United States v. Montalvo-Murillo/Opinion of the Court

Both the District Court, 713 F.Supp. 1407 (NM 1989), and the Court of Appeals for the Tenth Circuit, 876 F.2d 826 (1989), found that one Montalvo-Murillo, a suspect held in pretrial custody on federal criminal charges, posed a risk of flight and a danger to the community. Because no condition of release could give reasonable assurances against these contingencies, detention was required by the Bail Reform Act of 1984, 18 U.S.C. § 3142(e). The District Court and Court of Appeals held, nevertheless, that Montalvo-Murillo must be released because there had been a failure to observe the Act's directions for a timely hearing. § 3142(f). To no one's great surprise, the suspect became a fugitive after his release and is still at large.

We granted certiorari, 493 U.S. 807, 110 S.Ct. 47, 107 L.Ed.2d 17 (1989), to resolve a split among the Courts of Appeals on whether failure to comply with the prompt hearing provision of the Act requires the release of a person who is a flight risk or a danger to other persons or the community. #fn-s We decide that the Act does not require release and so we reverse the Court of Appeals. Montalvo-Murillo, though now a fugitive, is the respondent here and is represented by appointed counsel. Respondent's flight does not render the case moot, for our resolution of the dispute determines the course of proceedings if and when he is rearrested on the charges now pending. Since we reverse, the Government may detain respondent at once upon his rearrest without first seeking revocation of the existing release order. See 18 U.S.C. § 3148(b).

* Two provisions of the Bail Reform Act of 1984 are relevant. The substantive provisions that allow detention are contained in subsection (e):

"Detention.-If, after a hearing pursuant to the provisions of     subsection (f) of this section, the judicial officer finds      that no condition or combination of conditions will      reasonably assure the appearance of the person as required      and the safety of any other person and the community, [he]      shall order the detention of the person before trial. . . ."      § 3142(e).

The controversy in this case centers around the procedures for a hearing, found in subsection (f):

"Detention Hearing.-The judicial officer shall hold a hearing     to determine whether any condition or combination of      conditions . . . will reasonably assure the appearance of      such person as required and the safety of any other person      and the community-

.   .    .    ..

"The 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.  Except for good cause, a continuance on motion      of the person may not exceed five days, and a continuance on      motion of the attorney for the Government may not exceed      three days.  During a continuance, such person shall be      detained. . . .  The person may be detained pending      completion of the hearing. . . ."  § 3142(f).

We review the sequence of events to put the statutory issue in proper context. On Wednesday, February 8, 1989, United States Customs Service agents stopped respondent at a New Mexico checkpoint near the international border. The agents discovered approximately 72 pounds of cocaine hidden in respondent's truck. Admitting his plan to link with cocaine purchasers in Chicago, Illinois, respondent agreed to cooperate with the Drug Enforcement Administration (DEA) and to make a controlled delivery under Government surveillance. The DEA took respondent and his truck to Chicago in an attempt to complete the transaction, but the anticipated purchasers did not arrive at the delivery point.

The Government then arranged to transfer respondent back to New Mexico, where a criminal complaint had been filed charging him with possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841. Before his departure, respondent was brought before a Magistrate in the Northern District of Illinois for a transfer hearing pursuant to Federal Rule of Criminal Procedure 40. The hearing was held on Friday, February 10, two days after the initial arrest in New Mexico. Respondent was represented by counsel, and it appears that all parties and the Magistrate agreed that the detention hearing would be held in New Mexico, where the charges were pending. Respondent was returned to New Mexico that same evening.

The weekend intervened. On Monday, February 13, the DEA asked the United States Magistrate's office in New Mexico to schedule a detention hearing. A hearing was convened on Thursday, February 16, and respondent attended with retained counsel. Because the Pretrial Services Office had not yet prepared a report, the Magistrate, sua sponte, ordered a 3-day continuance, but, observing that the following Monday was a federal holiday, scheduled the hearing for Tuesday, February 21. The record shows no request for a waiver of the time limits, no advice to respondent of the right to a hearing within the time provided by the Act, no finding of good cause for continuance, and no objection to continuance by either party. The detention hearing was held as scheduled on February 21. The Magistrate, unconvinced that respondent was a flight risk or danger to other persons or to the community, decided to order release of respondent upon the posting of a $50,000 bond and compliance with other conditions. The Government at once sought review in the District Court.

After holding a de novo detention hearing, on Thursday, February 23, the District Court agreed with the Government that no condition or combination of conditions reasonably would assure respondent's appearance or the safety of the community. Nevertheless, it ordered respondent's release. The court found that the detention hearing had not been held upon respondent's first appearance as specified by § 3142(f), and that pretrial release on conditions was the appropriate remedy for violation of the statutory requirement. The Court of Appeals affirmed. Upon issuance of its mandate, respondent was released and took flight.

Though the Government notes that the statutory phrase "first appearance" is by no means clear, either as an abstract matter or as applied in this case, it does not challenge the Court of Appeals' holding that respondent's detention hearing was held after that event and that continuances were beyond what the Act permits. We decide the case on those same assumptions, though without passing upon them. The sole question presented on certiorari is whether the Court of Appeals was correct in holding that respondent must be released as a remedy for the failure to hold a hearing at his first appearance.

In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), we upheld the Bail Reform Act of 1984 against constitutional challenge. Though we did not refer in Salerno to the time limits for hearings as a feature which sustained the constitutionality of the Act, we recognize that a vital liberty interest is at stake. A prompt hearing is necessary, and the time limitations of the Act must be followed with care and precision. But the Act is silent on the issue of a remedy for violations of its time limits. 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.

The Act, as quoted above, requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight. 18 U.S.C. §§ 3142(e), (f). The Act authorizes detention "after a hearing [held] pursuant to the provisions of subsection (f) of this section." § 3142(e). Subsection (f) provides that "[t]he judicial officer shall hold a hearing" and sets forth the applicable procedures. Nothing in § 3142(f) indicates that compliance with the first appearance requirement is a precondition to holding the hearing or that failure to comply with the requirement renders such a hearing a nullity. It is conceivable that some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute "a hearing pursuant to the provisions of subsection (f)" for purposes of § 3142(e). A failure to comply with the first appearance requirement, however, does not so subvert the procedural scheme of § 3142(f) as to invalidate the hearing. The contrary interpretation-that noncompliance with the time provisions in § 3142(f) requires the release even of a person who presumptively should be detained under § 3142(e)-would defeat the purpose of the Act.

We hold that a failure to comply with the first appearance requirement does not defeat the Government's authority to seek detention of the person charged. We reject the contention that if there has been a deviation from the time limits of the statute, the hearing necessarily is not one conducted "pursuant to the provisions of subsection (f)." There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent. See French v. Edwards, 13 Wall. 506, 511, 20 L.Ed. 702 (1872) ("[M]any statutory requisitions intended for the guide of officers in the conduct of business devolved upon them . . . do not limit their power or render its exercise in disregard of the requisitions ineffectual"). In our view, construction of the Act must conform to the " 'great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.' " Brock v. Pierce County, 476 U.S. 253, 260, 106 S.Ct. 1834, 1839, 90 L.Ed.2d 248 (1986) (quoting United States v. Nashville, C. & St. L.R. Co., 118 U.S. 120, 125, 6 S.Ct. 1006, 1008, 30 L.Ed. 81 (1886)).

In Brock v. Pierce County, supra, the Court addressed a statute that stated that the Secretary of Labor "shall" act within a certain time on information concerning misuse of federal funds. The respondent there argued that a failure to act within the specified time divested the Secretary of authority to act to investigate a claim. We read the statute to mean that the Secretary did not lose the power to recover misused funds after the expiration of the time period. Congress' mere use of the word "shall" was not enough to remove the Secretary's power to act. Id., 476 U.S. at 260, 106 S.Ct., at 1839 (footnote omitted) ("We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act").

In a similar manner, in this case the word "shall" in the Act's hearing time requirement does not operate to bar all authority to seek pretrial detention once the time limit has passed. Although the duty is mandatory, the sanction for breach is not loss of all later powers to act. The argument that failure to comply with the Act's time limits prohibits the Government from moving for detention proves too much. If any variation from the time limits of subsection (f) prevents a detention hearing from being "a hearing pursuant to subsection (f)," then the same would have to be true of any deviation from the other procedures prescribed by § 3142(f). During the hearing, a person is entitled to be represented by counsel, present witnesses, testify on his own behalf, cross-examine Government witnesses, and present additional evidence. 18 U.S.C. § 3142(f). If we suppose an error that infringes any of these rights in an insignificant way, we doubt that anyone would make the serious contention that a hearing, otherwise perfect, is not "a hearing pursuant to" the statute because such an error occurred. Nor should a hearing held after the person's first appearance prevent detention.

To avoid the logical implications of his argument with regard to procedural violations other than timeliness, respondent admits that other infringements could be subject to a harmless-error analysis. This position cannot be reconciled with respondent's contention that absolute compliance with the provisions of subsection (f) is mandated by subsection (e). If a failure to follow the provisions of subsection (f) with respect to timeliness means that a condition precedent for detention is lacking, then a failure to comply with the other provisions of subsection (f) would have the same effect. It is no answer to respond that a hearing that violates some of the procedural requirements of subsection (f) may still be "fair," while a hearing held after the person's first appearance cannot be "prompt." If there has been a failure to observe the time limits of the Act, it does not follow that there must be a presumption of prejudice, either as an empirical matter or based on our precedents. We need seek only a practical remedy, not one that strips the Government of all authority to act. Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988).

Our conclusion is consistent with the design and function of the statute. We have sustained the Bail Reform Act of 1984 as an appropriate regulatory device to assure the safety of persons in the community and to protect against the risk of flight. We have upheld the substantive right to detain based upon the Government's meeting the burden required by the statute. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Automatic release contravenes the object of the statute, to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee. The end of exacting compliance with the letter of § 3142(f) cannot justify the means of exposing the public to an increased likelihood of violent crime by persons on bail, an evil the statute aims to prevent. See S.Rep. No. 98-225, p. 3 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3185 ("Federal bail laws must address the alarming problem of crimes committed by persons on release and must give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released"). The Government's interest in preventing these harms remains real and substantial even when the time limits have been ignored. The safety of society does not become forfeit to the accident of noncompliance with statutory time limits where the Government is ready and able to come forward with the requisite showing to meet the burden of proof required by the statute.

Assessing the situation in realistic and practical terms, it is inevitable that, despite the most diligent efforts of the Government and the courts, some errors in the application of the time requirements of § 3142(f) will occur. Detention proceedings take place during the disordered period following arrest. As this case well illustrates, circumstances such as the involvement of more than one district, doubts about whether the defendant was subject to temporary detention under § 3142(d), and ambiguity in requests for continuances may contribute to a missed deadline for which no real blame can be fixed. In these situations, there is no reason to 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.

In the case before us, of course, it is not clear that the Government bears the responsibility for the delay, for the Magistrate continued the hearing sua sponte when the Government announced that it was ready to proceed. But even on the assumption that a violation of the Act occurred and that the Government should bear some of the responsibility for it, the Court of Appeals erred in holding that the Government is barred from proceeding under the Act.

We find nothing in the statute to justify denying the Government an opportunity to prove that the person is dangerous or a risk of flight once the statutory time for hearing has passed. We do not agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits. Magistrates and district judges can be presumed to insist upon compliance with the law without the threat that we must embarrass the system by releasing a suspect certain to flee from justice, as this one did in such a deft and prompt manner. The district court, the court of appeals, and this Court remain open to order immediate release of anyone detained in violation of the statute. Whatever other remedies may exist for detention without a timely hearing or for conduct that is aggravated or intentional, a matter not before us here, we hold that once the Government discovers that the time limits have expired, it may ask for a prompt detention hearing and make its case to detain based upon the requirements set forth in the statute.

An order of release in the face of the Government's ability to prove at once that detention is required by the law has neither causal nor proportional relation to any harm caused by the delay in holding the hearing. When a hearing is held, a defendant subject to detention already will have suffered whatever inconvenience and uncertainty a timely hearing would have spared him. Release would not restore these benefits to him. United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667, 66 L.Ed.2d 564 (1981) (remedies should be tailored to the injury suffered). This case is similar to New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), in which we held that an unlawful arrest does not require a release and rearrest to validate custody, where probable cause exists. In this case, a person does not become immune from detention because of a timing violation.

Our ruling is consistent also with Bank of Nova Scotia v. United States, 487 U.S., at 256, 108 S.Ct., at 2374, where we held that nonconstitutional error will be harmless unless the court concludes from the record as a whole that the error may have had a "substantial influence" on the outcome of the proceeding. In this case, it is clear that the noncompliance with the timing requirement had no substantial influence on the outcome of the proceeding. Because respondent was dangerous and likely to flee, he would have been detained if his hearing had been held upon his first appearance rather than a few days later. On these facts, the detention was harmless. See ibid.; Morrison, supra, 449 U.S. at 364-367, 101 S.Ct., at 667-669 (inappropriate to dismiss indictment because of Sixth Amendment violation that had no adverse impact on proceedings). This approach is consistent with the principle of harmless-error analysis that is the governing precept in most matters of criminal procedure. Fed.Rule Crim.Proc. 52. We have no need to consider in this case the remedies available to a person detained beyond the statutory limit and later found eligible for release. We hold that respondent was not, and is not, entitled to release as a sanction for the delay in the case before us.

Reversed.

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.