U.S. v. Pasciuti
Case Date: 03/19/1992
Docket No: 92-1112
|
March 19, 1992 [NOT FOR PUBLICATION] ___________________ No. 92-1112 UNITED STATES, Appellee, v. JOHN R. PASCIUTI, Defendant, Appellant. __________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Norman H. Stahl, U.S. District Judge] ___________________ ___________________ Before Breyer, Chief Judge ___________ Torruella and Selya, Circuit Judges. ______________ ___________________ Kenneth D. Murphy and Casassa & Ryan on brief for appellant. _________________ ______________ Jeffrey R. Howard, United States Attorney, and Peter E. ___________________ ________ Papps, Assistant United States Attorney, on brief or appellee. _____ __________________ __________________ Per Curiam. Appellant appeals from a detention order. He __________ challenges the district court's delay in reviewing the magistrates's detention order, the use of hearsay evidence coupled with the court's refusal to subpoena a witness, and the court's determination that no set of conditions would reasonably assure the safety of the community. I A September 27, 1991 indictment charged defendant with conspiracy to distribute methampetamines, 21 U.S.C. 846, and conspiracy to provide a felon with ready access to firearms, 18 U.S.C. 371, 922(g)(1). On October 15, 1991, bail was set at $10,000. The release order directed defendant not to commit any offense while on release and to refrain from possessing a firearm or controlled substance. Two weeks later, the district court was informed that, since his release, defendant had been arrested for disorderly conduct, possession of a dangerous weapon, and possession of a hypodermic needle and syringe. A magistrate revoked bail on November 7, 1991. Defendant sought district court review of that order on November 19, 1991 and requested a hearing. On January 7, 1992, defendant filed a notice for immediate release contending that as 50 days had passed since he requested review of the magistrate's order without the court having acted, defendant had been deprived of his right under 18 U.S.C. 3145(b) to prompt review of a detention order and -2- 2 consequently was entitled to release. The district court denied immediate release and scheduled a hearing. A hearing took place on January 14, 1992. The government introduced police reports of defendant's arrests since release. According to a report filed by Officer Roper of the Lowell Police Department, at approximately 9:00 p.m. on October 19 (several days after defendant had been released on bail), defendant's vehicle had been blocking the entrance to a street. Officer Roper stated in the report that he identified himself as a police officer and asked defendant to move his vehicle. Defendant responded with obscene and abusive language. When he persisted in an abusive and aggressive manner, he was arrested. Defendant's second arrest was described in a detailed report of the arresting officer, state trooper Driscoll. According to the report, Trooper Driscoll observed a pick up truck with defective rear tail light travelling on Route 128. Trooper Driscoll activated his blue lights, then his siren. The passenger (defendant) turned and looked at the police car, but the truck continued three quarters of a mile before stopping. Upon approaching the vehicle, Driscoll noticed that the passenger was sweating heavily and moving his legs against the seat. Questioned about the movement, defendant said he had spilled tonic and was wiping it up. Trooper Driscoll shone his flash light, saw no wetness, told defendant to exit and wait next to the guard rail, felt the floor and ascertained it was dry, reached under the passenger seat, and retrieved a velvet bag -3- 3 containing a fully loaded .22 caliber revolver. A second officer, Officer Devlin, arrived on the scene, removed the operator from the truck, brought him to the rear, handcuffed him, and then placed him in the cruiser. While the operator was being handcuffed, Driscoll found a hypodermic syringe/needle at defendant's feet. Both defendant and the driver were subsequently charged with possession of a dangerous weapon (handgun) without a license, Mass. G. L. ch. 269, 10, and unlawful possession of a hypodermic needle and syringe, Mass. G. L. ch. 94C, 27. The weapon offense is a felony under state law. Mass. G. L. ch. 274, 1 (crime punishable by imprisonment in the state prison is a felony). In addition to the police reports, the government presented the testimony of Agent Granatino of the Bureau of Alcohol, Tobacco, and Firearms. He had no personal knowledge of the events surrounding the October arrests, but, based on his review of the police reports and conversation with other officers, reiterated much of what was in the reports. He also described two other arrests of defendant. Again, his information was not based on personal knowledge, but rather on reports and conversation with other officers. In August 1989, he said, defendant had been stopped in New York driving a pick up truck with a cracked windshield. Defendant consented to a search of the truck. The search uncovered over an ounce of methamphetamine and five fully loaded handguns. Two of the guns had been reported stolen in New Hampshire, one was not traced, and two -4- 4 others were owned by George Caruso, a member of Hell's Angels, Lowell Chapter, a club of which defendant was an associate. In January 1990, defendant had been stopped in New Hampshire. His driving license had been suspended at the time. As defendant exited the vehicle, a hunting knife fell to the ground. The sheath of the knife was taped to the steering wheel. Defendant was fined $100 for driving without a license. The charge concerning the knife was filed without a finding. Defendant did not testify, but did submit an affidavit. Therein he admitted having sworn at the person who had asked him to move his vehicle on October 19, 1991, but denied knowing that the requester was a police officer. With respect to the October 29, 1991 incident, he started in part as follows: When we were stopped we were immediately ordered out of the truck immediately. I was told to sit on a guardrail. While I was on the guardrail a gun was found in a Crown Royal bag under the seat. I have no knowledge of how the gun was put into the truck, and I have not ever possessed the gun or the needle. Trooper Driscoll, upon finding the gun, stated: "What the hell is this - you could've blown me away!" I denied any knowledge of the gun, and I showed the Trooper the Coke can which I had put on the floor when he said that I was moving underneath the seat. The Trooper pointed the gun at me. The Trooper then began waving the gun towards traffic and had to be physically restrained by another Trooper. Defendant asked to subpoena Trooper Driscoll, but the -5- 5 district court denied the request.1 The district court upheld the magistrate's order revoking release. Defendant has now appealed. II Defendant first argues that the 59 day delay between defendant's November 19, 1991 motion to review the revocation order and the district court's January 17, 1992 order upholding revocation violates 3145(b)'s command that defendant's motion "shall be determined promptly." 18 U.S.C. 3145(b). The delay, defendant contends, entitles him to release. We disagree. United States v. Montalvo-Murillo, 110 S. Ct. 2072 _____________ ________________ (1990), is instructive. There, contrary to 18 U.S.C. 3142(f)'s direction (1) that a hearing "shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the government, seeks a continuance," and (2) that, except for good cause, continuances not exceed five (if requested by defendant) or three (if requested by the government) days, the first appearance requirement and time limits had not been honored. While acknowledging that the time limits were important to protect the liberty interest at stake, the Court nevertheless concluded that release was not mandated when a time limit was violated: ____________________ 1. Initially, in his motion to the district court seeking review of the magistrate's revocation order, defendant had asked to subpoena Trooper Driscoll or, alternatively, to be permitted to supplement the record with affidavits, documentory evidence, and oral argument. At the hearing, defendant asked that Driscoll be subpoenaed. -6- 6 Neither the timing requirements nor any other part of the act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained. Montalvo-Murillo, 110 S. Ct. at 2077. ________________ To be sure, the present case deals with the prompt review provision, 18 U.S.C. 3145, rather than the prompt initial hearing provisions. A prime objective of both, however, is expeditious resolution of bail matters so that a defendant not be improperly detained. Just as a timeliness violation at the initial stage does not mandate release, even less should a delay in the review process -- after a defendant has received some procedural protection in the form of a hearing and a decision from one judicial officer -- necessarily require release. Consequently, we reject defendant's contention that release is the automatically mandated remedy for any violation of 3145(b)'s prompt review directive. Nor do we think that the particular circumstances of this case required release as a remedy. The delay in ruling on defendant's motion was inadvertent, the district court explained. Defendant's motion, one of many in the onslaught of motions filed by the 13 indicted defendants, did not come to the judges's attention until defendant filed his motion for immediate release. At that point, the court scheduled a hearing (within a week) and expeditiously ruled, upholding the magistrate's detention order. A mere phone call, the judge suggested, inquiring why the motion for review had not been acted upon, likely would have brought the -7- 7 motion to the fore and substantially lessened the delay. This is not a case of repeated protracted delay once the oversight was brought to the court's attention, and we conclude that a release order is not warranted as a remedy. III Defendant contends the evidence was insufficient to warrant detention. In so arguing, he faults the court's refusal to subpoena Trooper Driscoll. We will deal with these arguments together, but first it is useful to review the relevant statutory provisions. A Section 3148 of title 18 governs revocation of release orders. It provides in material part as follows: The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer- (1) finds that there is- (A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or (B) clear and convincing evidence that the person has violated any other condition of his release; and (2) finds that- (A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or (B) the person is unlikely to abide by any condition or combination of conditions of release. -8- 8 If there is probable cause to believe that, while on release, the person committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the commun |