United States v. Femia

• Court: Court of Appeals for the First Circuit
• Decided: January 15, 1993
• Docket: 92-2324
• Status: Published

Opinion

USCA1 Opinion

January 12, 1993      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 92-2324

UNITED STATES,

                                      Appellee,

                                          v.

                                     NOEL FEMIA,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ___________________

                                        Before

                                 Selya, Cyr and Boudin,        
                                   Circuit Judges.
                                   ______________

                                  __________________

James  E. Carroll, John J. O'Connor and Peabody & Arnold, on
               _________________  ________________     ________________
          brief for appellant.
               A.  John Pappalardo,  United States  Attorney, and  Heidi E.
               ___________________                                 ________
          Brieger, Assistant United States Attorney, on brief for appellee.
          _______

__________________

                                 __________________ 

Per  Curiam.   Noel  Femia appeals an  order by the
                      ___________

            district court denying him bail.  We affirm.

I.  Facts
                      I.  Facts
                          _____

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.)
            _________

            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

-6-

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

-7-

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
                                                                  __ ____

            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
                           __________

                           A.  The Hearing in Florida
                           A.  The Hearing in Florida
                               ______________________

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

____________________

            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.

                                         -8-

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
                                                       ___  _____________

            v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States
               ______                                       _____________

            v. Vargas, 804  F.2d 157,  162-63 (1st Cir.  1986).   Neither
               ______

            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,
                      ___  _____________    _____________

            206-08  (1st Cir. 1985) (holding that the Bail Reform Act had

            not  changed  the  principle  that  "magistrates  and  judges

-9-

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
                           ______

            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
                               _____________________________

We  have stated that a  district court is to engage

            in de  novo  review of  contested detention  orders.   United
               __  ____                                            ______

            States v. Tortora, 922 F.2d 880, 883 n.4 (1st Cir. 1990).  De
            ______    _______                                          __

            novo  review  requires  the  court  to  exercise  independent
            ____

            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
                                          ______________     _______

            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
                                                                      ___

            United States v. Moss, 887 F.2d 333, 338 (1st Cir. 1989).  If
            _____________    ____

            the district  court agrees fully with  the magistrate's order

            and reasons, it may adopt the  order.  United States v. King,
                                                   _____________    ____

            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.
            ___ ____

                      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
                                                            _________

            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

____________________

            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.

                                         -12-

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.
                                                   ___  _____________

            Jessup, 757 F.2d 378, 384 (1st Cir. 1985), there was no basis
            ______

            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
                          ___ _____________    ____________

            (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.
                                                ___ ____ _____________

            Harris, 732 F. Supp. 1027,  1033 (N.D. Cal. 1990) (detainee's
            ______

            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
                          ____

            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.
                      ________

____________________

            3.  The government need not establish both grounds to justify
            detention.   See United States v. Dillon, 938 F.2d 1412, 1417
                         ___ _____________    ______
            (1st Cir. 1991).

                                         -14-