
USCA1 Opinion

	




          March 10, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1818                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   SUBIR CHAKLADER,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Daniel K. Sherwood, by Appointment of the Court, for appellant.            __________________            A. John  Pappalardo, United  States Attorney,  with whom  Tobin N.            ___________________                                       ________        Harvey,  Assistant United States Attorney, was on brief for the United        ______        States.                                 ____________________                                    March 10, 1993                                 ____________________                      Per Curiam.  Appellant Subir  Chaklader was ordered                      __________            by the district  court to serve a previously  suspended five-            year sentence for  violating the conditions of  his parole by            committing  an assault  and battery with  a deadly  weapon in            California.  On appeal, Chaklader argues that the twenty-one-            month delay between the time that California prison officials            first indicated that  he would be  made available to  federal            authorities  on a  detainer and  the commencement  of federal            probation  revocation proceedings, violated  Rule 32.1 of the            Federal  Rules  of Criminal  Procedure  and  the due  process            clause of the United States Constitution.                                     BACKGROUND1                                     BACKGROUND                      Chaklader was  federally indicted  in 1983  for one            count  of mail  fraud and  one count  of using  fraudulently-            obtained  credit cards.   In  1987, he  was sentenced  in the            United   States   District   Court   for   the  District   of            Massachusetts to  a three-year committed sentence  on Count 1            and a consecutive five-year suspended sentence with probation                                            ____________________            1.  Some  of  the facts  mentioned  below are  found  only in            appendices  filed  for the  first  time  with this  court  by            Chaklader and the government after appeal.  They are not part            of  the district  court  record, Chaklader  having failed  to            raise his  Rule 32.1  and due  process  arguments before  the            district  court.   While facts  not contained  in the  record            below are not properly before this  court, we nonetheless set            forth  the parties' version of  them by way  of background to            our conclusion that,  even considering the Rule 32.1  and due            process arguments, they are wholly without merit.                                           -2-            for  five years on Count  2.  Chaklader  served the committed            sentence and was released on probation in 1988.                      On  May   7,  1990,  Chaklader   was  arrested   in            California and charged under state law with attempted murder.            On May 9 and May  14 of that year, the United  States Marshal            in  California  filed  detainers   against  Chaklader  for  a            probation   violation   warrant   the   district   judge   in            Massachusetts had ordered  several days before the  offense.2            These  detainers  sought  notification  from  the  California            prison  authorities if  Chaklader was  transferred, available            for federal custody, or released from state custody.                        On  June 27,  1990,  Chaklader pled  guilty in  the            California Superior Court to the lesser charge of assault and            battery with a  deadly weapon and was sentenced to  a term of            four-years imprisonment that  "may run  concurrent" with  any            federal sentence.  Over the next two years, while serving his            state sentence  in  a state  prison, Chaklader  says that  he            sought  unsuccessfully  to   have  federal  authorities  take                                            ____________________            2.  This petition  for revocation of probation,  dated May 4,            1990,  identified five  separate probation  violations:   (1)            failure  to notify  his probation  officer  that he  had been            questioned by law enforcement officers; (2) failure to notify            his probation  officer that he  had been discharged  from his            employment;  (3) leaving  the Southern  District of  New York            without permission of  the Probation Department;  (4) failure            to notify his probation officer of a change in residence; and            (5) failure to  report to his probation  officer as directed.            An   additional   probation   revocation  petition   alleging            Chaklader's conviction  for the  offense committed on  May 7,            1990  was  ordered  filed  on  May  18,  1992.    Chaklader's            probation was eventually revoked under the later petition.                                         -3-            custody of him.   On  September 17,  1990, California  prison            authorities  notified federal authorities  that Chaklader was            available  on the  detainer.   When, as  Chaklader says,  the            federal authorities refused to take custody of him, Chaklader            sought to have  the California state courts  revoke his state            plea  agreement.   After failing  to get  this relief  in the            state courts,  Chaklader asserts  that he  filed unsuccessful            petitions  for  habeas  corpus  in  federal  courts  in  both            California  and   Massachusetts,  seeking  to   have  federal            authorities take custody of him.                      On  May  18,  1992,  the  District  Court  for  the            District  of  Massachusetts  issued  a  second  petition  for            revocation of probation for Chaklader's commission of the May            1990 offense.  See supra note  2.  Chaklader was brought from                           ___ _____            the California prison to Boston on a writ of habeas corpus ad                                                                       __            prosequendum   to  answer  the  second  probation  revocation            ____________            petition.   A probation violation hearing was held on June 1,            1992,  approximately  twenty-one   months  after   California            authorities had first advised that they  were willing to make            Chaklader available to federal authorities for this purpose.                      During the probation violation hearing, Chaklader's            attorney asked  the court to consider the  time Chaklader had            served  on  the  California  sentence  in   determining  what            sentence to  impose for Chaklader's probation  violation.  In            his allocution, Chaklader himself asked the court to consider                                         -4-            the   California   sentence.     He  further   expressed  his            frustration  over his alleged  unsuccessful attempts  to have            federal authorities take custody of him so that his sentences            would run concurrently, complaining  that he had "been trying            for two years to  come here."  The district  court thereafter            revoked Chaklader's  probation and ordered that  he serve the            full five-year  sentence that had originally  been suspended.            The sentence was  to be  served on and  after the  California            state sentence.                      This appeal followed.                                      DISCUSSION                                      DISCUSSION                      On appeal, Chaklader  contends that the twenty-one-            month  delay between  the time  California authorities  first            indicated their  readiness to  make him available  to federal            authorities  (September  17,  1990)   and  the  time  of  his            probation revocation hearing (June  1, 1992) violated Fed. R.            Crim.  P. 32.1 and his  rights to a  speedy probation hearing            under  the due process clause.  A serious impediment to these            arguments is  that Chaklader  did not articulate  them below.            Absent  plain error, an  issue not presented  to the district            court  cannot be raised for the first time on appeal.  United                                                                   ______            States  v.  Argentine, 814  F.2d  783, 791  (1st  Cir. 1987);            ______      _________            United States  v. Chambliss, 766  F.2d 1520, 1521  (11th Cir.            _____________     _________            1985).                                         -5-                      Chaklader is  unable to establish any  error on the            part of the district court, let alone plain error.  Rule 32.1            requires  the affording  of a  prompt probable  cause hearing            "[w]henever  a person is held  in custody on  the ground that            the person has  violated a  condition of probation  . . .  ."            Fed. R. Crim. P. 32.1(a)(1); see United States  v. Sackinger,                                         ___ _____________     _________            537  F. Supp. 1245, 1249 (W.D.N.Y. 1982), aff'd, 704 F.2d 29,                                                      _____            30 (2d Cir. 1983).  Thereafter, the  revocation hearing shall            be  held  within  a  reasonable  time.    Fed.  R.  Crim.  P.            32.1(a)(2).  Contrary to  Chaklader's contentions, he was not            in  custody on the grounds of his federal probation violation                        _________________________________________________            when in 1990 California authorities purportedly indicated his            availability   to  federal   authorities  on   the  detainer.            Chaklader was  instead serving,  and continued  thereafter to            serve, a  state sentence in a state  facility.  Not until May            1992  was Chaklader  finally  taken into  federal custody  to            answer  for violations  of the  conditions of  his probation.            His  probation violation  hearing  took place  less than  one            month later.   There was  thus clearly no  violation of  Rule            32.1.                      For  similar  reasons,   Chaklader's  due   process            argument fails as there is "no constitutional duty to provide            petitioner an adversary parole hearing until he is taken into                                                   ______________________            custody as a parole violator . .  . ."  Moody v. Daggett, 429            ____________________________            _____    _______            U.S.  78, 89 (1976) (emphasis  added); see also United States                                                   ________ _____________                                         -6-            v. Wickham, 618 F.2d  1307, 1309 n.3 (9th Cir.  1979) (speedy               _______            revocation hearing protection under the due process clause is            "not triggered when the warrant is placed as a detainer at an            institution where  the probationer  or parolee is  already in            custody awaiting disposal of an intervening charge or serving            a  sentence  for  a   crime  committed  while  on  supervised            release.").                       Chaklader  has  suffered  no  prejudice   from  the            twenty-one-month   delay   before   his   federal   probation            revocation  hearing.    It  is  not alleged  that  the  delay            impaired his ability to contest the revocation.  See Wickham,                                                             ___ _______            618 F.2d at 1310 (delay  must affect probationer's ability to            contest  facts  of revocation);  see  also  United States  v.                                             _________  _____________            Marion, 404  U.S. 307,  324 (for  pre-indictment delay  to be            ______            cognizable  under  due process  clause,  defendant  must show            actual  prejudice  to  the  defense of  the  criminal  case).            Indeed,  it  would  be  difficult,  if  not  impossible,  for            Chaklader to establish such prejudice since he pled guilty to            the  underlying  California   assault  and  battery   charge.            Moreover,  the  passage  of   twenty-one  months  in  no  way            restricted   the   district   court's  ability   "to   grant,            retroactively,  the  equivalent  of   concurrent  sentences."            Moody, 429 U.S. at 87.  Aware of the  California sentence and            _____            the time  served thereunder, the  district court  nonetheless                                         -7-            chose  to require  that  the reinstated  federal sentence  be            fully served on and after the California sentence.                       Thus  even  accepting  Chaklader's version  of  the            facts, and considering  arguments not presented  below, there            was  no violation of his right to a prompt revocation hearing            either under Rule 32.1 or under the due process clause.                      Affirmed.                      ________                                         -8-
