
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          January 12, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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                                         -2-            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,                                         -3-            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                                         -4-            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                                         -5-            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.                                         -10-                           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                                         -11-            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,                                         -13-            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-
