United States v. Montalvo-Murillo

PETITIONER:United States
RESPONDENT:Guadalupe Montalvo-Murillo
LOCATION: Bernalillo Court House

DOCKET NO.: 89-163
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 495 US 711 (1990)
ARGUED: Jan 09, 1990
DECIDED: May 29, 1990

ADVOCATES:
Bernard J. Panetta, II – on behalf of the Respondent
William C. Bryson – on behalf of the Petitioner

Facts of the case

Guadalupe Montalvo-Murillo (Montalvo) was held in pretrial custody on federal criminal charges for attempting to enter New Mexico from Mexico with 72 pounds of cocaine. Montalvo cooperated with authorities and agreed to make a controlled delivery to the intended purchasers in Chicago. The authorities took Montalvo to Chicago where the purchase fell through, so they transferred Montalvo back to New Mexico where the criminal complaint charging him with possession of cocaine was originally filed. Montalvo’s detention hearing was not held until 13 days after his initial arrest in New Mexico because of the need to transfer him, the passage of two weekends, a federal holiday, and the fact that the government attorneys were unprepared. At Montalvo’s detention hearing, the district court determined that the delays violated the timeliness of proceedings required by the Bail Reform Act (Act). The district court also determined that Montalvo did not pose a flight risk and, to remedy the untimeliness of the pre-trial proceedings, released him. Montalvo fled upon his release. The U.S. Court of Appeals for the Tenth Circuit affirmed the district court’s ruling and held that the government’s failure to uphold the Act’s directions for a timely hearing justified Montalvo’s release.

Question

Did the district court err in holding that the defendant must be released as a remedy for the government’s failure to hold a timely detention hearing?

William H. Rehnquist:

We’ll hear argument next in No. 89-163, United States against Guadalupe Montalvo-Murillo.

Mr. Bryson.

William C. Bryson:

Thank you, Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a violation of the time limits found in the pretrial detention statute require the release of a defendant who is subject to pretrial detention, no matter how strong the case for detention may be.

The case comes to the Court from the United States Court of Appeals for the Tenth Circuit.

But the facts, briefly stated, are as follows:

Is he still a fugitive?

William C. Bryson:

–He is still a fugitive as of this day, Your Honor.

We have not rearrested him.

The defendant was picked up at a border patrol checkpoint some distance from the Mexican border in New Mexico, and found to be carrying 72 pounds of cocaine in his truck.

He chatted with the border patrol officers at that time and agreed to participate in a continuation of the investigation… the so-called “controlled” delivery in Chicago.

He was flown to Chicago to participate in the controlled delivery.

The idea, of course, being to try to capture the people who were buying the cocaine from him.

And the agents… one of the agents drove the truck.

The controlled delivery failed.

The buyers did not show up and Mr. Montalvo was immediately taken into district court.

A complaint and warrant were filed, and he was ordered to… transferred back to New Mexico.

In New Mexico a detention hearing was set and held.

The day of that detention hearing was February 16th.

He had been initially arrested on February 8th, and the transfer hearing had occurred on February 10th.

At the detention hearing, the magistrate, noting that no pre-trial services report had been made and that Mr. Montalvo’s counsel had just been hired about three hours before the hearing, granted a continuance, which… the magistrate was apparently under a misapprehension had been requested by the government, but in fact there’s nothing in the record that reflects it was requested by the government, until February 21st, which was two working days later.

This was over the President’s Day holiday weekend.

At that hearing the magistrate then took evidence and decided that Mr. Montalvo was releasable.

The government immediately took an appeal, and two days later the district court took evidence in a much longer hearing and decided that Mr. Montalvo was in fact not releasable under the pretrial detention standards of the act because he was both a risk of flight and also he presented a case of dangerousness to the community that could not be disposed of by any conditions placed on his liberty.

Mr. Bryson, do you concede that the government failed to comply with the statute here?

You want us to consider the case in that posture?

William C. Bryson:

We do.

We have brought the case to this Court without contesting the question of whether there was a violation.

As we’ve indicated–

Certainly it might have been contested, might it not–

William C. Bryson:

–It was contested in the district court.

–that there was waiver or one thing and another.

William C. Bryson:

There are a number of grounds on which it could be contested, and in fact we did contest it both in the district court and in the court of appeals, but we lost.

And we think the more important question is, assuming a violation, what follows from that?

Now, the district court, having found that Mr. Montalvo was detainable both on risk of flight and on dangerousness, nonetheless said that there was no legal way that the court could detain him because the court found there had been a violation of the time limits of the act, principally because the waiver in Chicago of his right to a detention hearing had not been adequate under Johnson against Zerbst.

And that the magistrate, on February 16th, had failed to… what the magistrate had done that was wrong is that he had a granted a sua sponte continuance rather than having a motion made by one of the parties for a continuance.

You were going to tell us of what other possibilities than release are available.

William C. Bryson:

Yes, Your Honor… Your Honor.

Just very briefly, the court of appeals affirmed on what amount, for our purposes, to essentially the same grounds as the district court, saying that simply the fact that there was a time violation meant that he had to be released on conditions.

Now, our position is that the… once there has been a violation, that the language and purposes of the pretrial detention statute do not require automatic release.

In fact we look to both the language of the statute and the purposes underlying the statute.

And we suggest that what the statute is really about is it provides a limited period within which somebody can be held prior to a detention hearing.

It does not provide or suggest and shouldn’t be held to provide that a detention hearing must be held within a specific period of time, and if it is not held within that period of time that the defendant may not, for any purpose thereafter, be detained.

The language of the statute does not specify, as the court of appeals noted, what the consequences of a violation are.

The language is simply that a hearing shall be held immediately upon the person’s first appearance before the judicial officer, absent a continuance for a period of three days or five days or longer if there’s good cause found.

Well, is this a violation without relief or a remedy?

William C. Bryson:

Well, I don’t think so, Your Honor.

The relief is… is a form of relief that the defendant can see prospectively, if he is in fact held for longer than the period that the statute permits.

Let me give an example.

Suppose Mr. Montalvo had decided on February 13th, before the detention hearing, that in fact he had already been held for as long as he could lawfully be held.

He could have moved in the district court for release at that point or, in the alternative, a prompt hearing immediately.

And because the statute provides a period of lawful, pretrial relief… pretrial detention prior to the holding of a hearing, which is confined to a period of three days or two days… excuse me… three days or five days, depending on who moves for the continuance, he might very well have been able to persuade the magistrate at that point that the government no longer had a right to detain him, absent a hearing.

So he would have been able to obtain either a hearing right then or release right then.

But once he’s past that, once he has failed to raise that point, and we are on into the detention period and we’re… well, a hearing has occurred, and he has been found to be detainable, then you can’t go back and say, well, he shouldn’t have been held for that period of time between the expiration of the period that the statute permits and the time that the detention hearing was actually held.

And because he shouldn’t have been held for that two or three-day period, he can’t be detained forever at… ever.

That the statute simply doesn’t suggest that that kind of remedy is appropriate, looking retrospectively for that kind of violation.

Is the only authority to hold the authority that’s set forth in the act?

William C. Bryson:

Well–

Does the court have some inherent authority to hold–

William C. Bryson:

–I think the court does have inherent authority, but the act provides a limitation on the period for normal court cases.

William C. Bryson:

There may be extraordinary cases in which a court can hold without proceeding under the act.

But normally, what the act provides is this is a period of lawful detention.

It doesn’t necessarily mean that anything beyond this is necessarily unlawful because they may be circumstances in which the inherent authority of the court comes into play.

In fact there’s a case–

–Well, but before there was statute, was the holding deemed to be by the sheriff or the United States Marshal, or was the holding… is the holding by the court?

William C. Bryson:

–No.

It would be under the authority of an arrest warrant, so it would be the… it would be the marshal who would hold the person but the authority would be granted by the arrest warrant under which the person was arrested.

And there would have to be, for example, a preliminary examination within a period of ten days if the individual was in custody.

And at the expiration of that period, a hearing would have to be held to determine probable cause.

But… what I think the statute does, to answer your question, is the statute provides for an area of lawfulness to hold, pending a hearing, but doesn’t necessarily mean that, in extraordinary circumstances, holding a person for some other purpose, may be unlawful.

This just gives us a safe ground for the–

If the power… if the inherent power is there anyway, why would you need a statute to provide for a period for when you’re going to be held?

William C. Bryson:

–Well, I think the inherent power really has to be limited to extraordinary cases.

The statute provides for the ordinary case in which a motion is made.

The extraordinary cases, let me point out, really, in the cases that come before the statute that are discussed in the Senate report on this… on this act, make the point that these are really are exceptional cases.

They are cases, for example, in which an individual has made very clear threats against witnesses, where the court simply has no other option but to hold the individual under the inherent authority of the court.

I’m not suggesting that in the ordinary run-of-the-mine case, the court can simply hold somebody in disregard of the limitations in the statute.

Ordinarily, the statute would provide the outer limit on the period that you could be held without a detention hearing.

But again, that does not mean that the remedy for holding longer than that period is that you automatically say no detention hearing can be held and no detention can be ordered.

Mr. Bryson, on this period when he should have made the motion, was that… what time is that in relation to this trip to Chicago?

William C. Bryson:

Well, he was sent to Chicago on the 8th.

He had his initial appearance in court in Chicago on the 10th.

So that if you regard that as being the initial… the initial appearance–

Didn’t you say the waiver–

William C. Bryson:

–and you say that his waiver was invalid at that point–

–He should have made the motion in Chicago?

William C. Bryson:

–He could have made a motion in Chicago for… he certainly could have requested an immediate hearing.

The government was prepared to give him a hearing right then and there.

But I mean–

William C. Bryson:

His counsel waived it.

–he wasn’t settled down.

He was in transit, wasn’t he?

He was… well, no, he was flown.

Sometimes they put them on the bus and it can take awhile.

He was actually flown back to New Mexico, and he got back that night.

So he was back in New Mexico on Friday night, on the 10th.

But I mean, I don’t think he should be responsible for the time that the government was carrying him around the country.

William C. Bryson:

Well, there wasn’t very much time following his–

That’s what I wanted to know, how much time?

William C. Bryson:

–his appearance.

Only a few hours.

He appeared in court on the afternoon of Friday, February 10th.

And he was back in New Mexico at about 11 o’clock that night.

So he was back the same day that he had his hearing.

Now, a weekend intervened, so it wasn’t until Monday morning that the government called the magistrate’s office and asked for a hearing.

Could he have made the motion the week before?

William C. Bryson:

I’m sorry, Your Honor.

Could he have made that motion the week while he was waiting to go to Chicago?

William C. Bryson:

Well, there were only two days; he was arrested on the 8th, and he was up in Chicago by the 10th and back on the 10th.

So there was really only a two-day period.

He could have asked at the time; he could have insisted on an initial appearance in New Mexico, I think.

He agreed instead to cooperate, but there’s no reason that he couldn’t have said, I’m not cooperating with you fellows.

I want to stay right here and have an initial appearance here.

But he didn’t.

He agreed to cooperate; he went to Chicago.

In Chicago he… his counsel, and the question of the validity of the waiver, of course, is… was not resolved by the court of appeals.

But his counsel sought to waive a detention hearing at that time, and that’s why it was agreed that he could go back to New Mexico.

Where, on the 13th, he was… the government made a request that a detention hearing be set, and the detention hearing was set for that… the next available date, which was the 16th.

Now, at that point, he might have said, stop, I want a detention hearing right now.

And if the magistrate in the district court had concluded that the time had already run or was running–

Well, who told him that?

Nobody told him that?

William C. Bryson:

–No.

No.

He retained counsel–

Well, was anybody required to tell him that?

William C. Bryson:

–No one was required to tell him that, Your Honor.

He retained counsel.

So that’s sort of a vague right, isn’t it?

William C. Bryson:

Well, there are lots of rights, as Your Honor well knows, that one can exercise more effectively with counsel than without.

He did hire counsel.

He was eligible to hire counsel.

And in fact, counsel was appointed for him in spite of the fact that he wasn’t eligible for appointment.

The district court magistrate appointed counsel in advance of the hearing.

He then retained counsel.

But that didn’t occur until the 16th.

He, for whatever reason, did not obtain counsel until then.

At that point, counsel sought to protect his rights.

But significantly, we believe, did not seek to do so by opposing the continuance that the magistrate granted.

Did he have retained counsel here and there?

William C. Bryson:

I’m sorry, Your Honor?

Did he have retained counsel?

William C. Bryson:

He did.

At the hearing he had both retained counsel and the counsel who had been appointed the previous day for him.

Retained counsel had only been retained that day, the day of the hearing.

Did he have retained counsel in Chicago?

William C. Bryson:

He had appointed counsel in Chicago, Your Honor… a public defender.

May I just ask you… on February 16th, when the hearing was first set, and they didn’t go ahead or… was that when it was set or when they agreed to have it four or five days later?

William C. Bryson:

Well, the hearing in New Mexico–

Yes.

When we’re back in New Mexico.

William C. Bryson:

–Let me back up and give the chronology because it gets a little bit complicated.

On the 13th, which is a Monday, the government asked for a hearing to be set.

But that was not in his presence?

William C. Bryson:

No.

That was a telephone call from the–

That was just between the Drug Enforcement agent and the magistrate?

William C. Bryson:

–Exactly.

And then on the 16th, that hearing was held.

That was a very brief hearing in which the magistrate, discovering that there had been no pretrial services report prepared, and that counsel had only been retained that day–

And the magistrate suggested we put it over until the 21st?

William C. Bryson:

–Kicked it over to the 21st.

Now, if on that date–

William C. Bryson:

Yes.

–he had said, I want a hearing now, would they have had to give him… either give him the hearing and let him go?

William C. Bryson:

Well, they would either have to give him a hearing or, I submit, the magistrate could have granted a continuance if the government, at that point, had moved for it because–

But they could not have granted a continuance for five days, if the government had asked for it.

William C. Bryson:

–Well–

And he went from the 16th to the 21st, and say the magistrate says, I cannot decide this until I get a report, which is up in Chicago or someplace, which cannot be produced until the 21st.

We’re just handcuffed until then.

Could he have insisted… would he have had a statutory right to release?

William C. Bryson:

–I think he would not because in… at that… at that point because… well–

Well, I thought you told Justice Blackmun he would, that that’s exactly the remedy.

William C. Bryson:

–Well… no, no.

He wouldn’t have the right to release.

It depends on whether you regard the initial appearance in Chicago as having been the first appearance that triggers the statute.

If you do, and if you further regard there as having been either no continuance granted at that time or a continuance on the motion of the government for five days, then yes, the answer to your question is yes.

On the 16th he would have been entitled to a hearing right now.

Now, what the magistrate could have done, of course, at that point under the statute, would be to have begun the hearing at that point and simply said, we will hear, we will begin the hearing and we will resume when we get–

And then he could continue the hearing for five days?

William C. Bryson:

–Well, there are… some of these hearings go on for quite a while.

And the statute provides–

And he couldn’t have demanded that the hearing be started and conducted continuously?

William C. Bryson:

–I think it’s bad practice, but the statute would not prohibit it.

I see.

William C. Bryson:

Also, Your Honor, there’s lots of room, you know, flexibility that the–

I’m trying to get… to think through your answer to Justice Blackmun that, really, there are lots of good remedies here.

It seems to me that there are lots of good ways to avoid letting him go.

Now, maybe that makes good sense and that’s–

William C. Bryson:

–That’s right.

There are a lot of ways which, if you play your cards right, you can extend the period of detention.

I think, ordinarily, people don’t do that, because people are trying to get these things decided very quickly.

But if you want to be cute about it, you can start… you can stop the time from running in a lot of ways, including simply making a finding of good cause for a long continuance.

If you start the hearing, you can have the hearing and then just simply take a long time to decide the question of detention.

He can be held during that period.

I think that’s not… that’s not consistent with the spirit of the act.

But to the technical legal answer to the question is yes, it could be done that way.

But we don’t typically do it that way.

There may be instances in which those kinds of instances, things have happened, but not simply in order to hold the person.

The… as I say, the purpose of this statute is not to serve the kinds of interests that a statute of limitations serves or Rule 4 of the Federal Rules of Appellate Procedure, or for that matter, 28 U.S.C. 2101 that governs the time for petitioning for certiorari in this case, all of which are statutes and rules that embody principles of repose.

In this case, what… the interest that’s really being protected by the time limits, as I say, is the interest in avoiding the temporary detention without due process.

Now, the–

–But under your view, Mr. Bryson, if a defendant is held beyond this time, that there is a violation of the first-appearance rule.

And it later turns out at a hearing he should have been held–

William C. Bryson:

–Right.

–he has suffered no injury.

William C. Bryson:

That’s right.

But if it turns out he shouldn’t have been held, then he has suffered injury.

He has been confined a certain number of days that he shouldn’t.

William C. Bryson:

That’s right.

And I take it, the government’s answer is there’s just no remedy for this.

William C. Bryson:

Well, it’s conceivable that he could have… assuming that he was confined by the government acting in clear violation of his constitutional rights, it’s conceivable that he might have a civil action.

And I think he… to be frank about it now, the… he would have some problems with immunity and so forth.

But it’s conceivable there could be a Bivins action, assuming that there is a constitutional violation in this interim period of holding.

But–

It would also be true if he were innocent, wouldn’t it?

William C. Bryson:

–Yes.

This has the ironic effect, of course, of saying that anyone who is not detained and, indeed, anybody who’s not detained and is subsequently vindicated in court, is the person without a remedy.

But of course, the remedy that is proposed here by Mr. Montalvo doesn’t help that person either.

Mr. Montalvo’s remedy only helps people like Mr. Montalvo, who in fact are found to be subject to detention.

So his remedy isn’t… in that respect, doesn’t help the non-detained person.

May I ask one other question about the sequence?

The magistrate… and am I correct, the magistrate originally determined that he should be released on bond?

William C. Bryson:

That’s right.

On the 21st.

And then there was a couple of days taken to take the matter to the district court.

William C. Bryson:

That’s correct.

Could he be detained during the twoday appeal to the district court?

William C. Bryson:

He can be and he was.

That’s right.

Lawfully, he can be detained during the appeal.

I see.

William C. Bryson:

This case, we think, to follow up on Justice Rehnquist’s question is, in a sense, like the Mechanik case decided by this Court relating to errors before the grand jury, where the… any error in the process leading to a finding of probable cause, is deemed to be harmless when it’s followed by a judgment of conviction.

Here, by the same token, the error in temporary detention is rendered, in a sense, harmless by the fact that he is later found to be detainable.

Even if a remedy would be appropriate in some instances, though, for cases in which somebody is held during this temporary period and is later held to be detained… even if there would be a remedy that would be… if the remedy of barring the government from ever obtaining detention would be appropriate in some instances, it’s not here.

First of all, there was no assertion by the defendant of his rights at any point in this process.

He didn’t object to the continuances.

He… and indeed he sought to waive objection in Chicago to the postponement of the hearing there.

And second, this is a case in which, as the district court found, and the district court made very thorough findings on these points, was a very strong case, both for detention and a very strong case on the merits of the case against him.

There… Mr. Montalvo had extremely strong ties to Mexico; he had lived there for two of the previous three years, as the district court found, and had a business… had two businesses down there which he had only recently sold.

William C. Bryson:

He had a house down there which he had recently sold.

But, Mr. Bryson, you talk about how the strong case is.

Apparently it didn’t persuade the magistrate.

William C. Bryson:

Well, it didn’t, but the hearing before the magistrate was extremely brief.

So I mean, we have to kind of assume it must be… reasonable judges could have decided it either way.

William C. Bryson:

Well, with all respect to the magistrate, I think the magistrate was way off base in this case.

And the district court essentially reached the same conclusion.

The magistrate… the presentation before the magistrate was extremely brief, and the presentation before the district court was much longer.

And before the district court, the district court concluded that, based on a lot of evidence, that this was an extremely strong case for detention.

And in fact there is… the argument in favor of becoming a fugitive, in this case, must have seemed to Mr. Montalvo, an extremely strong one.

He was facing ten years, minimum, in prison upon a case in which there was virtually no chance of acquittal.

The suppression motion would have been hopeless under the circumstances.

I wonder what he would have gotten if they’d delivered the drugs in Chicago.

William C. Bryson:

Well, the government would have been in the position to make a motion to reduce below the ten-year minimum for cooperation, and might well have done.

But that never happened.

In any event, this was a case in which if there ever is a case in which the remedy of precluding detention is appropriate, this is not that case.

Now, I would point out that the argument that’s being made on the other side, as I understand it, is essentially that the hearing time limits established, in essence, a condition precedent for detention.

But that argument is an extremely sweeping one.

If you say that any statute that says that something shall be done according to the following provisions, and that’s what this statute says, means that it may not, in any event… that the hearing is in this case… may not be held unless those procedures are followed, would suggest that all of the procedures that are found in Section F are conditions precedent to detention.

And yet there are a lot of procedures in which there may be a minor error here or there among the procedures in Subsection F, just as there are many provisions in Title 18, as to which there may be a minor error here and there without undercutting a defendant’s conviction.

Under Subsection F, there may be a variety of errors that could be made, none of which end up being prejudicial.

And you would not say that the hearing simply cannot be held or that the detention cannot be ordered because of those kinds of orders, assuming that you conclude that they really didn’t prejudice the defendant.

I’ll reserve the rest of my time.

Thank you, Mr. Bryson.

Mr. Panetta, we’ll hear now from you.

Bernard J. Panetta, II:

Mr. Chief Justice, and may it please the Court:

It is Respondent’s position that this statute, as a text, that the intent of Congress is manifest in the text of the statute, that the language is clear and unambiguous.

If the government had followed it in this case, we wouldn’t be here today.

And the problems that the government suggest arises, when the statute is not followed.

If this Court tells other courts, tells the government, tells defendants that the language is manifest… is mandatory, the problems won’t arise.

Bernard J. Panetta, II:

If the government in Chicago, at Mr. Montalvo’s initial appearance, had moved for a continuance, stating that it needed to remove Mr. Montalvo back to New Mexico, that more time than three days would have been required to hold the hearing, and the court there would have been satisfied that the government had established good cause, we wouldn’t be here.

The government did not choose to do that.

The government did not choose to bring Mr. Montalvo before a magistrate in New Mexico, which is probably the primary source of the confusion.

He’s arrested on the 8th; he is taken to the very building in Las Cruces where the magistrate’s courtroom is, to talk with the DEA for a period of time about his cooperation.

Is there a resident judge in Las Cruces at all times, Mr. Panetta?

Bernard J. Panetta, II:

The magistrate is a resident of Las Cruces and he is always there.

When the government needs to get a search warrant, it calls the magistrate’s office.

The magistrate makes himself available to sign those warrants.

So there is someone there that is available if the government requests that they be available and explains that there is a necessity for it.

If you want to ask the district court to review something… the magistrate’s… don’t you… what?

You go to Albuquerque?

Bernard J. Panetta, II:

Chief Judge Bratton used to live in Albuquerque.

He lives in Las Cruces, and he has moved back to Las Cruces.

So Chief Judge Bratton is available.

If it were an emergency, if the government needed to go before a district court judge, Chief Judge Bratton lives in Las Cruces.

In this instance, the government chose to take Mr. Montalvo to Chicago.

There’s no dispute that the government moved to detain him.

All they had to do at that time was say we need more time.

The government, to suggest that the burden should shift to Mr. Montalvo, to announce to the court that I need a swift hearing, seems to me to be a bit ludicrous in the sense that Mr. Montalvo is unrepresented, sitting in jail in Las Cruces, New Mexico.

Now, just exactly how was he supposed to notify the court that he is entitled to a speedy hearing?

Counsel was appointed finally on the 15th; our office is retained on the 16th.

The magistrate in Las Cruces and my office was unaware that the government had moved to detain Mr. Montalvo in Chicago.

We objected to the court holding any detention hearing at all because the government had not complied with the statute as far as we understood.

The United States attorney, there in court, never advised the court… never advised us that such was the case.

To suggest–

Mr. Panetta, what do you say to the government’s main argument?

I don’t think they’re contesting that they made a mistake here; that they didn’t follow the proper procedures.

But I think their basic argument is no harm, no foul.

That had there been a prompt hearing, the result of that hearing would have been exactly what happened anyway.

He was held.

So your client is now coming in and saying, oh, you know, I’ve been harmed because I’ve been held.

And the government is saying, even if you had gotten your hearing, you would have been held.

So what harm has been done to your client?

Bernard J. Panetta, II:

–Most respectfully, I don’t think that’s the issue at all, as to what harm was done.

The issue is whether or not, if you follow the government’s position, you’re telling Congress you’ve made mandatory language here.

We don’t have to follow it.

If you’re going to use a harmless error analysis, you’re telling Congress when you told us that the hearing had to be held at the initial appearance, you didn’t mean that because it doesn’t have to be held at the initial appearance.

You’re not seeking relief for your client?

You’re not seeking to get something for your client that he was entitled to?

You’re rather seeking just a rule that will cause the act to be enforced more rigorously?

Bernard J. Panetta, II:

If the act is enforced according to its plain meaning, my client has the relief that he requested.

He cannot be detained–

No.

Your client would have been in exactly the same position he’s in now.

He would have been… well, I mean except for the fact that he’s, you know, not been held.

But he would have been held.

Bernard J. Panetta, II:

–Had the facts changed and had the government had the hearing in a timely fashion, my client would have been held.

Right.

Bernard J. Panetta, II:

There are lots of other people though that have been held for a longer period of time that would not be held.

Well, what if the government knew it was violating the rule and just turned your client loose and then rearrested him in a couple of days?

Bernard J. Panetta, II:

If I understand your question, if the government… to dismiss the complaint–

I mean, if you want… you say he should be released?

Bernard J. Panetta, II:

–Yes, sir.

And forever?

Is he free of the charge that might have been brought against him?

Bernard J. Panetta, II:

I misspoke.

I am not saying that Mr. Montalvo should have been released.

What I am saying is, that he could not have been preventively detained.

The courts could have said, you have to remain in a halfway house, you have a curfew, you have a $100,000 bond.

Mr. Montalvo couldn’t make the bond; he has to stay in jail.

Bernard J. Panetta, II:

There are lots of conditions that the court could have set.

What I am saying is–

Well, what did the court do?

What did the court of appeals rule… what?

Bernard J. Panetta, II:

–The court of appeals ruled that because the government had not complied, Mr. Montalvo had to be released, if he could meet the conditions set by the district court.

The district court increased Mr. Montalvo’s bond from the $50,000 bond set by the magistrate to an $88,000 bond and imposed other conditions.

And if he could meet… comply with those conditions he was to be released.

The district court could have imposed other conditions.

Mr. Montalvo may not have been able to make the $88,000 bond.

In this case, he was able to meet the conditions set by the district court, and he was released.

Well, Mr. Panetta, you say that the statute ought to be enforced as it’s written, but it doesn’t provide what should be the remedy if the government doesn’t comply with the statute.

So… according has obviously got to contribute something to the solution.

Bernard J. Panetta, II:

I suggest that the remedy is implicit in the mandatory language, as we’ve tried to analogize to Rule 4 of the Appellate Rules of Procedure.

There’s no remedy if you’re untimely in filing your appeal.

You just can’t file the appeal.

Just as here, there’s no remedy, per se.

If the government doesn’t file timely, it cannot move to detain.

It’s not a question of remedy; it’s a question of meeting the requirements of the statute… just as it’s a question of meeting the requirements of Rule 4.

You can no longer move to retain without bond?

Bernard J. Panetta, II:

When?

Well, the [inaudible].

Bernard J. Panetta, II:

The government, in this case, since it did not comply with the statute, cannot move to detain without bond.

It can move to amend the conditions of release.

If Mr. Montalvo violates conditions of release, it can move to revoke.

But in this instance, it cannot.

In the removal cases, where–

It can move… it can say, we can’t move to hold without bond, but we can certainly ask for severe restraints if he’s released.

Bernard J. Panetta, II:

–It could have asked for more serious conditions.

That’s another point.

Mr. Bryson says, well, the magistrate conducted a very brief hearing.

Bernard J. Panetta, II:

Well, the magistrate wasn’t presenting the government’s case; the government was presenting its case as to what the facts were.

And if the government chose not to put on a strong enough case to detain Mr. Montalvo, that was the government’s choosing.

It wasn’t the magistrate that was presenting evidence at that hearing.

In cases that are cited in both briefs that talk about waiver and that talk about removal and talk about whether or not you have to move to detain in the district of arrest or in the charging district, if this court tells other courts that the language is mandatory and has to be followed, those problems no longer exist.

If he’s arrested in a district other than the charging district, the government moves to detain at the initial appearance and files a motion for a continuance beyond the three days for good cause, because he’s got to be removed.

If someone comes in… the government suggested you could sandbag a court.

And says, don’t worry, bond’s not an issue here; we’re not concerned about bond.

The government moves to detain, makes a proffer, as it can rightly do of what its evidence is.

If there’s no question about bond, the defense attorney doesn’t say anything, the magistrate finds that the statute has been complied with, the government has met his burden and the man is detained.

There’s no confusion, if the statute is read the way Congress has written it.

Well, it’s not clear to me the government is saying that this isn’t mandatory.

It’s just saying that there’s no remedy if the mandatory… that there’s no remedy of relief… release, if the mandatory provisions are violated.

If there’s refusal to hold a hearing, you go to a district judge, a circuit judge, get a writ of habeas corpus.

Tell the judges to follow the law.

Bernard J. Panetta, II:

What the government is saying, most respectfully, is that we don’t have to do what Congress said.

And when we don’t do what Congress said, say it’s harmless error and forgive us.

That’s what they’re saying.

But that’s different from saying the language is not mandatory.

The government’s… the judge, if he refuses to hold a hearing within the time prescribed is in violation of the statute.

Bernard J. Panetta, II:

He is.

But if the language is mandatory, there isn’t a remedy.

You cannot remedy an untimely hearing.

If the hearing hasn’t been held in a timely fashion, you cannot go back and hold it in a timely fashion.

If he didn’t have an attorney, one of the other things that they talk about in the statute… you can go back and give him an attorney and rehold the hearing.

But there’s no way to remedy the untimely hearing, just as if an appeal is filed out of time, as in Andre v. Guste, a case that we talk about where the petitioner filed a writ of habeas corpus, he did not appeal.

He then refiled the same writ and sought to appeal.

The Fifth Circuit said, you can’t get around the time requirements that way.

Time requirements in connection with an appeal have been construed by… excuse me, construed by the courts as “jurisdictional”.

There are an awful lot of other time requirements in the law that aren’t construed as jurisdictional.

That you have fallen short of a statutory standard, but the remedy is not necessarily that you simply evaporate into thin air.

Bernard J. Panetta, II:

You’re absolutely right.

Mr. Bryson informed me of a case that is not cited in his brief, which is Brock v. Pierce County, which had to do with some mandatory language to an agency’s secretary that you shall act on complaints involving CETA funds within 120 days.

And he didn’t act in 120 days.

And someone was saying… coming in and saying, well, you no longer have the power to act.

The language was shall.

This court said, well, that didn’t mean that he had to decide within the 120 days.

There, I think, there were a couple of differences.

In that statute there was no escape valve, if you will.

There was no excusable neglect like in the appellate statute.

There was no good cause like in our statute.

Also, in the legislative history of that act, when the sponsor of the bill was being questioned by one of the congressmen, he was asked, well, does this mean that the Secretary has to rule within that 120 days?

He said, no.

Here, I believe, the legislative history is clear.

The Congress had the District of Columbia’s preventive detention statute before it.

The preventive detention statute in the District of Columbia allows the government to move at any time to detain, not at an individual’s initial appearance but when the government believes it should move to detain.

The second part of that statute is the same as the one that we have here, that when they move to detain, the government may get a continuance of three days, the defendant of five or, if you can show good cause, a further amount of time.

Clearly, the Congress was aware of that statute and could have provided that the government could move to detain at any time.

It didn’t.

This Court, in Salerno, in upholding the constitutionality of this statute, looked to the protections that Congress had put in to find that preventive detention was constitutional.

This is one of the very protections.

If we say that it’s harmless not to abide by them, does that challenge the issue of whether or not it’s still constitutional, if you don’t have to comply with those conditions?

I don’t know.

Bernard J. Panetta, II:

But Congress had an opportunity to do otherwise; it chose not to do otherwise.

It seems if the government reads the clear language of the statute and complies with it, that this problem is not going to reoccur.

That the government can move to detain.

And if there are exceptional circumstances that arise that require the government to have more time, they can request more time.

The analogy, I think, to Rule 4 is an apt one.

I believe that the time limits within the statute are jurisdictional and mandatory and should be so held by this court.

To do otherwise, I believe, would be to eviscerate the clear language of the statute and to substitute this court’s view rather than the legislature, which has already spoken clearly and unambiguously.

If there are no further questions, I would respectfully request that this Court affirm the decision of the Tenth Circuit.

Thank you, Mr. Panetta.

Mr. Bryson, do you have rebuttal?

William C. Bryson:

Only a couple of points, Your Honor.

First, I think the closest analogy to the case of a statute or rule that has mandatory language that does not typically result in any sanctions or any remedy that results in disabling the government from proceeding, is the initial appearance rule which is closely related to the pretrial detention rule, and that’s Rule 5 which says that someone shall be taken to a magistrate upon arrest without unnecessary delay.

Assume that there isn’t a statement which is taken from the individual and subject to suppression during the period of unnecessary delay… the mere fact of delay has never been held or thought to result in the dismissal of the proceedings against the defendant.

It… and yet I think it’s interesting to note that in fact, despite the absence of any remedy, compliance with this statute, with this… excuse me, with this rule, is quite good.

I mean, the agents are trained and they do follow their training to bring people before magistrates without unnecessary delay.

There are exceptional cases and, indeed, this one may be one in which, shortly after arrest, there’s an agreement to cooperate, but… in which the appearance does not occur immediately.

But typically it occurs within a matter of hours.

The second point is that… it’s important to keep in mind, I think, when you look at the argument made by Respondent with respect to the contention that the… it’s no real harm to the government to be put back in the position of simply having to ask for conditions on release.

Because, after all, that was the system before 1984.

But there’s been a very big and important change in this statute from the pre-1984 system.

What Congress did in ’84 was to make essentially a bargain in favor of candor and fairness.

And the bargain was this: there would be a pretrial detention provision in which pretrial detention could be ordered directly, candidly; where this is what we’re doing.

But there was a provision that said, you cannot hold somebody on unrealistically high bail.

If you’re going to set bail, it’s got to be bail that that person can meet.

That’s the reason that bail in this case, when it way set, was set at $88,000 instead of half a million.

If it had been under the old system, it would have been simple.

They wouldn’t have had a hearing at all, or not much of one.

Well, is it a requirement now that if bail is set it must be bail that the defendant can meet?

William C. Bryson:

Exactly.

That’s 3142(c)(2), Your Honor.

Well, that’s a dramatic change.

William C. Bryson:

It’s a huge change.

And what it means is, people like Mr. Montalvo, who somehow manage to avoid the detention statute, even though they should be detained, are given a free pass.

Under the old statute, bail would have been set at a very high level, and he would never have gotten out.

xxx $88,000–

–That’s not free… I mean, $88,000.

William C. Bryson:

Well, it’s not free, but if he is in fact carrying a million dollars of cocaine… but he’s carrying a million dollars of cocaine, I submit that he probably has access to $88,000.

And if he’s facing ten years in jail, he may well think the bargain is well worth it.

William C. Bryson:

He certainly did in this case, for all that appears.

Thank you.

William H. Rehnquist:

Thank you.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.