
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                 ____________________        No. 94-2085        No. 94-2086                                     UNITED STATES,                                      Appellee,                                          v.                                   ROBERT M. JOOST,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                       [Hon. Mary M. Lisi, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Robert Joost on Memorandum pro se.            ____________            Sheldon  Whitehouse, United  States Attorney, James  H. Leavey and            ___________________                           ________________        Margaret E. Curran,  Assistant United States Attorneys,  on Memorandum        __________________        for appellee.                                  ____________________                                  November 30, 1994                                 ____________________                 Per  Curiam.  Defendant Robert Joost, who has elected to                 ___________            proceed pro se, appeals from  an order of pretrial detention.            The  magistrate-judge  and  the   district  judge,  following            separate  hearings,  each  found  by  clear  and   convincing            evidence  that  detention  was  required  on  the  ground  of            dangerousness.  See 18 U.S.C.   3142(e).  Having conducted an                            ___            independent review tempered by deference to the lower court's            determination,  see, e.g., United States v. O'Brien, 895 F.2d                            ___  ____  _____________    _______            810, 814 (1st Cir. 1990), we affirm.                                           I.                 Except   where  noted,   the   following  facts   appear            undisputed based on  those portions of  the record that  have            been  presented.1   On  August  3,  1994, an  indictment  was            returned in  Rhode Island charging defendant  with conspiracy            to  rob an  armored car,  in violation of  the Hobbs  Act, 18            U.S.C.   1951, and with possession of firearms by a convicted            felon,  in violation  of  18 U.S.C.     922(g).   Immediately            following defendant's arraignment on August 5, the magistrate            conducted   a  detention  hearing  and  ordered  that  he  be            detained;  a  written  order  explicating  the   magistrate's            reasoning  was  filed on  August  23.   By  way  of a  motion            apparently submitted on August 22, defendant sought review of                                            ____________________            1.  The  record before  us does  not  contain a  copy of  the            indictment  or the transcripts  from the two  hearings below.            We  are nonetheless obligated to decide the appeal "promptly"            on the basis of "such papers, affidavits, and portions of the            record as the parties shall present."  Fed. R. App. P. 9(a).                                         -2-            this   ruling.2    The  district  judge  held  a  hearing  on            September 29  and issued a  written decision four  days later            affirming  the detention  order.  Defendant  has now  filed a            pair of appeals challenging this determination.                 Both  below and  on appeal,  the  government has  placed            principal  reliance on  an August  4, 1994  affidavit  by FBI            Special Agent Brosnan detailing the events giving rise to the            instant charges.   Brosnan,  in turn,  relies principally  on            statements made to him by two state police detectives who had            successfully  infiltrated  defendant's  operation.    Several            discrete incidents are described in which defendant allegedly            plotted criminal  activities with  the undercover  detectives            and others.  One of these involved a planned armed robbery of            an armored car expected to be carrying "possibly  millions of            dollars  in gold."   Some  months before  the robbery  was to            occur, it is averred that defendant and  the detectives spent            four  hours in  June  1994  conducting  surveillance  of  the            armored car company.  The preparations included  instructions            from defendant to  the detectives to handcuff the  guards and            tape their mouths shut; if  any of the guards caused trouble,            they were told  "to kill [him] with a firearm equipped with a            silencer."   These allegations form  the basis for  the Hobbs            Act charge.                                            ____________________            2.  As explained infra,  the question as to  when this motion                             _____            was filed is not free of ambiguity.                                          -3-                 In another such  incident that same month,  defendant is            said  to have  given a  loaded semi-automatic  pistol to  the            detectives for  use in  a planned robbery  of "an  armed club            manager  in  Cape Cod."    He  instructed the  detectives  to            dispose of  the gun "if  they had  to shoot the  manager" but            otherwise to return it.  These allegations form the basis for            the  felon-in-possession   charge.    In   addition,  Brosnan            recounts  the  detectives'  description  of  other   criminal            conduct not  contained in  the instant  indictment--including            counterfeiting activities  and  the planned  robberies  of  a            delivery truck, a restaurant, an  American Legion post, and a            Pennsylvania warehouse.  As to this last incident, he relates            that  defendant and  the  detectives  actually  travelled  to            Pennsylvania in  May 1994 to  commit the robbery, only  to be            thwarted by local police pursuant to covert arrangements made            by the detectives.3                   Defendant's  criminal  record  includes  three  long-ago            convictions for breaking  and entering with intent  to commit                                            ____________________            3.  The  government  also  alleges  that  defendant told  the            detectives he  was contemplating killing his  estranged wife.            This contention, said to have  been made by proffer below, is            not contained in the Brosnan affidavit  and was not mentioned            by the district court.  Defendant's wife has  since submitted            an affidavit dismissing  the allegation  as "ridiculous"  and            offering to return  to Rhode Island to take  "custody" of her            husband.  Under  the circumstances, we choose not  to rely on            this charge.                                         -4-            larceny.4   In addition,  he was convicted  in the mid-1970's            of conspiracy  to violate the  civil rights of  another, with            death  resulting.  The  facts underlying this  conviction are            detailed in United States v.  Guillette, 547 F.2d 743, 746-47                        _____________     _________            (2d Cir. 1976), cert. denied, 434 U.S. 839 (1977).  In brief,                            ____________            defendant  was  indicted in  1972,  along with  others,  on a            charge  of interstate  transportation  of automatic  firearms            that had been  stolen from a National Guard  armory.  Shortly            before trial, the government's key witness  was killed when a            bomb exploded  in his  home.  A  jury subsequently  acquitted            defendant on charges  of intimidating a witness  by force and            using a dynamite  bomb to commit a felony,  but convicted him            on the  charge of  conspiracy with death  resulting.   As the            Second  Circuit  observed,  "Despite the  acquittals  on  the            substantive  charges  and  the  finding  that  Joost  had  no            culpable  participation in the  actual bombing, the  jury was            free  to  find  that  Joost  was  an  active  member  of  the            conspiracy which resulted in  [the witness'] death."   Id. at                                                                   ___            755.  Defendant was free on  bail with respect to the pending            firearms  indictment during the time he committed this crime.            He was  imprisoned from  1973 until 1987  on account  of such            offense.                                            ____________________            4.  Defendant states,  without rebuttal, that these all arose            out of a "single transaction"  occurring in 1963, when he was            19 years of age.                                          -5-                 Defendant is approximately 50 years  of age.  He is said            to be  separated from  his wife, who  resides in  Boston with            their  four-year-old son.   Apart  from  his elderly  mother,            defendant  has no other family  ties in Rhode  Island.  He is            currently unemployed and without financial resources.                                          II.                 Defendant  raises five  issues on  appeal,  in which  he            mostly complains of alleged irregularities in the lower court            proceedings.  We shall address these seriatim.                   1.  Defendant first contends, in a two-pronged argument,            that  neither of  the hearings  conducted  below was  timely.            Under 18 U.S.C.   3142(f), a detention hearing is to 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."    As   mentioned,  the            magistrate   took   up  the   issue  of   pretrial  detention            immediately  following  defendant's arraignment.    Defendant            nonetheless  insists  that this  hearing was  a nullity.   He            explains that attorney Arthur Chatfield  (who is said to be a            friend of  the defendant's) appeared  on his behalf  that day            solely  for purposes of arraignment.  Defendant's "memory" is            that he informed the magistrate that he needed time to decide            whether Chatfield (or  another attorney) would represent  him            at the detention  hearing or whether he would  appear pro se.            He "believes" that no argument  was offered in opposition  to                                         -6-            the government's request for detention.  It was therefore his            "understanding"  that  an  "implied  continuance"  had   been            granted and that he was being temporarily detained pending  a            renewed hearing.  As we understand his argument, defendant is            not claiming a violation of  his right to counsel as provided            for in  18 U.S.C.    3142(f).5  Instead, he  is alleging that            the hearing was postponed because of uncertainties  as to the            status of his representation  and was never rescheduled.   He            thus  insists  that  the  September  29  hearing  before  the            district judge constituted his initial detention hearing--one            occurring well past the statutory time limits.                 The  absence  of   a  transcript  precludes   definitive            resolution  of these  assertions.   Yet it  is apparent  that            defendant's  "understanding"  that  a  continuance  had  been            ordered  was   in  fact   a  misunderstanding;   neither  the            magistrate  nor the district judge made any reference thereto            in their written  orders.  Indeed, defendant  himself alluded            to this  point only obliquely  in his motion to  the district                                            ____________________            5.  To  the extent  defendant  did  intend  to  advance  this            argument on  appeal (as  he did below),  it would  provide no            basis  for  release.   As was  the case  in United  States v.                                                        ______________            Vargas, 804 F.2d 157 (1st Cir. 1986) (per curiam), even if we            ______            were  to  assume that  defendant  "did not  have  an adequate            detention  hearing before  the magistrate,  any defects  were            cured by the subsequent de  novo hearing held by the district                                    ________            court."   Id.  at 162;  see also  United States  v. Montalvo-                      ___           ________  _____________     _________            Murillo, 495  U.S. 711,  720 (1990) ("there  is no  reason to            _______            bestow upon  the defendant a  windfall and to visit  upon the            Government and  the citizens  a severe  penalty by  mandating            release of  possibly  dangerous defendants  every  time  some            deviation from the strictures of   3142(f) occurs").                                         -7-            judge  seeking release.   Moreover,  even  were we  to assume            arguendo that the time constraints  imposed by   3142(f) were            ________            somehow  violated, defendant's release  would not  thereby be            compelled.  See  United States v. Montalvo-Murillo,  495 U.S.                        ___  _____________    ________________            711,  716-17 (1990) ("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.").6   Defendant,            noting  that  the   Montalvo-Murillo  Court  refrained   from                                ________________            specifying  the  appropriate  remedy  for  "conduct  that  is            aggravated or  intentional," id.  at 721,  suggests that  the                                         ___            government's  conduct  here  was  of  this  ilk.7    To   the            contrary, we  find nothing in  the present record  to suggest            that the  government contributed  to the  delay in  resolving            defendant's bail status.                  In the alternative,  defendant argues that the  district            judge failed to conduct a "prompt" review of the magistrate's            detention order,  as required  by 18 U.S.C.    3145(b).   The            docket sheet reveals that his motion for release was filed on                                            ____________________            6.  In  reaching   this  conclusion,  the  Court  noted  that            detention  hearings take place  "during the disordered period            following arrest" and that "some errors in the application of            the time  requirements" will  inevitably occur  as a  result.            495 U.S. at 720.  As one such example, it cited "ambiguity in            requests for continuances."  Id.                                          ___            7.  Defendant  advances  a  similar  claim, mentioned  infra,                                                                   _____            regarding the  government's  alleged  interference  with  his            trial preparations.                                           -8-            August  22, 1994--some  42 days  before it  was denied.   Yet            defendant  has  elsewhere acknowledged  that this  motion was            initially  rejected for filing  because of noncompliance with            local court  rules; he here  admits that it was  "refiled" on            September  9.  The precise circumstances  giving rise to this            procedural  snag  are  not evident  from  the  instant record            (although it appears that they  derived at least in part from            defendant's pro  se status).   What is evident is  that, once            the  matter was formally presented for decision, the district            judge acted with  reasonable promptness--issuing a scheduling            order on September 23, holding a hearing on September 29, and            rendering a  decision on  October 3.   And again,  even if  a            deviation  from the  timeliness requirement  were  thought to            exist,  it would provide  no grounds for  defendant's release            under the teachings of Montalvo-Murillo.                                   ________________                 2.  Defendant next argues that he  was unfairly deprived            of the opportunity to  call the two detectives as  witnesses.            He does not object to  the fact that the government presented            their  testimony by way  of hearsay contained  in the Brosnan            affidavit.   See, e.g.,  United States v.  Acevedo-Ramos, 755                         ___  ____   _____________     _____________            F.2d  203,  204  (1st  Cir.  1985)  ("the  lawfulness  of the            practice of using  hearsay evidence at bail  hearings is well            established").  He insists, however, that the court's refusal            to  subpoena these  witnesses as  he  requested violated  his                                         -9-            rights  under   3142(f) to "present witnesses" and "to cross-            examine witnesses who appear at the hearing."  We disagree.                   A  district court has wide discretion in determining the            form of evidentiary  presentation at a bail  hearing, such as            whether to  proceed by  live testimony or  by proffer.   See,                                                                     ___            e.g., United  States v.  Hurtado, 779  F.2d 1467, 1480  (11th            ____  ______________     _______            Cir.  1985).  It  is likewise  within the  court's discretion            whether to  permit a defendant  to call adverse  witnesses to            the stand; no  absolute right to  do so exists.   See,  e.g.,                                                              ___   ____            United States  v. Gaviria,  828 F.2d 667,  669-70 (11th  Cir.            _____________     _______            1987)  (upholding denial of  request to call  government case            agent; holding that  defendant "has only a  conditional right            to  call adverse witnesses"  and that whether  defendant must            make   "initial  proffer  of  the  expected  benefit  of  the            witness's testimony" lies within  court's discretion); United                                                                   ______            States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986) ("Without            ______    ______            a  proffer  from  Winsor  that  the   government's  proffered            information was incorrect, the magistrate was not required to            allow  Winsor to  cross-examine the investigators  and police            officers.");  United States v. Delker, 757 F.2d 1390, 1397-98                          _____________    ______            (3d  Cir. 1985) (upholding lower court's refusal "to subpoena            the witnesses whose out-of-court statements linked appellant"            to the crimes charged).                 We need not explore the precise contours of the district            court's  discretion in this  regard, inasmuch as  the reasons                                         -10-            advanced  by  defendant  for  calling  the  detectives  prove            insubstantial.   Defendant proffered  to the court  below (he            now tells us) that his interrogation of the detectives  would            have refuted the allegation of dangerousness by establishing:            (1)  that they  had  sought  his permission  to  "beat up  an            informer" but he had told them "to leave the  man alone"; and            (2) that they had attempted to obtain a gun from him in order            to "shoot a person" but  he had talked them out of it.   From            all  that appears from  this proffer, however,  these alleged            incidents have no bearing on the various charges contained in            the Brosnan affidavit (and outlined above) that undergird the            finding of dangerousness  here.  We  therefore find that  the            court acted within its discretion  in declining to expand the            scope of the hearing.8                 3.  Defendant  next alleges that the district court "did            not properly consider" imposing one or more of the conditions            of release  enumerated in    3142(c).9  As it  turns out, his            argument in this  regard pertains to a set  of conditions not            there  mentioned--his  offer  to abide  by  a  combination of                                            ____________________            8.  Defendant  apparently also sought  to call his  wife as a            witness to  rebut the  allegation  that he  had expressed  an            intention to harm her.  And included in his proffer below was            the  allegation that the detectives had sought his permission            "to beat up his estranged wife, but he had forbidden it."  As            we have placed no reliance on this factor,  see note 3 supra,                                                        ___        _____            we need not address these matters.             9.  The government mistakenly characterizes this argument  as            involving the factors set forth in   3142(g).                                         -11-            electronic monitoring and  home confinement.  The  court did,            in  fact,  explicitly  consider  and  reject  this  proposal,            finding that it  would not "reasonably  assure the safety  of            the  community."   Defendant's argument  thus  reduces to  an            assertion that the court erred in so concluding.  At least on            the present record, we find this contention unpersuasive.                  In United  States  v. Tortora,  922 F.2d  880 (1st  Cir.                    ______________     _______            1990), on which the  district court relied, we observed  that            "electronic monitoring,  while valuable  in pretrial  release            cases (especially  in  allowing early  detection of  possible            flight),  cannot  be  expected to  prevent  a  defendant from            committing crimes ... within the monitoring radius."  Id.  at                                                                  ___            887.  Defendant's attempts to distinguish this decision prove            unavailing.   For example,  he points out  that he  is not an            organized  crime  member  owing   allegiance  to  a  criminal            organization (as was the case there), but  instead is alleged            to be a "lone operator."  Yet the Brosnan affidavit discloses            a proclivity  on defendant's  part to  recruit associates  to            assist in the  perpetration of his crimes.  And  we note that            much of the  criminal plotting there described  took place in            defendant's residence.   Defendant also maintains  that there            has been no  suggestion that he "has violated  a condition of            bail in  the past."   To the  contrary, as  noted above,  his            involvement in  the conspiracy  to murder  a federal  witness            occurred while he was free on bail.  Defendant, in any event,                                         -12-            has  proffered no evidence to suggest that a home-confinement            monitoring system "is readily available or workable."  United                                                                   ______            States  v. Perez-Franco,  839 F.2d 867,  870 (1st  Cir. 1988)            ______     ____________            (per  curiam).    Under these  circumstances,  we  decline to            disturb the district court's finding.10                 4.   Defendant also  argues that  his prior  convictions            occurred too long ago to be of any evidentiary relevance.  He            points out that under 18  U.S.C.   3142(e)(3), past crimes of            violence can give rise to a presumption of dangerousness only            if "a period  of not more than  five years has  elapsed since            the date of conviction."  Yet the district court did not rely            on  any such  presumption.   Instead, it  took note  of these            earlier crimes pursuant  to the directive in    3142(g)(3) to            consider a  defendant's "criminal  history."   This provision            contains  no  time   restrictions.    Given  the   nature  of            defendant's  prior  convictions,  and given  that  he  was in            prison  for much  of  the  intervening  period,  the  court's            consideration of such evidence was obviously justified.                 5.    Finally, defendant  complains  that his  continued            detention will interfere  with his defense preparations.   To            the  extent he  is insisting upon  his immediate  release for            this   reason,  his  argument   is  groundless.     While  an                                            ____________________            10.  Should  he be  able to  establish  a proper  evidentiary            foundation, of course,  defendant remains free to  request an            appropriate modification  of  the detention  order  from  the            district court.                                           -13-            incarcerated  defendant proceeding  pro se  must be  afforded            sufficient accommodations to  prepare for  trial, see,  e.g.,                                                              ___   ____            Tate v.  Wood,  963 F.2d  20, 26  (2d Cir.  1992); Milton  v.            ____     ____                                      ______            Morris, 767 F.2d 1443, 1445-46 (9th Cir. 1985); cf. 18 U.S.C.            ______                                          ___              3142(i)  (permitting "temporary  release" under  government            supervision where  "necessary for preparation of the person's            defense"),  the outright  release of  such  an individual  is            obviously unwarranted  under such circumstances.   Cf. Barham                                                               ___ ______            v.  Powell,   895  F.2d   19,  22-24   (1st  Cir.)   (finding                ______            accommodations made to permit pro se defendant to prepare for            trial  while in  prison  constitutionally sufficient),  cert.                                                                    _____            denied, 495 U.S.  961 (1990).   Alternatively, to the  extent            ______            defendant   is  seeking  to  modify  the  conditions  of  his            confinement in  order to  facilitate his  trial preparations,            his  argument  is unrelated  to  the  issue  of bail  and  is            otherwise premature.  We note  in this regard that  defendant            has accused government officials of taking  punitive measures            against him for the purpose of obstructing such preparations-            -including allegedly  holding him "incommunicado"  in prison,            "scaring away" his  attorney, and prohibiting his  use of the            telephone and the  mails.  These contentions  have apparently            been the  subject of  a recent district  court hearing.   Any            consideration thereof by this court must await another day.                                         III.                                         -14-                 Perhaps unmindful of the independent review conducted by            this court, defendant has mounted  no direct challenge to the            finding  of dangerousness.   We shall therefore  refrain from            setting forth a detailed discussion  thereof.  We simply note            our agreement  with the district  court that the  evidence of            record  establishes, in clear and convincing fashion, that no            set  of release conditions would reasonably assure the safety            of  the community.   In  so concluding, we  deem particularly            noteworthy  the  wide-ranging  scope  of  defendant's  recent            criminal  involvement, the violent  nature of  such activity,            and his  earlier participation,  while free  on bail,  in the            successful plot to murder a key witness against him.                  The order of pretrial detention is affirmed.                 ____________________________________________                                         -15-
