Chaklader v. United States

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1993
• Docket: 92-1818
• Status: Published

Opinion

USCA1 Opinion

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.  

                                         -2-

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.

                                         -3-

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

-4-

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
                                      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).

-5-

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
                                                   ________ _____________

-6-

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

-7-

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.
                      ________

-8-