Subject:  UNITED STATES v. MONTALVO-MURILLO, Syllabus



(Slip Opinion)
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
    is being done in connection with this case, at the time the opinion is
    issued.  The syllabus constitutes no part of the opinion of the Court
    but has been prepared by the Reporter of Decisions for the convenience
    of the reader.  See United States v. Detroit Lumber Co., 200 U. S. 321,
    337.
SUPREME COURT OF THE UNITED STATES


Syllabus



UNITED STATES v. MONTALVO-MURILLO


certiorari to the united states court of appeals for the tenth circuit

No. 89-163.  Argued January 9, 1990, Decided May 29, 1990

A provision of the Bail Reform Act of 1984, 18 U. S. C. 3142(e), requires
that a suspect held in pretrial custody on federal criminal charges be
detained if, "after a hearing pursuant to . . . subsection (f)," he is
found to pose a risk of flight and a danger to others or the community and
if no condition of release can give reasonable assurances against these
contingencies.  Section 3142 (f) provides that, before detention can occur,
a judicial officer "shall" conduct a hearing "immediately upon the person's
first appearance before the . . . officer" unless he grants a continuance.
Respondent was arrested on federal drug charges, and a Magistrate, at a
detention hearing held after respondent's "first appearance" and after
continuances granted beyond the period permitted by the Act, ordered his
release on bond.  The District Court, while finding that no conditions
reasonably could assure his appearance or the community's safety, held that
the detention hearing had not been held upon respondent's first appearance
and that pretrial release was the appropriate remedy for violation of the
statutory requirement.  The Court of Appeals affirmed.  Upon issuance of
the court's mandate, respondent was released, took flight, and remains at
large.  He is, however, represented by counsel before this Court.

Held:

    1. Respondent's flight does not render the case moot, for the
    resolution of this dispute determines the course of proceedings if and
    when he is rearrested on the charges now pending.  P. 2.

    2. In light of the disposition of this case, the Government may detain
    respondent at once upon his rearrest without first seeking revocation
    of the existing release order.  P. 2.

    3. The failure to comply with the Act's prompt hearing provision does
    not require release of a person who should otherwise be detained.  Pp.
    5-11.

        (a) Neither the time requirements nor any other part of the Act
        indicates that compliance with the first appearance requirement is
        a precondition to holding the hearing or that failure to comply so
        subverts 3142(f)'s procedural scheme as to invalidate the hearing.
        There is no presumption or rule that for every mandatory duty
        imposed upon the court or the Government or its prosecutors there
        must exist some corollary punitive sanction for departures or
        omissions, even if negligent.  See French v. Edwards, 13 Wall. 506,
        511; Brock v. Pierce County, 476 U. S. 253, 260.  If Congress' mere
        use of the word "shall" operated to bar all authority to seek
        pretrial detention once the time limit had passed, then any other
        violation of subsection (f)'s procedures, such as the right to be
        represented by counsel, present witnesses and evidence, testify,
        and cross-examine witnesses, no matter how insignificant, would
        also prevent a hearing from being "a hearing pursuant to" the
        statute.  Respondent's argument that these other infringements
        could be subject to a harmless-error analysis cannot be reconciled
        with his contention that absolute compliance with the timely
        hearing requirement is necessary.  Pp. 5-8.

        (b) Automatic release contravenes the statutory purpose of
        providing fair bail procedures while protecting the public's safety
        and assuring a defendant's appearance at trial.  There is no reason
        to bestow a windfall upon the defendant and visit a severe penalty
        upon the Government and citizens every time some deviation occurs
        where the Government and the courts have made diligent efforts, or
        even where the Government bears some of the responsibility for the
        hearing's delay.  An order of release in the face of the
        Government's ability to prove that detention is required has
        neither causal nor proportional relation to any harm caused by the
        delay in holding the hearing, since release would not restore the
        benefits of a timely hearing to a defendant who has already
        suffered from the inconvenience and uncertainty of the delay.
        Thus, once the Government discovers that the time limits have
        expired, it may ask for a prompt detention hearing and make its
        case to detain.  Pp. 8-10.

        (c) This ruling is consistent with the rule of Bank of Nova Scotia
        v. United States, 487 U. S. 250, 256, that a nonconstitutional
        error is harmless unless it has a "substantial influence" on the
        outcome of the proceedings.  Here, detention was harmless because
        respondent, as an individual likely to flee, would have been
        detained if his hearing had been held upon his first appearance
        rather than a few days later.  Pp. 10-11.

876 F. 2d 826, reversed.

Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J.,
and White, Blackmun, O'Connor, and Scalia, JJ., joined.  Stevens, J., filed
a dissenting opinion, in which Brennan and Marshall, JJ., joined.

------------------------------------------------------------------------------




Subject: 89-163--OPINION, UNITED STATES v. MONTALVO-MURILLO

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 89-163



UNITED STATES, PETITIONER v. GUADALUPE
MONTALVO-MURILLO


on writ of certiorari to the united states court of appeals for the tenth
circuit

[May 29, 1990]



    Justice Kennedy delivered the opinion of the Court.
    Both the District Court, 713 F. Supp. 1407 (NM 1989), and the Court of
Appeals for the Tenth Circuit, 876 F. 2d. 826 (1989), found that one
Montalvo-Murillo, a suspect held in pretrial custody on federal criminal
charges, posed a risk of flight and a danger to the community.  Because no
condition of release could give reasonable assurances against these
contingencies, detention was required by the Bail Reform Act of 1984, 18 U.
S. C. 3142(e).  The District Court and Court of Appeals held, nevertheless,
that respondent must be released because there had been a failure to
observe the Act's directions for a timely hearing.  18 U. S. C. 3142(f).
To no one's great surprise, the suspect became a fugitive after his release
and is still at large.
    We granted certiorari, 493 U. S.  (1989), to resolve a split among the
Courts of Appeals on whether failure to comply with the prompt hearing
provision of the Act requires the release of a person who is a flight risk
or a danger to other persons or the community. {1}  We decide that the Act
does not require release and so we reverse the Court of Appeals.
Montalvo-Murillo, though now a fugitive, is the respondent here and is
represented by appointed counsel.  Respondent's flight does not render the
case moot, for our resolution of the dispute determines the course of
proceedings if and when he is rearrested on the charges now pending.  Since
we reverse, the Government may detain respondent at once upon his rearrest
without first seeking revocation of the existing release order.  See 18 U.
S. C. 3148(b).

I
    Two provisions of the Bail Reform Act are relevant.  The substantive
provisions that allow detention are contained in subsection (e):

"Detention, If, after a hearing pursuant to the provisions of subsection
(f) of this section, the judicial officer finds that no condition or
combination of conditions will reasonably assure the appearance of the
person as required and the safety of any other person and the community,
[he] shall order the detention of the person before trial. . . ."
3142(e).


The controversy in this case centers around the procedures for a hearing,
found in subsection (f):

"Detention Hearing, The judicial officer shall hold a hearing to determine
whether any condition or combination of conditions . . . will reasonably
assure the appearance of such person as required and the safety of any
other person and the community,

                . . . . .



"The 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.  Except for good cause, a continuance on
motion of the person may not exceed five days, and a continuance on motion
of the attorney for the Government may not exceed three days.  During a
continuance, such person shall be detained . . . .  The person may be
detained pending completion of the hearing."  1342(f).


    We review the sequence of events to put the statutory issue in proper
context.  On Wednesday, February 8, 1989, United States Customs Service
agents stopped respondent at a New Mexico checkpoint near the international
border.  The agents discovered approximately 72 pounds of cocaine hidden in
respondent's truck.  Admitting his plan to link with cocaine purchasers in
Chicago, Illinois, respondent agreed to cooperate with the Drug Enforcement
Agency (DEA) and to make a controlled delivery under Government
surveillance.  The DEA took respondent and his truck to Chicago in an
attempt to complete the transaction, but the anticipated purchasers did not
arrive at the delivery point.
    The Government then arranged to transfer respondent back to New Mexico,
where a criminal complaint had been filed charging him with possession of
cocaine with intent to distribute, in violation of 21 U. S. C. 841.  Before
his departure, respondent was brought before a Magistrate in the Northern
District of Illinois for a transfer hearing pursuant to Federal Rule of
Criminal Procedure 40.  The hearing was held on Friday, February 10, two
days after the initial arrest in New Mexico.  Respondent was represented by
counsel, and it appears that all parties and the Magistrate agreed that the
detention hearing would be held in New Mexico, where the charges were
pending.  Respondent was returned to New Mexico that same evening.
    The weekend intervened.  On Monday, February 13, the DEA asked the
United States Magistrate's office in New Mexico to schedule a detention
hearing.  A hearing was convened on Thursday, February 16, and respondent
attended with retained counsel.  Because the Pretrial Services Office had
not yet prepared a report, the Magistrate, sua sponte, ordered a 3-day
continuance, but, observing that the following Monday was a federal
holiday, scheduled the hearing for Tuesday, February 21.  The record shows
no request for a waiver of the time limits, no advice to respondent of the
right to a hearing within the time provided by the Act, no finding of good
cause for continuance, and no objection to continuance by either party.
The detention hearing was held as scheduled on February 21.  The
Magistrate, unconvinced that respondent was a flight risk or danger to
other persons or to the community, decided to order release of respondent
upon the posting of a $50,000 bond and compliance with other conditions.
The Government at once sought review in the District Court.
    After holding a de novo detention hearing, on Thursday, February 23,
the District Court agreed with the Government that no condition or
combination of conditions reasonably would assure respondent's appearance
or the safety of the community.  Nevertheless, it ordered respondent's
release.  The court found that the detention hearing had not been held upon
respondent's first appearance as specified by 3142(f), and that pretrial
release on conditions was the appropriate remedy for violation of the
statutory requirement.  The Court of Appeals affirmed.  Upon issuance of
its mandate, respondent was released and took flight.
    Though the Government notes that the statutory phrase "first
appearance" is by no means clear, either as an abstract matter or as
applied in this case, it does not challenge the Court of Appeals' holding
that respondent's detention hearing was held after that event and that
continuances were beyond what the Act permits.  We decide the case on those
same assumptions, though without passing upon them.  The sole question
presented on certiorari is whether the Court of Appeals was correct in
holding that respondent must be released as a remedy for the failure to
hold a hearing at his first appearance.

II
    In United States v. Salerno, 481 U. S. 739 (1987), we upheld the Bail
Reform Act of 1984 against constitutional challenge.  Though we did not
refer in Salerno to the time limits for hearings as a feature which
sustained the constitutionality of the Act, we recognize that a vital
liberty interest is at stake.  A prompt hearing is necessary, and the time
limitations of the Act must be followed with care and precision.  But the
Act is silent on the issue of a remedy for violations of its time limits.
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.
    The Act, as quoted above, requires pretrial detention of certain
persons charged with federal crimes, and directs a judicial officer to
detain a person charged, pending trial, if the Government has made the
necessary showing of dangerousness or risk of flight.  18 U. S. C. 3142(e),
(f).  The Act authorizes detention "after a hearing [held] pursuant to the
provisions of subsection (f) of this section."  3142(e).  Subsection (f)
provides that "[t]he judicial officer shall hold a hearing" and sets forth
the applicable procedures.  Nothing in 3142(f) indicates that compliance
with the first appearance requirement is a precondition to holding the
hearing or that failure to comply with the requirement renders such a
hearing a nullity.  It is conceivable that some combination of procedural
irregularities could render a detention hearing so flawed that it would not
constitute "a hearing pursuant to the provisions of subsection (f)" for
purposes of 3142(e).  A failure to comply with the first appearance
requirement, however, does not so subvert the procedural scheme of 3142(f)
as to invalidate the hearing.  The contrary interpretation, that
noncompliance with the time provisions in 3142(f) requires the release even
of a person who presumptively should be detained under 3142(e), would
defeat the purpose of the Act.
    We hold that a failure to comply with the first appearance requirement
does not defeat the Government's authority to seek detention of the person
charged.  We reject the contention that if there has been a deviation from
the time limits of the statute, the hearing necessarily is not one
conducted "pursuant to the provisions of subsection (f)."  There is no
presumption or general rule that for every duty imposed upon the court or
the government and its prosecutors there must exist some corollary punitive
sanction for departures or omissions, even if negligent.  See French v.
Edwards, 13 Wall. 506, 511 (1872) ("[M]any statutory requisitions intended
for the guide of officers in the conduct of business devolved upon them . .
. do not limit their power or render its exercise in disregard of the
requisitions ineffectual").  In our view, construction of the Act must
conform to the "`great principle of public policy, applicable to all
governments alike, which forbids that the public interests should be
prejudiced by the negligence of the officers or agents to whose care they
are confided."'  Brock v. Pierce County, 476 U. S. 253, 260 (1986) (quoting
United States v. Nashville, C. & St. L. R. Co., 118 U. S. 120, 125
(1886)).
    In Brock v. Pierce County, supra, the Court addressed a statute that
stated that the Secretary of Labor "shall" act within a certain time on
information concerning misuse of federal funds.  The respondent there
argued that a failure to act within the specified time divested the
Secretary of authority to act to investigate a claim.  We read the statute
to mean that the Secretary did not lose the power to recover misused funds
after the expiration of the time period.  Congress' mere use of the word
"shall" was not enough to remove the Secretary's power to act.  Id., at 260
(footnote omitted) ("We would be most reluctant to conclude that every
failure of an agency to observe a procedural requirement voids subsequent
agency action, especially when important public rights are at stake.  When,
as here, there are less drastic remedies available for failure to meet a
statutory deadline, courts should not assume that Congress intended the
agency to lose its power to act").
    In a similar manner, in this case the word "shall" in the Act's hearing
time requirement does not operate to bar all authority to seek pretrial
detention once the time limit has passed.  Although the duty is mandatory,
the sanction for breach is not loss of all later powers to act.  The
argument that failure to comply with the Act's time limits prohibits the
Government from moving for detention proves too much.  If any variation
from the time limits of subsection (f) prevents a detention hearing from
being "a hearing pursuant to subsection (f)," then the same would have to
be true of any deviation from the other procedures prescribed by 3142(f).
During the hearing, a person is entitled to be represented by counsel,
present witnesses, testify on his own behalf, cross- examine Government
witnesses, and present additional evidence.  18 U. S. C. 3142(f).  If we
suppose an error that infringes any of these rights in an insignificant
way, we doubt that anyone would make the serious contention that a hearing,
otherwise perfect, is not "a hearing pursuant to" the statute because such
an error occurred.  Nor should a hearing held after the person's first
appearance prevent detention.
    To avoid the logical implications of his argument with regard to
procedural violations other than timeliness, respondent admits that other
infringements could be subject to a harmless-error analysis.  This position
cannot be reconciled with respondent's contention that absolute compliance
with the provisions of subsection (f) is mandated by subsection (e).  If a
failure to follow the provisions of subsection (f) with respect to
timeliness means that a condition precedent for detention is lacking, then
a failure to comply with the other provisions of subsection (f) would have
the same effect.  It is no answer to respond that a hearing that violates
some of the procedural requirements of subsection (f) may still be "fair,"
while a hearing held after the person's first appearance cannot be
"prompt."  If there has been a failure to observe the time limits of the
Act, it does not follow that there must be a presumption of prejudice,
either as an empirical matter or based on our precedents.  We need seek
only a practical remedy, not one that strips the Government of all
authority to act.  Bank of Nova Scotia v. United States, 487 U. S. 250
(1988).
    Our conclusion is consistent with the design and function of the
statute.  We have sustained the Bail Reform Act of 1984 as an appropriate
regulatory device to assure the safety of persons in the community and to
protect against the risk of flight.  We have upheld the substantive right
to detain based upon the Government's meeting the burden required by the
statute.  United States v. Salerno, 481 U. S. 739 (1987).  Automatic
release contravenes the object of the statute, to provide fair bail
procedures while protecting the safety of the public and assuring the
appearance at trial of defendants found likely to flee.  The end of
exacting compliance with the letter of 3142(f) cannot justify the means of
exposing the public to an increased likelihood of violent crime by persons
on bail, an evil the statute aims to prevent.  See S. Rep. No. 98-225, p. 3
(1983) ("Federal bail laws must address the alarming problem of crimes
committed by persons on release and must give the courts adequate authority
to make release decisions that give appropriate recognition to the danger a
person may pose to others if released").  The Government's interest in
preventing these harms remains real and substantial even when the time
limits have been ignored.  The safety of society does not become forfeit to
the accident of noncompliance with statutory time limits where the
Government is ready and able to come forward with the requisite showing to
meet the burden of proof required by the statute.
    Assessing the situation in realistic and practical terms, it is
inevitable that, despite the most diligent efforts of the Government and
the courts, some errors in the application of the time requirements of
3142(f) will occur.  Detention proceedings take place during the disordered
period following arrest.  As this case well illustrates, circumstances such
as the involvement of more than one district, doubts about whether the
defendant was subject to temporary detention under 3142(d), and ambiguity
in requests for continuances may contribute to a missed deadline for which
no real blame can be fixed.  In these situations, 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.
    In the case before us, of course, it is not clear that the Government
bears the responsibility for the delay, for the Magistrate continued the
hearing sua sponte when the Government announced that it was ready to
proceed.  But even on the assumption that a violation of the Act occurred
and that the Government should bear some of the responsibility for it, the
Court of Appeals erred in holding that the Government is barred from
proceeding under the Act.
    We find nothing in the statute to justify denying the Government an
opportunity to prove that the person is dangerous or a risk of flight once
the statutory time for hearing has passed.  We do not agree that we should,
or can, invent a remedy to satisfy some perceived need to coerce the courts
and the Government into complying with the statutory time limits.
Magistrates and district judges can be presumed to insist upon compliance
with the law without the threat that we must embarrass the system by
releasing a suspect certain to flee from justice, as this one did in such a
deft and prompt manner.  The district court, the court of appeals, and this
Court remain open to order immediate release of anyone detained in
violation of the statute.  Whatever other remedies may exist for detention
without a timely hearing or for conduct that is aggravated or intentional,
a matter not before us here, we hold that once the Government discovers
that the time limits have expired, it may ask for a prompt detention
hearing and make its case to detain based upon the requirements set forth
in the statute.
    An order of release in the face of the Government's ability to prove at
once that detention is required by the law has neither causal nor
proportional relation to any harm caused by the delay in holding the
hearing.  When a hearing is held, a defendant subject to detention already
will have suffered whatever inconvenience and uncertainty a timely hearing
would have spared him.  Release would not restore these benefits to him.
United States v. Morrison, 449 U. S. 361, 364 (1981) (remedies should be
tailored to the injury suffered).  This case is similar to New York v.
Harris,  U. S.  (1990), where we held that an unlawful arrest does not
require a release and rearrest to validate custody, where probable cause
exists.  In this case, a person does not become immune from detention
because of a timing violation.
    Our ruling is consistent also with Bank of Nova Scotia v. United
States, 487 U. S. 250, 256 (1988), where we held that nonconstitutional
error will be harmless unless the court concludes from the record as a
whole that the error may have had a "substantial influence" on the outcome
of the proceeding.  In this case, it is clear that the noncompliance with
the timing requirement had no substantial influence on the outcome of the
proceeding.  Because respondent was dangerous and likely to flee, he would
have been detained if his hearing had been held upon his first appearance
rather than a few days later.  On these facts, the detention was harmless.
See ibid.; Morrison, supra, at 364-367 (inappropriate to dismiss indictment
because of Sixth Amendment violation that had no adverse impact on
proceedings).  This approach is consistent with the principle of
harmless-error analysis that is the governing precept in most matters of
criminal procedure.  Fed. Rule Crim. Proc. 52.  We have no need to consider
in this case the remedies available to a person detained beyond the
statutory limit and later found eligible for release.  We hold that
respondent was not, and is not, entitled to release as a sanction for the
delay in the case before us.
    The judgment of the Court of Appeals is
Reversed.


------------------------------------------------------------------------------
1
    Compare United States v. Vargas, 804 F. 2d 157, 162 (CA1 1986)
(violation of the time limits specified in the Act does not prevent the
Government from seeking pretrial detention at a subsequent detention
hearing); United States v. Clark, 865 F. 2d 1433, 1436 (CA4 1989) (en
banc); and United States v. Hurtado, 779 F. 2d 1467, 1481-82 (CA11 1985)
(en banc); with United States v. Al-Azzawy, 768 F. 2d 1141, 1145 (CA9 1985)
(failure to observe the time limits precludes detention).





Subject: 89-163--DISSENT, UNITED STATES v. MONTALVO-MURILLO

 


        SUPREME COURT OF THE UNITED STATES


No. 89-163



UNITED STATES, PETITIONER v. GUADALUPE
MONTALVO-MURILLO


on writ of certiorari to the united states court of appeals for the tenth
circuit

[May 29, 1990]



    Justice Stevens, with whom Justice Brennan and Justice Marshall join,
dissenting.
    This case involves two lawbreakers.  Respondent, as the Court
repeatedly argues, ante, at 1, 2, 4, 9, failed to appear after his release
on bail, an apparent violation of 18 U. S. C. 3146.  Even before that,
however, the Government imprisoned respondent without a timely hearing, a
conceded violation of 18 U. S. C. 3142. {1}  In its haste to ensure the
detention of respondent, the Court readily excuses the Government's prior
and proven violation of the law.  I cannot agree.
I


    Before examining the consequences that follow from the Government's
violation of 3142, it is well to remember the magnitude of the injury that
pretrial detention inflicts and the departure that it marks from ordinary
forms of constitutional governance.  Executive power to detain an
individual is the hallmark of the totalitarian state.  Under our
Constitution the prohibition against excessive bail, {2} the Due Process
Clause of the Fifth Amendment, {3} the presumption of innocence {4},
indeed, the fundamental separation of powers among the Legislative, the
Executive and the Judicial Branches of Government {5}, all militate against
this abhorrent practice.  Our historical approach eschewing detention prior
to trial reflects these concerns:

"From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the
present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has
unequivocally provided that a person arrested for a non-capital offense
shall be admitted to bail.  This traditional right to freedom before
conviction permits the unhampered preparation of a defense, and serves to
prevent the infliction of punishment prior to conviction.  See Hudson v.
Parker, 156 U. S. 277, 285 (1895).  Unless this right to bail before trial
is preserved, the presumption of innocence, secured only after centuries of
struggle, would lose its meaning."  Stack v. Boyle, 342 U. S. 1, 4 (1951).


    Sections 3142(e) and (f), allowing limited detention of arrestees, were
enacted against this historical backdrop.  Bail Reform Act of 1984, Pub. L.
98-473, 98 Stat. 1976, 18 U. S. C. 3142(e), (f).  Congress carefully
prescribed stringent procedures to govern this extraordinary departure from
the guarantee of liberty normally accorded to presumptively innocent
individuals. {6}  Accordingly, when this Court upheld the constitutionality
of these provisions of the Bail Reform Act, it assumed that pretrial
detention would be imposed only on those arrestees "found after an
adversary hearing to pose a threat . . . which no condition of release can
dispel.  The numerous procedural safeguards detailed above must attend this
adversary hearing."  United States v. Salerno, 481 U. S. 739, 755 (1987).
{7}
    Section 3142(e) permits pretrial detention only "[i]f, after a hearing
pursuant to the provisions of subsection (f) of this section, the judicial
officer finds that no condition or combination of conditions will
reasonably assure the appearance of the person as required and the safety
of any other person and the community."  18 U. S. C. 3142(e).  Subsection
(f) in turn sets forth specific deadlines, chosen "in light of the fact
that the defendant will be detained during such a continuance," S. Rep. No.
98-225, at 22, within which a detention hearing must be held:

    "The 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.  Except for good
    cause, a continuance on motion of such person may not exceed five days,
    and a continuance on motion of the attorney for the Gov- ernment may
    not exceed three days."  18 U. S. C. 3142(f)(2).


There was no such hearing, or finding of good cause for continuance, when
respondent was arrested on February 8, 1989, when he first appeared before
a Northern District of Illinois Magistrate on February 10, or when the New
Mexico Magistrate convened the parties on February 16.  No court considered
the basis of detention until February 21, after respondent had been
incarcerated for 13 days. {8}
    Congress' specification of the timing of detention hearings defines one
boundary of the courts' power to order pretrial detention.  "Because
detention may be ordered under section 3142(e) only after a detention
hearing pursuant to subsection (f), the requisite circumstances for
invoking a detention hearing in effect serve to limit the types of cases in
which detention may be ordered prior to trial."  S. Rep. No. 98-225, at 20.
The clear terms of the statute demand strict adherence.  See Hallstrom v.
Tillamook County, 493 U. S. ,  -  (1989) (holding notice and 60-day delay
requirements mandatory conditions precedent to commencing suit under 42 U.
S. C. 6972); cf. Griggs v. Provident Consumer Discount Co., 459 U. S. 56
(1982) (Fed. Rule App. Proc. 4(a)(4) stating that a premature notice "shall
have no effect" is mandatory and jurisdictional). {9}
    A federal prosecutor should have no difficulty comprehending the
unequivocal terms of 3142(f)(2) and complying with its deadlines by
proceeding or obtaining a proper continuance at the arrestee's first
appearance.  The rare failure to meet the requirements of subsection (f)
will mean only that the Government forfeits the opportunity to seek
pretrial detention in that case.  Because the provisions of 3142(f)(2) are
a prerequisite only for hearings to consider this particular form of
pretrial action, the prosecutor still may seek any conditions of release
that are "reasonably necessary to assure the appearance of the person as
required and to assure the safety of any other person and the community."
18 U. S. C. 3142 (c)(1)(B)(xiv).  The range of options, the sole safeguards
that were available in cases prior to the creation of the special detention
provisions in 1984, remain viable.

II


    The Court, however, concludes that no adverse consequences should flow
from the prosecutor's violation of this plain statutory command.  Treating
the case as comparable to an agency's failure to audit promptly a grant
recipient's use of federal funds, see Brock v. Pierce County, 476 U. S. 253
(1986), the Court concludes that there is no reason to penalize the public
for a prosecutor's mistake.  If a belated hearing eventually results in a
determination that detention was justified, the error has been proved
harmless.  The Court apparently discards the possibility that the hearing
might result in a determination that the arrestee is eligible for release,
as the Magistrate so determined in this case, or that detention of any
arrestee before establishing the legality of that intrusion on liberty
could "affect substantial rights."  876 F. 2d 826, 829 (CA10 1989); Fed.
Rule Crim. Proc. 52(a).  A harmless-error analysis fails to appreciate the
gravity of the deprivation of liberty that physical detention imposes and
the reality that "[r]elief in this type of case must be speedy if it is to
be effective."  Stack, 342 U. S., at 4.
    This casual treatment of official violations of law is disturbing in
itself, but it is particularly troubling because it treats the pretrial
detention statute as just another routine species of Government regulation
of ordinary civilian affairs. {10}  The Court asserts that the requirements
of 3142(f) are in the category of statutory requisitions that do not limit
the power of Government officers.  Ante, at 6 (citing French v. Edwards, 13
Wall. 506, 511 (1872)).  But the French Court also identified, and in fact
applied, the opposite characterization of the procedural requirements of
the sheriff's sale there at issue.  It held that laws "intended for the
protection of the citizen, and to prevent a sacrifice of his property, and
by a disregard of which his rights might be and generally would be
injuriously affected, . . . are not directory but mandatory," concluding
that such requisitions "must be followed or the acts done will be invalid.
The power of the officer in all such cases is limited by the manner and
conditions prescribed for its exercise."  French, 13 Wall., at 511
(emphasis added).  The grant of power that Congress gave courts to assess
and enforce pretrial detention under 3142(e) and (f) is also of a mandatory
nature. {11}
    As Congress recognized, the magnitude of the injury inflicted by
pretrial detention requires adherence to strict procedural safeguards that
cannot be sacrificed in the name of community safety.  While the Court
regards any arrestee as "a person who presumptively should be detained
under 3142(e)" and as "a suspect certain to flee from justice," ante, at 5,
9, I believe, and the Act reflects, that a new arrestee is initially
presumed eligible for release no matter how guilty a prosecutor may believe
him to be.  Section 3142(e) recognizes that certain characteristics of the
offense or arrestee may support a rebuttable presumption that no conditions
of release exist, but such a presumption arises only "if such judicial
officer finds" that those conditions do exist.  18 U. S. C. 3142(e)
(emphasis added).  The magistrate's say- so cannot make his reasoning any
less of a bootstrap.  A late detention hearing does not become permissible
on the basis of a presumption that cannot exist until after the hearing is
held.

III


    Congress has written detailed legislation in a sensitive area that
requires the Government to turn square corners.  The Court today, however,
permits federal prosecutors to violate the law with impunity.  I agree with
Justice Scalia's observation that strict compliance with such rules may
appear to "frustrat[e] justice in the particular case," but


"[w]ith technical rules, above all others, it is imperative that we adhere
strictly to what we have stated the rules to be.  A technical rule with
equitable exceptions is no rule at all.  Three strikes is out.  The State
broke the rules here, and must abide by the result."  Jones v. Thomas, 491
U. S. ,  (1989) (Scalia, J., dissenting).


    I respectfully dissent.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    Respondent's absence is irrelevant to the merits of the question upon
which we granted certiorari.  Its only bearing on this case is that it
counsels utmost caution in our consideration because the adversarial
character of the litigation may have been compromised.  See United States
v. Sharpe, 470 U. S. 675, 721 (1985) (dissenting opinion).

2
    "Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted."  U. S. Const., Amdt. 8.

3
    We have recognized that delay of a hearing related to detention itself
can violate constitutional guarantees of due process.  See Gerstein v.
Pugh, 420 U. S. 103, 125-126 (1975) (state pretrial detention requires a
"timely judicial determination" of probable cause before or promptly after
arrest); cf. Morrissey v. Brewer, 408 U. S. 471, 485 (1972) (preliminary
hearing is required "promptly after a parole violator's arrest); id., at
488 (parole revocation hearing "must be tendered within a reasonable time
after the parolee is taken into custody").

4
    "It is not a novel proposition that the Bail Clause plays a vital role
in protecting the presumption of innocence.  Reviewing the application for
bail pending appeal by members of the American Communist Party convicted
under the Smith Act, 18 U. S. C. 2385, Justice Jackson wrote:

`Grave public danger is said to result from what [the defendants] may be
expected to do, in addition to what they have done since their conviction.
If I assume that defendants are disposed to commit every opportune disloyal
act helpful to Communist countries, it is still difficult to reconcile with
traditional American law the jailing of persons by the courts because of
anticipated but as yet uncommitted crimes.  Imprisonment to protect society
from predicted but unconsummated offenses is . . . unprecedented in this
country and . . . fraught with danger of excesses and injustice. . . . '
Williamson v. United States, 95 L. Ed. 1379, 1382 (1950) (opinion in
chambers) (footnote omitted)."  United States v. Salerno, 481 U. S. 739,
766 (1987) (Marshall, J., dissenting).
    The Bail Reform Act of 1984 added 18 U. S. C. 3142(j): "Nothing in this
section shall be construed as modifying or limiting the presumption of
innocence."

5
    In limiting the construction of 18 U. S. C. 3147, which prescribes
punishment for crimes committed by persons on pretrial release, we
recognized that balancing among various policy objectives was the job of
Congress:

"[N]o legislation pursues its purposes at all costs.  Deciding what
competing values will or will not be sacrificed to the achievement of a
particular objective is the very essence of legislative choice, and it
frustrates rather than effectuates the legislative intent simplistically to
assume that whatever furthers the statute's primary objective must be the
law."  Rodriguez v. United States, 480 U. S. 522, 525-526 (1987).

6
    Both Houses of Congress were aware of the necessity of procedural
protections:

"[T]he Committee recognizes a pretrial detention statute may nonetheless be
constitutionally defective if it fails to provide adequate procedural
safeguards or if it does not limit pretrial detention to cases in which it
is necessary to serve the societal interests it is designed to protect.
The pretrial detention provisions of this section have been carefully
drafted with these concerns in mind."  S. Rep. No. 98-225, p. 8 (1983).
    "Several of the states which have recently enacted pretrial detention
statutes have also incorporated elaborate due process protections.  These
procedures have been recommended by the American Bar Association, the
Association of the Bar of the City of New York and the National Association
of Pretrial Services Agencies."  H. R. Rep. No. 98-1121, p. 14 (1984)
(footnote omitted) (citing Wis. Const., Art. I, 8(3) (limiting any
legislation allowing pretrial detention to a maximum of 10 days without a
hearing and 60 days thereafter)).

7
    The unique dangers posed by any detention provision were more fully
described by Justice Marshall in his dissenting opinion in Salerno:
    "This case brings before the Court for the first time a statute in
which Congress declares that a person innocent of any crime may be jailed
indefinitely, pending the trial of allegations which are legally presumed
to be untrue, if the Government shows to the satisfaction of a judge that
the accused is likely to commit crimes, unrelated to the pending charges,
at any time in the future.  Such statutes, consistent with the usages of
tyranny and the excesses of what bitter experience teaches us to call the
police state, have long been though incompatible with the fundamental human
rights protected by our Constitution."  481 U. S., at 755.

8
    Even the statutory provision applicable to arrestees who are aliens,
pretrial releasees or parolees allows detention only "for a period of not
more than ten days" after proper judicial determination.  18 U. S. C.
3142(d).  The Senate recognized that "a deprivation of liberty of up to ten
days is a serious matter," but allowed the longer period "to give the
government time to contact the appropriate court, probation, or parole
official, or immigration official and to provide the minimal time necessary
for such official to take whatever action on the existing conditional
release that official deems appropriate."  S. Rep. No. 98-225, at 17.

9
    It is unnecessary to determine whether the time provisions of 3142
actually create a jurisdictional bar, see Hallstrom, 493 U. S., at , nor is
the question of the effect of violations of other provisions of 3142(f)
before us.  The Court itself recognizes the possibility that "some
combination of procedural irregularities could render a detention hearing
so flawed that it would not constitute `a hearing pursuant to the
provisions of subsection (f)' for purposes of 3142(e)," although it fails
to identify what standards it would design to replace those stated by
Congress.  Ante, at 5.  See also ante, at 8 (suggesting that "accident[s]
of noncompliance" and "errors" are excusable); ante, at 9 (suggesting that
"other remedies may exist . . . for conduct that is aggravated or
intentional").

10
    The Court seems satisfied to allow detention to continue without any
hearing at all, unless the arrestee demands the proceeding that is the
prosecutor's duty to instigate.  The implication that an arrestee, who may
well have just met temporary counsel at the first appearance, should be
responsible for divining the Government's intent to move for detention and
for initiating a timely hearing under 3142(f) is absurd.

11
    The Court vigorously declines to "satisfy some perceived need to coerce
the courts and the Government into complying with the statutory time
limits," in the belief that compliance can be presumed "without the threat
that we must embarrass the system by releasing a suspect certain to flee
from justice."  Ante, at 9.  This analysis incorrectly assumes that the
courts have discretion over such matters.  Congress has "perceived" the
need to ensure that detention hearings are held promptly and has shouldered
the responsibility for any "embarrassment" by precisely defining the
authority of courts to order pretrial detention.
