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

          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-
