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

   No. 89-163

   In The Supreme Court Of The United States

   October Term, 1989

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

   Reply Memorandum For The United States

   1. The government seeks review of the court of appeals' ruling that
a magistrate's failure to observe the "first appearance" requirement
of the Bail Reform Act of 1984, 18 U.S.C. 3142(f) (Supp. V 1987),
requires the pretrial release of a person who would otherwise be
subject to pretrial detention.  Respondent contends (Br. in Opp. 4-5)
that this dispute is now moot because -- contrary to his
representations at the detention hearing -- he did exactly what the
government warned that he would do:  once released, he immediately
fled the jurisdiction to avoid prosecution.  Far from establishing
mootness, respondent's flight underscores the need for this Court to
review the court of appeals' error.

   Respondent argues (Br. in Opp. 4) that the government cannot seek
review of the court of appeals' decision, but it does "ha(ve) the
option" of revoking his release.  See 18 U.S.C. 3148 (Supp. V 1987).
However, he offers no explanation why, if the government can pursue
that remedy, it cannot seek review of the erroneous release order.  If
respondent were correct in asserting that the matter is moot, then no
remedy would be available.  In any event, the release order in this
case cannot be revoked until respondent is rearrested.  The Bail
Reform Act's release revocation provisions specify that the government
immediately may obtain a warrant for the fugitive's arrest, but they
indicate that the revocation proceedings do not begin until the
fugitive has been "brought before a judicial officer * * * for a
proceeding in accordance with this section." 18 U.S.C. 3148 (Supp. V
1987).  Thus, the Bail Reform Act's release revocation provisions,
like the Act's provision of penalties for failure to appear (18 U.S.C.
3146 (Supp. V 1987)), do not provide a means of correcting the court
of appeals' ruling.

   Respondent also contends (Br. in Opp. 5) that the government's
reliance on this Court's decision in United States v. Sharpe, 470 U.S.
675 (1985), is misplaced because "(m)ootness was not truly an issue in
Sharpe." This Court's opinion in Sharpe indicates that respondent is
incorrect.  It unequivocally states that "respondents' fugitive status
does not render this case moot" because "our reversal of the Court of
Appeals' judgment may lead to reinstatement of respondents'
convictions" (id. at 681 n.2).  Similarly, this case is not moot
because the Court's reversal of the court of appeals' decision would
lead to imposition of a detention order.

   2. Respondent additionally contends (Br. in Opp. 5-6) that this
case does not warrant the Court's review because "(t)he Courts of
Appeals do not clearly disagree on the issue." The court of appeals
did not concur in that assessment.  See Pet. App. 13a ("circuit courts
are divided in their conclusion as to what the remedy should be").  As
we explained in our petition (at 11 & n.7), the First, Fourth, and
Eleventh Circuits have all declined to follow the rule that the court
applied in this case.  See United States v. Clark, 865 F.2d 1433, 1436
(4th Cir. 1989) (en banc);  United States v. Vargas, 804 F.2d 157, 162
(1st Cir. 1986);  United States v. Hurtado, 779 F.2d 1467, 1481-1482
(11th Cir. 1985).  Moreover, the issue has continuing and far-reaching
importance.  See Pet. 11-13.

   3. Finally, respondent argues (Br. in Opp. 8-10) that the court of
appeals' decision is correct.  He acknowledges that the Bail Reform
Act does not set forth the remedy for a violation of the "first
appearance" requirement, but he contends that "(l)ogic" compels the
court of appeals' result in this case.  The consequence of
respondents' "logic" is that a person who was arrested and charged
with smuggling 72 pounds of cocaine across an international border was
released from custody under conditions that the district court
concluded would not "reasonably assure the appearance of the person as
required and the safety of any other person and the community" (18
U.S.C. 3142(e) (Supp. V 1987)).  See Pet. App. 16a.  To no one's
surprise, the person fled.  We do not believe that the Bail Reform Act
or any principle of "logic" requires that result.

   For the foregoing reasons, and for the reasons set forth in the
petition for a writ of certiorari, it is therefore respectfully
submitted that the petition should be granted.

   KENNETH W. STARR

      Solicitor General

   SEPTEMBER 1989