
USCA1 Opinion

	




          March 19, 1992        [NOT FOR PUBLICATION]                                 ___________________          No. 92-1112                                                UNITED STATES,                        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 communÿÿÿÿÿÿÿty.                 If  the  judicial  officer  finds  that  there  are                 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, and that the                 person will abide by such conditions, the  judicial                 officer shall  treat the person in  accordance with                 the provisions of Section 3142 of the title and may                 amend the conditions of release accordingly.                      The  district  court   concluded  from  the  evidence          concerning defendant's fidgeting  with his feet when  stopped and          the  absence  of  any wetness  where  defendant  claimed to  have          spilled a soda that there was probable cause to believe defendant          knowingly had the  unlicensed firearm found under  his seat under          his control.  As possession  of an unlicensed firearm is a  state          felony,    3148's rebuttable  presumption became operative.   The          court concluded that defendant had  not overcome the force of the          presumption, explaining as follows:                 [Defendant's]  knowingly   having  an   unlicensed,                 loaded,  firearm  under his  control  in  a vehicle                 thirteen days  after having  been granted  pretrial                 release  conditioned upon  his  not possessing  any                 firearms, and  his record  of allegedly  possessing                 unlicensed,  loaded  firearms   indicates  that  no                 condition or combination  of conditions will assure                 that he will not pose a danger to the safety of any                 other person or the community.                                          B                       Defendant's attacks are threefold.  First, he claims          that  the government's  heevidence  was  too unreliable  to          establish probable cause or to show that no condition will assure          the safety of the community.  Second, he argues that even  if the                                         -9-                                          9          government's  hearsay   evidence  was  sufficient   to  establish          probable cause  and trigger the statutory  presumption, defendant          nevertheless  should  have  been permitted  to  subpoena  Trooper          Driscoll in order to challenge the government's  showing.  Third,          he  contends that  he  did adequately  rebut  the presumption  of          dangerousness  and  that  detention  is  not  warranted   because          conditions  do exist which  will reasonably assure  the safety of          the community.  We deal with each in turn.                      1.  Government's use of hearsay.                      Defendant  did not  object to  the  admission of  the          police  reports,  and  he acknowledges  that  the  government may          utilize reliable hearsay at detention hearings.  United States v.                                                           _____________          Acevedo-Ramos,  755 F.2d 203,  204, 206  (1st Cir.  1985) ("[T]he          _____________          lawfulness of .  . . . using hearsay evidence at bail hearings is          well  established.   Nothing in  the new  Act forbids the  use of          hearsay, where reliable."); 18 U.S.C.   3142(f) (rules concerning          admissibility  of evidence  in criminal  trials do  not apply  to          detention hearings).  But, defendant says, he has challenged  the          accuracy and reliability of Trooper Driscoll's reports.  In these          circumstances, defendant  argues, the government  was required to          produce Trooper Driscoll's live testimony.  In support, defendant          relies on the following passage from Acevedo-Ramos:                                               _____________                      [T]he  magistrate   or  judge   possesses                      adequate power to reconcile the competing                      demands of speed  and of reliability,  by                      selectively insisting upon the production                      of  underlying  evidence  or  evidentiary                      sources  where   their  accuracy   is  in                               ________________________________                      question.   Through sensible  exercise of                      ________                      this  power  of selection,  the  judicial                                         -10-                                          10                      officer can  make meaningful  defendant's                      right     to     cross-examine    without                      unnecessarily   transforming   the   bail                      hearing  into  a  full-fledged  trial  or                      defendant's     discovery     expedition.                      (Emphasis added.)          Acevedo-Ramos, 755 F.2d at 207-08.          _____________                      Defendant claims that Trooper Driscoll's testimony is          needed  because inconsistences between a two page report Driscoll          had first filed and  a 13 page one furnished to  defendant on the          day of the district court  hearing undermined the reliability  of          the  reports.    The supposed  inconsistency  to  which defendant          points does not exist.  In the first report, Driscoll stated that          while talking with the driver, Driscoll noticed defendant "moving                                 ______          underneath the seat."  A sentence in the later report states that          when  Driscoll went  to  the  passenger  (defendant's)  side,  he                                        _________          "observed the passenger to be moving his legs against the seat."           Several  sentences earlier, however,  Driscoll had indicated that          while on the driver's side he first noticed defendant's movement.                       ________          The  reports are basically consistent.2 Defendant's quibbles with          language did  not undermined  the reports' reliability  requiring          that Driscoll be produced as a witness.                       We  conclude that  the government's  hearsay evidence          was sufficiently reliable  and supported  the  finding that there                                            ____________________            2.  We do  not deny  that there are  some ambiguities  in the            reports.  For example, the  first, terse report could be read            as saying that Driscoll observed defendant reaching under the            seat, while  the second  report describes kicking  movements,            the upshot being that any  "reaching" apparently was with the            feet, rather than the arms.                                         -11-                                          11          was probable  cause to believe  defendant had committed  a felony          while on pre-trial release.                      2.  District court's denial of defendant's request to                       subpoena Driscoll.                      Section 3142(f) of title 18 states that at a           detention hearing the defendant                      shall  be  afforded   an  opportunity  to                      testify, to present  witnesses, to cross-                      examine  witnesses  who   appear  at  the                      hearing,  and to  present information  by                      proffer or otherwise.          Invoking this section  as well as a  claimed constitutional right          to  confront witnesses at a detention hearing, defendant contends          he  should  have  been permitted  to  subpoena  Trooper Driscoll.          Given  the  opportunity,  defendant  says  he  would  have  asked          Driscoll  the following: (1) why a fingerprint analysis defendant          had  requested had  not been  performed  on the  weapon; (2)  the          reason for  the initial stop  of the truck; (3)  whether Driscoll          had pointed his  gun and had had  to be restrained as  claimed in          defendant's   affidavit;   and  (4)   the   general  circumstance          surrounding the  charges such as  the location of the  weapon and          needle.                      Courts  have concluded that district courts have much          discretion  in  determining  whether  a  bail  hearing  shall  be          conducted by  proffer or  live testimony  and  have rejected  the          contention  that either the constitution or   3142(f) necessarily          requires that live  witnesses be produced at  detention hearings.          See United States  v. Cardenas, 784 F.2d 937, 938 (9th Cir. 1986)          ___ _____________     ________                                         -12-                                          12          (rejecting contention that due process  requires a defendant at a          detention hearing to be afforded the right to confront and cross-          examine  witnesses; government  may proceed  by proffer);  United                                                                     ______          States  v.  Hurtado,  779  F.2d 1467,  1479-80  (11th  Cir. 1985)          ______      _______          (judicial  officer has discretion  to prevent  detention hearings          from becoming  full-blown trials, but  should exercise discretion          with recognition that pretrial detention may restrict liberty for          a  significant time);  United States  v. Delker,  757 F.2d  1390,                                 _____________     ______          1395-98 (3d Cir. 1985) (rejecting contention that   3142(f) gives          to  defendants  the  choice  whether to  proceed  by  proffer  or          witnesses  and concluding instead  both that the  section confers          discretion on the district court to choose the mode of proceeding          and that due  process does not preclude using  hearsay or mandate          subpoenaing witness  whose out-of-court  statements  are used  to          link defendant to criminal offenses).                       We need  not  now  probe  the  precise  limits  of  a          district  court's discretion,  for  we  conclude  that  the  four          reasons  defendant  stated   for  subpoenaing  Driscoll  are   so          insubstantial that, even  giving a fairly   circumscribed view to          the district  court's  discretion,  we  would find  no  abuse  of          discretion.                        The  first  question  defendant would  have  posed to          Driscoll --  why the gun  had not been tested  for fingerprints--          was answered.   The district attorney had decided,  as a tactical          matter,  not  to  perform  a  fingerprint  analysis.    Defendant          exploited the lack of fingerprints at  the hearing.  He does  not                                         -13-                                          13          now  argue that he  is entitled as  a matter  of law to  have the          government test the weapon for  fingerprints or show any need for          Driscoll's testimony in this regard.                      Defendant's  second reason,  his  desire to  question          Driscoll concerning the  true reason for the initial  stop of the          pick  up  truck,  similarly  did  not require  that  Driscoll  be          subpoenaed.   Defendant contends  that the stated  reason in  the          police reports for the stop -- defective left  rear tail light --          was not the real  motivation for the stop since  the operator was          not  charged  with  any  offense  relating  to  the  tail  light.          Defendant thinks  the  real  reason  the truck  was  stopped  was          because it had a Hells Angels sticker on it.                      As long  as there is a  valid reason for a  stop, the          officer's subjective motivation is irrelevant.  See, e.g., United                                                          ___  ____  ______          States v. Pringle, 751 F.2d  419, 425 (1st Cir. 1984) (motivation          ______    _______          for  boarding is  irrelevant; the  test  is whether  an objective          basis existed).   Defendant has  not claimed that he  expected to          prove through Driscoll that there was no defective tail light and          no basis for a stop.  Rather, defendant's inquiry appears to have          been  directed at  uncovering  Driscoll's thought  processes,  an          irrelevant   matter.  Regardless,  however,  the  court  was  not          required to  turn the  bail revocation hearing  into a  motion to          suppress hearing.  See United States v. Winsor, 785 F.2d 755, 756                             ___ _____________    ______          (9th Cir. 1986) (upholding court's refusal  to allow defendant to          cross-exam government investigators  and police officers for  the          purposes  of  showing  lack  of   probable  cause  to  arrest  or                                         -14-                                          14          likelihood of success  on a suppression motion  where defendant's          proffer  did   not  indicate  that  the   government's  proffered          information was incorrect).                      The third reason -- Driscoll's alleged misbehavior in          pointing his  gun --  is irrelevant  to  the bail  determination.          Whether or  not Driscoll overreacted  after he found a  gun under          the  seat occupied  by defendant  does  not bear  on the  central          issues in dispute  at the revocation hearing --  the existence of          probable cause to  believe defendant had  committed a felony  and          defendant's dangerousness.                      The last  reason stated  for calling  Driscoll --  to          question him concerning the general circumstances surrounding the          charges such as  the location of the  gun and needle --  fails in          the  circumstance  of  this  case.   With  respect  to  the  gun,          defendant does not deny that Driscoll recovered it from under the          passenger  seat.   Rather,  he contends  he did  not know  it was          there.    But,   defendant  has  failed  to   describe  with  any          particularity what  useful information  he could  hope to  elicit          from Trooper Driscoll  bearing on defendant's knowledge.   United                                                                     ______          States v.  Accetturo, 783 F.2d  382, 388-89 (3d Cir.  1986) (even          ______     _________          though  defendants  had   tendered  evidence  showing   witness's          unreliability (drug addiction, criminal and psychiatric history),          court  did  not  abuse  its  discretion  in  refusing  to  compel          appearance  of that  witness, who  was  the government's  primary          source of information,  where there was no reason  to believe the                                         -15-                                          15          witness would either  provide evidence favorable to  defendant or          retract harmful evidence).                      The needle may  present a different case.   According          to the judge's  description of the evidence taken  at the hearing          before the magistrate (we have not been  furnished with a copy of          that tape), there  was evidence that the needle  was found on the          ground  between where  defendant and  the  driver were  standing.                  _______          Driscoll's  report, in  contrast, much  more  closely linked  the          needle to  defendant, for it  said the needle was  at defendant's          feet.   Had the  needle charge  been the  basis for  the probable          cause  and  dangerousness  findings,  then,   perhaps,  we  would          conclude that defendant  should have been afforded more leeway to          inquire  into the  location of  the needle  vis a  vis where  the          operator  and  defendant  had been  standing.    But  the court's          finding of dangerousness,  as explained  in the  passage we  have          quoted  at page  10 of  this  opinion, was  based on  defendant's          involvement  with firearms.    As we  read  the district  court's          opinion,  regardless whether  or not probable  cause   existed to          believe  that it  was  defendant who  possessed  the syringe  and          needle,  the district court's  revocation order would  remain the          same.   In  these circumstances,  then, any  error  in precluding          defendant from  questioning Driscoll  concerning the location  of          the needle was harmless.                      3.  Sufficiency of evidence supporting a detention             order.                                         -16-                                          16                      Defendant   next   argues   that  the   evidence   is          insufficient  to establish  that no  conditions  of release  will          adequately safeguard the community.                      This court's review of the district court's order "is          not de novo, but,  rather, independent, 'giving deference to  the              __ ____          determination   of  the  district  court.'"    United  States  v.                                                         ______________          Patriarca, 948 F.2d 789, 791 (1st Cir. 1991).          _________                      We  have concluded that there was probable cause that          defendant committed a felony while on release, namely, possession          of  a  firearm  without  a  license.   Consequently,       3148's          rebuttable  presumption  -- "that no  condition or combination of          conditions will assure that [defendant] will not pose a danger to          the  safety of  ... the  community" --  is operative.   Like  the          rebuttable  presumption addressed in United States v. Jessup, 757                                               _____________    ______          F.2d 378 (1st Cir. 1985),  this presumption, we believe, does not          disappear,  but rather  retains evidentiary  force  even after  a          defendant has met his burden of producing some rebuttal evidence.                      Here,  defendant  did present  some  evidence  -- his          affidavit claiming, among other things, that he had not possessed          the gun  --  and  arguments why  he  should not  be  regarded  as          dangerous.  He  maintained that there was no  evidence of violent          character, violent crimes, or actual use of a firearm.   At most,          the record  showed that on  two occasions --  once pre-indictment          (New York) and once subsequently (October)  -- defendant had been          in  a  vehicle which  contained  weapons.    This simply  was  an                                         -17-                                          17          insufficient  basis  upon  which to  conclude  that  defendant is          dangerous, defendant argues.                        We  disagree   and  endorse   the  district   court's          reasoning.  The evidence that, so soon after having been released          on condition that he  not possess a firearm, defendant  knowingly          possessed  one  manifests  disdain  for  the  court's  order  and          society's  rules.  In  stressing the lack  of evidence concerning          actual violence  or actual use of a weapon, defendant seems to be          suggesting that by danger to the community,   3148 means physical          danger to one  or more persons.   The statute is not  so limited.          Rather, as the legislative history  indicates, continued criminal          behavior is also a danger   3148 is aimed against:                      The commission  of a serious  crime by  a                      released person is  plainly indicative of                      his  inability to  conform to one  of the                      most  basic  conditions of  his  release,                      i.e. that he abide by the law, and of the                      danger he poses to other persons  and the                      community,  factors  which  section  3148                      recognizes are appropriate  bases for the                      revocation  of  release.     Nonetheless,                      there may be  cases in which  a defendant                      may be able to demonstrate that, although                      there is  probable cause to  believe that                      he has committed a serious crime while on                      release, the  nature or  circumstances of                      the  crime are  such  that revocation  of                      release is not  appropriate.  Thus, while                      the  Committee  is   of  the  view   that                      commission of a felony during the  period                      of release generally should result in the                      revocation  of the  person's release,  it                      concluded that  the defendant  should not                      be  foreclosed  from the  opportunity  to                      present to the  court evidence indicating                      that  this   sanction  is   not  merited.                      However,  the  establishment  of probable                      cause to believe  that the defendant  has                      committed  a   serious  crime   while  on                      release  constitutes compelling  evidence                                         -18-                                          18                      that the  defendant poses a danger to the                      community, and, once  such probable cause                      is  established, it  is appropriate  that                      the burden rest on the defendant to  come                      forward  with  evidence  indicating  that                      this conclusion  is not warranted  in his                      case.    Therefore,   the  Committee  has                      provided in section 3148(b) that if there                      is  probable cause  to  believe that  the                      person has committed a Federal, State, or                      local   felony   while  on   release,   a                      rebuttable  presumption  arises  that  no                      condition  or  combination  of conditions                      will assure that the person will not pose                      a danger to safety of any other person or                      the community.          Senate Report No. 98-225,  98th Cong., 2d Sess. 35-36,  reprinted                                                                  _________          in 1984 U.S. Code Cong. & Ad. News 3182, 3218-19.           __                      Remaining   is  the   question  whether   "there  are          conditions of release that will  assure that [defendant] will not          . . .  pose a danger  to the safety of  . . . the  community, and          that  [defendant]  will  abide  by  such  conditions  .  .  .  ."          Defendant states that he is  willing to submit to random searches          and  monitoring.  Defendant has not  spelled out what he means by          electronic monitoring.  If he means that he should be allowed out          into community,  but restricted to a fairly small geographic area          such  as,  for example,  the city  of his  residence, defendant's          argument is not be very  compelling, for such a restriction would          not prevent defendant  from continued criminal behavior.   If, on          the other hand,  defendant means he is willing  to submit to home          confinement,  defendant's  argument  may  conceivably  have  more          force.   To  be  sure  there are  circumstances  where even  home          confinement  is  inadequate  to safeguard  the  community against          continued  criminal behavior  because defendant  may  be able  to                                         -19-                                          19          continue his  criminal activities  from home.   United  States v.                                                          ______________          Tortora,  922 F.2d  880, 894  (1st Cir.  1990) (not  apparent how          _______          conditions, including home  confinement, would prevent  defendant          from planning with others to silence witnesses).  Whether this is          the  case  was  not developed  below.    Furthermore,  the record          contains no information concerning the availability of  effective          home confinement monitoring systems.  See United States v. Perez-                                                ___ _____________    ______          Franco,  839 F.2d 867,  870 (1st Cir.  1988) (no  evidence that a          ______          home  confinement monitoring  bracelet  is  readily available  or          workable).   Neither  the  defendant,  the  government,  nor  the          district  court  addressed   the  feasibility,   burden  on   the          government, or advantages and disadvantages of  home confinement,          and, on this record, where we are not even sure whether defendant          is  suggesting home  confinement as  an alternative, we  will not          attempt to do  so.  Rather, we  will affirm the  detention order,          but without prejudice to defendant's elaborating, in the district          court, upon his proposal for electronic monitoring.                      Affirmed.                      ________                                         -20-                                          20
