UNITED STATES OF AMERICA, PETITIONER V. GUADALUPE MONTALVO-MURILLO

   No. 89-163

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Tenth Circuit

   Reply Brief For The United States

   The United States petitioned this Court for review in this case to
resolve a conflict among the circuits on an issue of great practical
importance:  whether any failure to observe the Bail Reform Act's
"first appearance" provision requires the pretrial release of a person
who would otherwise be subject to pretrial detention.  Respondent
expends considerable energy explicating the procedural violation that
supposedly occurred in this case.  We submit that respondent's
interpretation of the record is incorrect.  In the end, however, that
dispute is beside the point.  The important issue is the consequence
of the supposed violation.  Respondent offers no sound justification
for his position that any violation of the "first appearance" and
continuance provisions, no matter how minor, entitles a defendant to
pretrial release on conditions that have been judicially determined to
be insufficient to prevent his flight and continued criminality.

   1. Respondent criticizes our characterization of the events leading
to the district court's release order in this case, so it may be
useful to review the events briefly.

   Wednesday, February 8, 1989:  Customs agents stopped respondent
near Orogrande, New Mexico, and found him in possession of 72 pounds
of cocaine.  After being given Miranda warnings, respondent agreed to
cooperate with Customs and DEA agents by making a "controlled
delivery" of the drugs to persons he said were awaiting their delivery
in Chicago.  The agents flew to Chicago with respondent later that
day.  Pet. App. 4a-5a;  Tr. 7-8 (Feb. 23, 1989).  /1/

   Friday, February 10, 1989:  The controlled delivery in Chicago
failed.  While respondent and the agents were still in Chicago, the
government filed a criminal complaint in New Mexico charging
respondent with possession of cocaine and obtained a warrant for his
arrest on that complaint.  Respondent was then promptly brought before
a United States magistrate in Chicago for a transfer hearing.  See
Fed. R. Crim. P. 40.  The prosecutor who was handling the hearing
stated at that time that she had intended to move for detention but
that instead she had reached an agreement with respondent's appointed
lawyer under which respondent would consent to be returned to New
Mexico and would waive his right to both a detention hearing and a
preliminary hearing in Chicago.  Respondent was returned to New Mexico
that evening.  Pet. App. 5a-6a;  J.A. 16-19.  /2/

   Monday, February 13, 1989:  On Monday morning, the government asked
the United States magistrate in Las Cruces to schedule a detention
hearing for respondent.  The magistrate's office scheduled the hearing
for the next available date, February 16.  Pet. App. 6a-7a;  Tr. 21
(Feb. 23, 1989).  /3/

   Thursday, February 16, 1989:  The magistrate held a brief hearing.
He noted that the government would be filing a written detention
motion shortly.  Because the pretrial services office had not
completed its report on respondent, the magistrate continued the
detention hearing for two working days, until February 21, 1989
(Monday, February 20, 1989, was a holiday).  Respondent did not object
to the continuance, although respondent's counsel expressed the view
at that time that the government should have moved for detention in
Chicago, at the time of his transfer hearing.  Pet. App. 7a;  J.A.
21-23.  /4/

   Friday, February 17, 1989:  The government filed its written
motion, requesting that respondent be detained.  Pet. App. 8a.

   Tuesday, February 21, 1989:  The magistrate held a detention
hearing, at the conclusion of which the magistrate ordered the
defendant released on conditions.  Pet. App. 8a.

   Thursday, February 23, 1989:  The district court held a hearing on
the government's appeal from the magistrate's release order.  The
court found that respondent was detainable under the standards set
forth in 18 U.S.C. 3142(e) but that he had to be released because the
detention proceedings had not complied with the time limits in the
"first appearance" provision of the Bail Reform Act, 18 U.S.C.
3142(f).  Pet. App. 22a-24a, 30a-31a.

   This chronology shows not a callous disregard for the defendant's
rights, as respondent suggests, but an effort on the part of the
government and the court to proceed expeditiously under unusual
circumstances.  The government brought respondent before a judicial
officer on the day of his arrest in Chicago, where he waived his right
to an immediate detention hearing.  Respondent was returned to New
Mexico pursuant to court order that night, and on the morning of the
next working day the government requested that the New Mexico
magistrate schedule a detention hearing on the next available court
day;  the magistrate then ordered a continuance of the detention
hearing for two working days, without objection by respondent to the
continuance.  The hearing before the magistrate and the appeal to the
district court were then completed within two days.

   This chronology, and the debate between the parties about the
proper characterization of various events and motions, demonstrates
how difficult it can be to interpret and apply the time requirements
of Section 3142(f).  If respondent validly waived his right to an
immediate detention hearing in Chicago, or if respondent's "first
appearance before the judicial officer" for purposes of the Act did
not occur until February 16 in New Mexico, the Act may not have been
violated at all (since the detention hearing was held only two working
days later, on February 21).  Although the district court and the
court of appeals ruled against the government on both of those points,
there is at least a substantial argument, based on case law in other
circuits, that under the circumstances of this case there was no
violation of the time limits of Section 3142(f) at all.  /5/

   We make these observations for two reasons.  First, while we have
not asked this Court to review the court of appeals' conclusion that
the "first appearance" requirement was violated, we submit that a fair
reading of the record shows, at a minimum, that the violation was not
flagrant.  Second, the debate in this case about the proper
characterization of various proceedings is exactly the kind of dispute
that courts have been struggling with and will continue to struggle
with, if a technical violation of the Section 3142(f) time limitations
requires automatic release on conditions.  /6/ The time-consuming, and
ultimately unproductive, debates among the courts of appeals over what
constitutes a "first appearance," whether the right to a detention
hearing can be waived, when a judicial officer may grant a continuance
sua sponte, and how weekends and holidays should be counted, see Pet.
9-10, are an unfortunate by-product of a rule in which a timing error
automatically defeats the government's right to detain the defendant,
no matter how minor the error or how clear the case for detention may
be.  And, because detention proceedings are invariably conducted
during the often-chaotic period immediately following a defendant's
arrest, it is likely that minor errors in the application of the time
limits of Section 3142(f) will continue to be made in a significant
number of cases, despite the best efforts of agents, prosecutors, and
magistrates.

   2. Respondent's legal argument is based on language from 18 U.S.C.
3142(e), which states that detention can be ordered only "after a
hearing pursuant to the provisions of subsection (f) of this section."
Respondent argues that if there is any deviation from the time limits
set forth in Section 3142(f), the hearing has not been conducted
"pursuant to the provisions of subsection (f)," and detention
therefore may not be ordered.

   Respondent's argument proves too much.  If a deviation from the
time limitations in Section 3142(f) renders the detention hearing not
"a hearing pursuant to the provisions of subsection (f)," the same
would logically be true of other deviations from the hearing
procedures set forth in Section 3142(f).  Thus, the court's failure to
permit the defendant to testify, or its failure to permit him to
cross-examine a witness at the hearing, would not be subject to
harmless error analysis and, in fact, would not even permit the court
to hold a new, error-free detention hearing.  /7/

   Understandably, respondent backs away from the implications of his
position with respect to procedural defects other than timeliness,
suggesting that other errors may be subject to harmless error
analysis.  See Br. 20.  But petitioner does not adequately explain how
that concession is consistent with his "plain meaning" interpretation
of Section 3142(e).  If a failure to follow "the provisions of
subsection (f)" with respect to timeliness means that a condition
precedent for detention has not been satisfied, it is hard to
understand why a failure to comply with other provisions of Section
3142(f) would not have the same effect.  It is not enough to say, as
respondent does (Br. 23-24), that a hearing that violates some of the
procedural requirements of Section 3142(f) may still be "fair," but
that a hearing that is not held "immediately upon the person's first
appearance before the judicial officer" cannot be "prompt." Just as a
minor procedural deviation may not render a hearing materially less
fair, a minor delay in holding the hearing does not render it
significantly less prompt.

   Many statutes and rules dictate the procedures that are to be
followed in particular proceedings -- often in mandatory terms.  But
while the failure to comply with those procedural requirements may be
error, that does not necessarily mean that the proceeding in question
is void or that the party seeking to vindicate a right through that
proceeding must permanently be denied relief.  For example, Rule 6(d),
Fed. R. Crim. P., states that, with certain exceptions, no person
other than "the witness under examination" may be present while a
grand jury is in session.  Even though that rule is stated in
mandatory terms, the Court has held that it is subject to harmless
error analysis.  Bank of Nova Scotia v. United States, 108 S. Ct.
2369, 2378 (1988).  Similarly, Rule 43(a) states in mandatory terms
that, except in specified circumstances, the defendant "shall be
present * * * at every stage of the trial." Nonetheless, this Court
has held that violations of Rule 43 are subject to the harmless error
rule.  Rogers v. United States, 422 U.S. 35 (1975).  Finally, Rule
32(a), Fed. R. Crim. P., requires that sentence be imposed without
"unreasonable delay." Nonetheless, even if a defendant shows that the
delay in sentencing was unreasonable, he is not entitled to relief for
unreasonable delay unless he can show that the delay prejudiced him.
United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976), cert.
denied, 434 U.S. 851 (1977);  United States v. James, 459 F.2d 443
(5th Cir. 1972).

   3. Respondent argues that harmless error principles are not
applicable to this case for several reasons, but those reasons do not
withstand analysis.  Contrary to respondent's assertion (Br. 19-20),
Rule 52(a), Fed. R. Crim. P., applies to trial level proceedings and
is not simply a standard for appellate review.  See Bank of Nova
Scotia, 108 S. Ct. at 2374 (district court may not disregard Rule
52(a) and dismiss indictment because of misconduct before the grand
jury if the misconduct did not prejudice the defendant).  If the error
in this case was not one that "affect(ed) substantial rights," the
district court should have disregarded it.  The implication of
respondent's interpretation of Rule 52(a), as applied to other kinds
of errors, is that a district court would be required routinely to
grant a new trial upon discovering any error at all in the
proceedings, but that the reviewing court, applying harmless error
principles, would be required to reverse the new trial order whenever
it found the error to be harmless.  Criminal litigation has never
functioned that way and, we hope, never will.

   Respondent seeks to distinguish the harmless error cases cited at
page 16, note 7, of our opening brief on the ground that "those cases
deal with the post-conviction review of a constitutional violation of
the defendant's rights" (Br. 18 n.10), rather than a statutory
violation, as in this case.  It is simply not the case, however, that
constitutional errors are subject to harmless error analysis and
statutory errors are not.  See United States v. Lane, 474 U.S. 438,
446 n.9 (1986).  Indeed, this Court's cases suggest that harmless
error principles apply more broadly to claims of statutory error than
to claims of constitutional error.  See Chapman v. California, 386
U.S. 18 (1967) (constitutional errors are subject to stringent "beyond
a reasonable doubt" test for harmless error);  Bank of Nova Scotia,
108 S. Ct. at 2374-2375 (nonconstitutional errors are 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).

   Respondent contends that to apply a harmless error analysis to
violations of the "first appearance" provision of Section 3142(f)
would render that provision a dead letter.  That argument assumes that
prosecutors and magistrates would willfully ignore statutory mandates.
 We doubt that magistrates and prosecutors will behave in that
fashion.  Even assuming bad faith on the part of court officers, the
district courts and courts of appeals have within their power
sanctions that can have a much more direct effect on magistrates and
prosecutors who willfully disregard the statutory requirements.
Disciplinary actions against officials who ignore the statutory time
limitations are likely to have a far greater impact, especially on
magistrates, than legal rules that simply require that detention be
denied if the magistrate does not hold a timely detention hearing.

   The costs imposed by a rule requiring automatic release for any
violation of Section 3142(f)'s time limits, we submit, far outweigh
the costs imposed by a harmless error rule.  A rule of automatic
release will mean that defendants who have been judicially determined
to be dangerous or to be flight risks will have to be released;  it
can confidently be predicted that many of them, like respondent in
this case, will flee or commit other crimes.  In addition, a rule of
automatic release will give defendants, especially defendants who are
very likely to be detained, no incentive to avoid a violation of the
time limitations.  In this case, there likely would have been no
violation at all if respondent had refused to waive his right to a
detention hearing in Chicago, or if he had insisted on a detention
hearing earlier than February 16, or if he had opposed the continuance
of the hearing until February 21.  But respondent voiced no objection
at any of those points, and, if the court of appeals' judgment is
affirmed, his silence will be rewarded.  The per se rule that
respondent advocates thus provides a huge incentive to "sandbagging"
by defendants whose only hope of release is that the magistrate or the
prosecutor will make a technical timing error in the proceedings
leading to the detention order.

   4. Respondent suggests (Br. 14) that "Rule 4(a) of the Federal
Rules of Appellate Procedure provides a useful analogy," and asserts
that the Bail Reform Act's provisions governing the timing of a
hearing should be treated, like Rule 4's time limits, as mandatory and
jurisdictional.  The comparison is inapt.  This Court has long
recognized that the time limits imposed by this rule (and predecessor
statutes) must be strictly observed to assure the finality of
judgments.  E.g., Browder v. Director, Dep't of Corrections, 434 U.S.
257, 264 (1978).  The Court has stated:

         The purpose of the rule is clear:  It is "to set a definite
      point of time when litigation shall be at an end, unless within
      that time the prescribed application has been made;  and if it
      has not, to advise prospective appellees that they are freed of
      the applicant's demands.  Any other construction of the statute
      would defeat its purpose."

Ibid., quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415
(1943).  The Bail Reform Act's provisions governing the timing of a
detention hearing serve an entirely different purpose.  As respondent
recognizes (Br. 20), they are intended to protect the arrestee's and
the government's interest in obtaining a prompt, but reasoned,
determination of the defendant's eligibility for pretrial release.  A
rule that requires automatic release of the defendant for any
violation of the time limits would subvert, rather than advance, that
goal.

   For the foregoing reasons, and for those stated in our opening
brief, the judgment of the court of appeals should be reversed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   JANUARY 1990

   /1/ Respondent is critical of the government for not taking him
before a magistrate in New Mexico on February 8, 1989, for an initial
appearance.  See Resp. Br. 1-2, 21.  As the prosecutor explained to
the district court, however, shortly after respondent was apprehended,
he agreed to participate in a "controlled delivery" of the cocaine in
Chicago.  Respondent then voluntarily accompanied the agents to
Chicago in an attempt to apprehend the other participants in the
smuggling venture.  His arrest was therefore postponed until after the
controlled delivery.  When the controlled delivery failed, the
government on February 10, 1989, filed a complaint, obtained an arrest
warrant, and promptly took respondent before a federal magistrate in
Chicago for an initial appearance and transfer hearing under Rule 40,
Fed. R. Crim. P.  Even if respondent were deemed to be under arrest
during the period of the controlled delivery for purposes of Rule 5,
Fed. R. Crim. P., it was not improper to postpone respondent's initial
appearance until February 10.  To hold an initial appearance before
the controlled delivery would have increased the risk that
respondent's accomplices would learn of his arrest, which would defeat
any prospect of a successful controlled delivery in Chicago.  See Tr.
8, 13, 17 (Feb. 23, 1989).  Rule 5 provides that an arrestee must be
taken before a magistrate for an initial appearance "without
unnecessary delay." Because of respondent's agreement to cooperate
with the agents and the need to avoid compromising his status as a
cooperating witness, the delay in taking him before a magistrate was
"necessary" and therefore did not result in a violation of Rule 5.

   /2/ Respondent contends (Br. 2, 9, 13) that the government moved
for detention on February 10 in Illinois and that the detention
hearing should have been conducted there or promptly upon his return
to New Mexico.  As the district court and the court of appeals found,
however, while the government clearly signaled at the February 10
hearing that it would be seeking detention, it did not formally seek
detention at that time.  The government sought detention the following
week when, on February 13, it requested that a detention hearing be
set.  See Pet. App. 11a, 20a, 29a n.5.  Although the court of appeals
treated what transpired at the February 10 hearing as the equivalent
of a motion for detention, in doing so the court recognized that no
specific motion had been made.  Id. at 11a.  Respondent notes (Br. 10)
that the New Mexico prosecutor told the district court that he
believed a detention motion had been made in Chicago, but that was
before the prosecutor, who did not handle the Chicago hearing, had had
an opportunity to see the transcript of that hearing.  See Tr. 22
(Feb. 23, 1989).

   /3/ The magistrate in Las Cruces was a part-time magistrate and was
unavailable between Monday, February 13, and Thursday, February 16.
See J.A. 43.

   /4/ Respondent asserts (Br. 9 n.4) that we are wrong in identifying
the February 16 hearing as the one at which the government first
sought detention.  The government, however, specifically requested the
February 16 hearing for the purpose of seeking a detention order.
Although the "first appearance" requirement is normally triggered by a
formal motion for detention, in the circumstances of this case the
request for a detention hearing was a sufficiently clear indication of
the government's intentions that the February 16 hearing may be
regarded as respondent's "first appearance before a judicial officer"
following the government's request for detention.

   /5/ Respondent's waiver of his right to an immediate detention
hearing in Chicago would have been sufficient in either the Second or
Fourth Circuits.  See United States v. Coonan, 826 F.2d 1180, 1184 (2d
Cir. 1987);  United States v. Clark, 865 F.2d 1433, 1436-1437 (4th
Cir. 1989) (en banc).  Moreover, in the Second, Seventh, and Eighth
Circuits, the transfer hearing in Chicago would not have been regarded
as respondent's "first appearance before the judicial officer," either
because it did not occur after a motion for detention, see United
States v. Maull, 773 F.2d 1479, 1483 (8th Cir. 1985) (en banc), or
because a transfer hearing is not regarded as a "first appearance" for
purpose of Section 3142(f), see United States v. Melendez-Carrion, 790
F.2d 984, 990 (2d Cir. 1986);  United States v. Dominguez, 783 F.2d
702, 704-705 (7th Cir. 1986).  The continuance granted, without
objection, from February 16 to February 21 was acquiesced in by the
government and respondent (although respondent preserved an objection
to the government's failure to move for detention in Chicago, J.A.
23).  Respondent's failure to object to the continuance should have
been regarded as an acquiescence in a three- or five-day continuance.
See United States v. Madruga, 810 F.2d 1010, 1014 (11th Cir. 1987)
("Unless a defendant objects to the proposed hearing date on the
stated ground that the assigned date exceeds the three-day maximum, he
is deemed to acquiesce in up to a five-day continuance.");  United
States v. Malekzadeh, 789 F.2d 850, 851 (11th Cir. 1986).  And even if
the three-day continuance period is applicable, rather than the
five-day continuance period (see 18 U.S.C. 3142(f)), the continuance
granted on February 16 was for only two days if weekends and holidays
are excluded, as the Second Circuit has held they should be.  See
United States v. Melendez-Carrion, 790 F.2d at 991.

   /6/ Respondent is critical of our use of the term "automatic
release," since a defendant who is not detained may nonetheless be
subjected to a variety of release conditions.  We use the term
"automatic release" not to suggest that the defendant's release is
unconditional, but because it accurately describes the judicial
officer's obligation under the statute when detention is not
available.  If the judicial officer does not order detention, but
decides instead to impose a financial condition, he may not impose a
condition that the defendant cannot meet.  18 U.S.C. 3142(c)(2).
Thus, if the defendant is not detained, bail must be set at a level
that guarantees that the defendant will be able to obtain his release.

   /7/ Under respondent's theory, of course, a new hearing could not
be held in that situation, because it would be barred by the time
limitations of Section 3142(f).