsel, and be
delivered to appear at all court proceedings. He also
directed that the order was "entered without prejudice so
that the defendant may file a written motion for bond in the
District of Massachusetts." Neither the government nor
Femia's counsel appears to have objected to the proceedings
before the magistrate, nor to his order.
Thereafter, a magistrate-judge for the United
States District Court for the District of Massachusetts
appointed Femia's present counsel. On August 3, 1992, Femia
was arraigned, and Femia entered a not guilty plea. Neither
the government nor Femia's new counsel appears to have
mentioned the issue of detention at the arraignment. In
August, the district court set a September trial date, which
the government subsequently moved to continue "to several
months in the future." The district court granted the
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motion, and soon thereafter Femia's counsel brought a motion
entitled "Defendant's Motion for Review of Magistrate's
Decision to Deny Bail." In his motion, Femia alleged that
continuing the trial for an "indefinite period" without bail
violated his rights. (A trial date of February 22, 1993, now
appears to have been set.) As grounds for his motion, Femia
did not allege that a Section 3142(f) hearing had not been
held, but argued that the magistrate had "made no factual
findings to support his order that defendant is a danger to
the community and a risk of flight" and that "[f]rom reading
the Magistrate's order it appears that the government
proffered all of its evidence." (Emphasis in original.)
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Femia also stated that his mother was willing to post her
real estate as collateral to secure a bond for his release
and that he agreed to be bound by whatever condition of
release the court deemed appropriate, asserting that
conditions existed that would assure his presence and the
safety of the community. In concluding, Femia asked the
court to conduct a hearing "on this matter."
Femia's motion did not describe the Florida
proceedings to the court, nor did Femia submit a transcript
of those proceedings to the court to review. (Indeed, it
appears that Femia's counsel did not have the transcript at
that time, having told the district court that it "appear[ed]
from the magistrate's order" that the government had
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proffered its evidence, a fact clearly evidenced in the
transcript.) Nor did the government appear to be aware of
what had transpired during the Florida proceedings. In its
memorandum objecting to Femia's motion to review the magis-
trate's order, it stated its belief, on the basis of a
telephone conversation with the district court in Florida,
that Femia had waived his right to the detention hearing
altogether. The government urged the district court to
"adopt" the magistrate's decision since Femia had presented
no evidence rebutting the Section 3142(e) presumption and
argued that an additional hearing was unnecessary. Without
referring to Femia's statement that his mother would post her
real estate as collateral for a bond to secure his release,
the government stated simply that "Femia's bald assertion
that he would remain in the community pending trial fails to
satisfy the 'some evidence' requirement under 18 U.S.C.
3142(e)."
The district court did not grant Femia's request
for a hearing, but in a marginal order stated that "[g]iven
the Magistrate-Judge's findings as to the seriousness of the
offense charged, the weight of the government's evidence and
defendant's fugitive status for a period of years, the
detention order is hereby adopted by this court."
On appeal, Femia alleges that his detention was
unlawful because Femia had never received the detention
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hearing required under 18 U.S.C. 3142(f), either in Florida
or in Massachusetts. Although Femia did not present that
argument to the district court, the government has not argued
that Femia has thereby waived the argument. Femia also
claims that the district court's order did not give the
court's reasons for the order, but was a "reflexive
endorsement" of the magistrate's decision and not the de novo
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review required by our decisions. In the alternative, Femia
argues that, on the merits, he should not have been detained.
In an appendix, Femia has submitted to this court the
transcript of the Florida proceedings upon which we have
based our summary of those proceedings.
II. Discussion
II. Discussion
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A. The Hearing in Florida
A. The Hearing in Florida
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Contrary to Femia's allegation, the transcript
makes clear that the magistrate held a detention hearing in
Florida.1 He had the government proffer its reasons for
detention. He provided Femia's counsel an opportunity to
respond, and Femia's counsel advised that there was "nothing
further." From this we infer that Femia's counsel made it
clear to the magistrate judge that he did not wish to make a
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1. We need not address the motion to strike the affidavit
submitted by the government in explanation of the nature of
the Florida proceedings, as the affidavit is unnecessary to
resolution of the issues raised on appeal.
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proffer in opposition to the government's proffer. Based on
the government's proffer and the presumption arising under 18
U.S.C. 3142 that Femia presented a risk of flight and a
danger to the community, the magistrate properly ordered
Femia to be "detained until trial . . . ." His written
detention order explicitly stated the reasons for ordering
Femia's detention.
The detention hearing and order met the
requirements of 18 U.S.C. 3142. The magistrate had a copy
of the Massachusetts indictment before him, charging Femia
with controlled substance offenses carrying maximum penalties
exceeding ten years. Thus, the indictment presumptively
established probable cause to believe that Femia had
committed controlled substance offenses triggering the
Section 3142(e) presumption that "no condition or combination
of conditions will reasonably assure [his] appearance . . .
and the safety of the community . . . ." See United States
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v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States
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v. Vargas, 804 F.2d 157, 162-63 (1st Cir. 1986). Neither
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presumption was rebutted by Femia. Femia's objection that a
judicial officer may not order detention on the basis of a
mere proffer of evidence by the government is simply not
correct. See United States v. Acevedo-Ramos, 755 F.2d 203,
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206-08 (1st Cir. 1985) (holding that the Bail Reform Act had
not changed the principle that "magistrates and judges
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traditionally have been permitted to base their decision
. . . as to possible detention, on hearsay evidence, such as
statements from the prosecution or the defendants about what
they can prove and how"; and stating further that "[o]ften
the opposing parties simply describe to the judicial officer
the nature of their evidence; they do not actually produce
it"); see also United States v. Gaviria, 828 F.2d 667, 669
___ ____ _____________ _______
(11th Cir. 1987) ("We hold that the government as well as the
defense may proceed by proffering evidence subject to the
discretion of the judicial officer presiding at the detention
hearing.").
The magistrate's statements that he would order
detention "subject to [Femia's,] again, having a detention
hearing when he arrives in the District of Massachusetts,"
"without prejudice to the Defendant's requesting an
additional detention/bond hearing in Massachusetts . . .,"
and "without prejudice so that the defendant may file a
written motion for bond in the District of Massachusetts,"
clearly were meant to safeguard Femia's right to request a
detention hearing in Massachusetts. Femia has not yet done
so. The motion he presented to the district court sought
district court review of the magistrate's decision denying
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bail and a hearing in connection with that review. We turn
now to the district court's decision.
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B. The District Court's Decision
B. The District Court's Decision
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We have stated that a district court is to engage
in de novo review of contested detention orders. United
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States v. Tortora, 922 F.2d 880, 883 n.4 (1st Cir. 1990). De
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novo review requires the court to exercise independent
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consideration of the facts properly before it and to include
written findings of fact and a written statement of the
reasons for the detention. United States v. Gaviria, 828
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F.2d 667, 670 (11th Cir. 1987). However, the statutory
requirement of a written statement of reasons is satisfied
and meaningful appellate review is provided if either the
magistrate who issues the order or the district court which
reviews the order provides a statement of reasons. See
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United States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989). If
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the district court agrees fully with the magistrate's order
and reasons, it may adopt the order. United States v. King,
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849 F.2d 485, 490 (11th Cir. 1988). In its discretion, the
district court may conduct supplemental evidentiary hearings.
See Moss, 887 F.2d at 338.
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In reviewing the magistrate's order, the district
court had before it the detention order, Femia's motion to
review that order, and the government's opposition. (As
noted above, neither party made the transcript of the Florida
hearing available to the district court.) The magistrate's
order recited the specific findings of fact relied upon by
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the magistrate to support detention: that Femia was charged
in a "multi-count" indictment with controlled substance
violations occurring on "various dates"; that there was a
presumption in favor of detention due to the length of
imprisonment Femia was facing; that the government had
proffered that Femia had been a fugitive since 1986, had
lived in Canada and various places in the United States, and
had used many aliases; that defense counsel presented no
rebuttal evidence; and that the charges against Femia were
serious.
Femia's motion for review of the magistrate's
decision stated that the magistrate had made no findings of
fact and objected that the government had not presented its
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evidence. In addition, Femia's motion represented that
Femia's mother was willing to post her real estate as
collateral to secure a bond for his release. However, no
statement by Femia's mother was provided, nor did the motion
indicate the value, nature or location of the real estate.2
The motion further stated that Femia agreed "to be bound by
whatever other condition of release this Court deems
appropriate" and that "there are conditions or a combination
of conditions which would assure the presence of the
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2. On appeal, Femia states that his mother is a
Massachusetts resident and that the real estate in question
is her home, but those facts were not proffered to the
district court.
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defendant and the safety of the community." The motion made
no suggestion as to what those conditions might be, however.
The district court adopted the magistrate's
detention order. The court referred to the seriousness of
the charges against Femia, the weight of the government's
evidence, and Femia's "fugitive status for a period of
years." Given its adoption of the magistrate's order, which
stated the magistrate's findings of fact and reasons for
ordering detention, the court's statement of reasons was
adequate. The detention order was based on the unrebutted
legal presumption arising under Section 3142. Absent
evidence to rebut the presumption, see United States v.
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Jessup, 757 F.2d 378, 384 (1st Cir. 1985), there was no basis
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for revoking the magistrate's order. Femia's representation
that his mother would offer her real estate as collateral did
not constitute a sufficient basis to overcome the
presumption. See United States v. Perez-Franco, 839 F.2d 867
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(1st Cir. 1988) (district court did not err in refusing to
release defendant pursuant to proposed conditions: among
other things, defendant had proposed that the homes of his
relatives be posted as security, but presented no evidence
that family was willing to do so); see also United States v.
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Harris, 732 F. Supp. 1027, 1033 (N.D. Cal. 1990) (detainee's
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argument that he would enter a drug rehabilitation program
and that his aunt, with whom he had lived for twelve years,
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would post $100,000 home as security, insufficient to rebut
Section 3142(e) presumption).
Femia challenges both grounds for the Section 3142
presumption; i.e., that he was a danger to the community and
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presented a risk of flight.3 First, he asserts that "there
is no dispute that [his] alleged drug related activities
concluded over six years ago and did not continue until the
present day" and that "there is nothing to suggest that
defendant is capable of engaging in any type of drug
trafficking today." Neither claim has any support in the
record, which contains no information whatever about Femia's
activities while a fugitive or about Femia's ability, if
released, to resume his alleged drug activities.
Femia also disputes the finding that he poses a
risk of flight. Like the district court, we have little
difficulty concluding that Femia's uncontroverted flight from
prosecution and his use of aliases amply supported this
finding.
Affirmed.
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3. The government need not establish both grounds to justify
detention. See United States v. Dillon, 938 F.2d 1412, 1417
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(1st Cir. 1991).
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United States v. Harris , 732 F. Supp. 1027 ( 1990 )
United States v. Frank O. Moss , 887 F.2d 333 ( 1989 )
United States v. Frances King , 849 F.2d 485 ( 1988 )
United States v. Juan Vargas , 804 F.2d 157 ( 1986 )
United States v. Jorge Enrique Gaviria and Jose Elkin ... , 828 F.2d 667 ( 1987 )
United States v. Hector Acevedo-Ramos , 755 F.2d 203 ( 1985 )
United States v. Mark Jessup , 757 F.2d 378 ( 1985 )
United States v. Jose Rafael Perez-Franco, United States v. ... , 839 F.2d 867 ( 1988 )