U.S. v. Zuccaro, 1287
| Decision Date | 06 April 1981 |
| Docket Number | No. 1287,D,1287 |
| Citation | 645 F.2d 104 |
| Parties | UNITED STATES of America, Appellee, v. Peter ZUCCARO, Defendant-Appellant. ocket 81-1083. |
| Court | U.S. Court of Appeals — Second Circuit |
Stephen R. Mahler, Kew Gardens, N.Y., for defendant-appellant.
Diane F. Giacalone, Asst. U. S. Atty., Brooklyn, N. Y., for appellee.
Before LUMBARD and NEWMAN, Circuit Judges, and WERKER, * District Judge.
This appeal from an order of the District Court for the Eastern District of New York (Henry Bramwell, Judge) setting bail in the amount of $350,000 primarily concerns the question whether a district judge has jurisdiction to set more stringent terms for bail than those previously set by a magistrate, in the absence of any intervening change of circumstances. On March 4, 1981, appellant Zuccaro was arrested on a complaint charging the hijacking of an armored car in violation of 18 U.S.C. § 2113(a) and (d) (1976). That same day he was presented before United States Magistrate A. Simon Chrein, who set bail at $150,000. The next day an Assistant United States Attorney presented a motion to the District Court, seeking to have bail set at $500,000. After hearing the prosecutor and counsel for the defendant, Judge Bramwell set bail at $350,000. From that order Zuccaro appealed, pursuant to 18 U.S.C. § 3147(b) (2) (1976). We affirmed Judge Bramwell's order after oral argument. This opinion sets forth our reasons.
The bail provisions of the Criminal Code explicitly set forth the authority of a district judge to modify the conditions of bail at the request of the person detained. Section 3146(d) permits a person detained after 24 hours to have the conditions reviewed by the judicial officer who imposed them; that officer is required to set forth the reasons for the conditions, if their imposition results in confinement. A person detained after reconsideration by the judicial officer pursuant to § 3146(d) is authorized by § 3147(a) to "move the court having original jurisdiction over the offense with which he is charged to amend the order" specifying the conditions of release. See Grimes v. United States, 394 F.2d 933 (D.C.Cir.1967) (requiring prior resort to procedure of § 3146(d); Shackleford v. United States, 383 F.2d 212 (D.C.Cir.1967) (same). However, no explicit authority is spelled out for modifications of conditions of bail at the request of the Government.
Nevertheless, we find such authority implicitly contemplated by the provisions of § 3147(b), which authorizes appellate review of the conditions of bail. Under subsection (b), appellate review is permitted under two circumstances. The first is where a court has denied a motion under subsection (a), i. e., a motion made by the person detained. The second is where conditions of release have been "imposed or amended by a judge of the court having original jurisdiction over the offense charged." (Emphasis added). By contemplating amendment of the conditions of release by the trial judge, the statute could mean amendment only upon motion of the defendant or also upon motion of the Government. If the conditions were initially set by the trial judge, as might occur if the judge was the judicial officer before whom the accused was first presented pursuant to Fed.R.Crim.P. 5, there would be no question that amendment could be sought by the Government, since § 3146(e) explicitly authorizes the judicial officer who originally set the conditions of bail to amend his order by imposing additional conditions. We see no reason to doubt that the authority of the trial judge to amend conditions of bail can also be exercised, upon motion of the Government, when the conditions were previously set by some other judicial officer.
Several considerations lead us to this interpretation. First, conditions of bail are set to govern release "pending trial," 18 U.S.C. § 3146(a). Since the time period for which the conditions are set extends into a period in which the judge with jurisdiction over the offense will be exercising his jurisdiction, he should have authority to make such orders as he deems necessary to assure the presence of the defendant, and the Government should have the opportunity to seek the exercise of that authority. Second, situations frequently arise where a person is arrested in a distant district and then removed to the district of prosecution. Fed.R.Crim.P. 40. When this occurs, it would not make sense to insist that the Government's...
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