United States of America, Plaintiff-appellee, v. Jose Ignacio Becerra-cobo, Defendant-appellant, 790 F.2d 427 (5th Cir. 1986)

The Bail Reform Act of 1984¹  contains separate provisions for temporary detention for ten days of certain persons, including persons not lawfully admitted for permanent residence in the United States, and for detention until trial of persons who are dangerous or whose presence at trial cannot be reasonably assured. The Act expressly requires that, if the Government seeks detention until trial, the demand must be made at the first appearance of the detained person before a judicial officer. Considering the separate purposes served by temporary detention and the overall statutory scheme, we hold that detention without bail until trial need not be demanded at the first appearance of an alien at a temporary detention hearing, but may be sought by the government at a subsequent hearing so long as it is held within the ten-day temporary detention period. We therefore affirm the district court judgment refusing to release a foreign national detained under these circumstances.

Jose Ignacio Becerra-Cobo has been indicted for possession and importation of cocaine. Becerra-Cobo is a Colombian citizen and a member of the Colombian Air Force who was temporarily in the United States on a military mission. He was arrested after his commanding officer noticed suspicious packages in his luggage and notified the Drug Enforcement Agency.

Becerra-Cobo was arrested and charged on February 5. He appeared before a magistrate on the same day. Because he was a foreign national who had not been admitted for permanent residence, the district court ordered him detained pursuant to 18 U.S.C. § 3142(d) (1) (B), to allow the United States Attorney to notify the proper immigration authorities. That section provides for temporary detention of a person "not a citizen of the United States or lawfully admitted for permanent residence" for a period of not more than ten days, not counting weekends and holidays.

Before the ten-day period had expired, the magistrate, on February 14, held a combined preliminary examination and pretrial detention hearing. At that time, the Government urged that Becerra-Cobo be detained until trial pursuant to Sec. 3142(e),²  which provides for the detention of any arrested person pending trial if no conditions of release would reasonably prevent that person from fleeing or posing a threat to the community. Section 3142(f) requires that such a detention 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."³  It also requires that, except for good cause, a continuance on motion of the person may not exceed five days and, on the Government's motion, may not exceed three days.

Becerra-Cobo asserts that he may not now be detained until trial because the detention was not sought upon his first appearance before a judicial officer or within five days thereafter. He urges that subsection (d), set forth in the footnote,⁴  authorizes only a temporary detention for not more than ten days, and may not be extended to detention pending trial.

Subsection (d) is not limited to aliens, but also permits temporary detention of persons on parole, probation, or release pending trial, sentence, or appeal. Its purpose is to give the Government time to notify the pertinent authority, who may wish to take the detained person into custody by revoking his conditional release or, in the case of an alien, may wish to deport him. If the appropriate official "fails or declines to take the person into custody during [the ten-day] period, the person shall be treated in accordance with the other provisions of this section, notwithstanding the applicability of other provisions of law governing release pending trial...."⁵  This language makes clear that an order of temporary detention does not preclude separate consideration of detention pending trial under Subsection (e). That subsection serves a different purpose, and its conditions are more stringent.⁶ 

No transcript was made of Becerra-Cobo's initial hearing, and neither party requested a continuance. The parties differ on whether the Government initially requested detention under both Subsections (e) and (d) or whether, as Becerra-Cobo asserts, the Government invoked only Subsection (d). The magistrate found, based on the attorneys' assertions and his own recollection, that the Government had invoked both.

The magistrate's recollection cannot be tested absent any record, but, even if detention pending trial was not sought at the February 5 hearing, we hold that the Government's request was timely when made within ten days at the later hearing, which was the first hearing before a judicial officer other than the temporary detention hearing.

This conclusion is based on our reading of the statute as a whole, considering the interplay of Sections (d), (e), and (f). It is consistent with the interpretation of the District of Columbia Circuit⁷  and the Seventh Circuit.⁸  The District of Columbia court reasoned that a temporary detention under subsection (d) would qualify as "good cause" under Subsection (f) to continue the detention hearing for up to ten days. It upheld the detention even though no continuance had been sought, but recommended that, in the future, the government seek a continuance on this ground at the temporary detention hearing if it does not take the preferable course of requesting detention pending trial at that initial hearing. Although the District of Columbia court relied upon a more explicit provision of the D.C.Code, from which the Bail Reform Act was drawn, the Seventh Circuit adopted its rationale and reached the same result, albeit without substantial discussion.

Becerra-Cobo relies on United States v. Angiulo,⁹  and United States v. Payden.¹⁰  Payden is distinguishable because it did not involve temporary detention under Subsection (d): the government simply failed to request detention at the defendant's first appearance. In Angiulo the First Circuit decided only that the Bail Reform Act applied to a person who had already been charged and incarcerated at the time the Act took effect. In discussing that question, the court rejected the defendant's argument that a detention hearing could not have been held "immediately" if he was charged before the Act became effective, noting that "the object of Sec. 3242(f) ... is to guarantee a speedy bail determination, to prevent the magistrate or judge from ordering the defendant temporarily detained (see 18 U.S.C. § 3142(d)), and then holding the key 'detention' hearing at some much later time."¹¹  The court relied on Senate Report No. 225, 98th Congress, 1st Session (1983), U.S.Code Cong. & Admin.News 1984, p. 3182 as authority for this statement. That Report refers only to the general need for a speedy hearing without mention of a Subsection (d) temporary detention. Angiulo, therefore, confronted a different issue, and we decline to rest our interpretation of the statute as a whole on the dicta that Becerra-Cobo quotes.

In the only other case in which a Court of Appeals has mentioned the relationship between sections (d), (e) and (f), United States v. Al-Azzawy,¹²  the Ninth Circuit discussed Angiulo, and implied that any continuance beyond the ten-day temporary detention--even the five day continuance contemplated by Subsection (f)--would probably violate the statute. The court appears to have assumed that a delay during the initial temporary detention period would have been permissible. The court did not decide that question, however, because the month-long delay in that case violated even the most permissive interpretation of the Act.¹³ 

The circuit courts that have considered the time limits imposed by the Act uniformly interpret them strictly.¹⁴  As a rule, the better practice would be for the government to request detention under both Subsections (d) and (e) at the initial hearing, or at least to request a continuance under Subsection (f), in compliance with the plain language of the statute. However, when the government is entitled to obtain a temporary ten-day detention under Subsection (d), and within that time, a hearing is held to determine whether detention is necessary pending trial, the defendant has not suffered any additional loss of liberty or impairment of his rights,¹⁵  and the delay does not offend the overall statutory scheme. Whether detention pending trial will be necessary may not be known until parole or INS officials have been notified during the temporary detention period. Patently, it is in situations when temporary detention is not warranted that the need for an immediate determination, as required by subsection (f), is essential. The Senate Report, supra, notes that the brief periods permitted for a continuance by Subsection (f) are intended to limit the time the defendant is kept in custody before a hearing.¹⁶  When detention is authorized by a different provision of the Act, the urgency is mitigated. Two circuits have adopted this interpretation, a third has done so implicitly, and, despite dicta to the contrary in Angiulo, none has reached the opposite result.

We conclude that detention of a person who has not been admitted for permanent residence pending trial need not be demanded at the first temporary detention appearance so long as it is demanded at the first appearance of the defendant for any other purpose and that hearing is held within the ten day period of the initial temporary detention.

For these reasons, the judgment is AFFIRMED.