# United States v. Montalvo-Murillo

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## Dissenting Opinion

    Stevens
United States Supreme Court
495 U.S. 711
United States v. Montalvo-Murillo
No. 89-163 Argued: Jan. 9, 1990. --- Decided: May 29, 1990
Syllabus
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. 713.
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. 713-714.
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. 716-722.
(a) Neither the time requirements nor any other part of the Act indicates that compliance with the first appearance requirement is a pre-condition 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, 20 L.Ed. 702; Brock v. Pierce County, 476 U.S. 253, 260, 106 S.Ct. 1834, 1839, 90 L.Ed.2d 248. 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. 716-719.
(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. 719-722.
(c) This ruling is consistent with the rule of Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228, 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. P. 722.
876 F.2d 826 (CA 10 1989), 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, post, p. 722.
William C. Bryson, Washington, D.C., for petitioner.
Bernard J. Panetta, II, El Paso, Tex., for respondent.
Justice KENNEDY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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