U.S. v. James, 82-5137

• Decision Date: 30 April 1982
• Docket Number: No. 82-5137,82-5137
• Citation: 674 F.2d 886
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel W. JAMES, etc. and Gustavo Fernandez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 886

674 F.2d 886

UNITED STATES of America, Plaintiff-Appellee, v. Manuel W. JAMES, etc. and Gustavo Fernandez, Defendants-Appellants.

No. 82-5137.

United States Court of Appeals Eleventh Circuit.

April 30, 1982.

Ronald A. Dion, North Miami Beach, Fla., for defendants-appellants.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before RONEY, KRAVITCH and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

Manuel James and Gustavo Fernandez appeal from the district court's amendment of their conditions for bond under 18 U.S.C. § 3146. Appellants contend that their bonds could not be altered absent proof that they had violated a bond condition, that the policy of the Northern District of Florida against property bonds violates § 3146, that the amended bonds denied them their eighth amendment rights not to be subjected to excessive bail, and that the trial court failed to give adequate reasons for the bond amendment. We reject these contentions and affirm. ¹

I. Background

Both James and Fernandez are long-time residents of Key West, Florida, and have family ties and property there. James is an attorney, and Fernandez has been employed for the past four years by Safe Harbor Boat Repair Company. In September 1981 both men were indicted under the federal drug laws and the Racketeer Influenced and Corrupt Organization Act (RICO) for their involvement in a multi-million dollar marijuana smuggling enterprise which operated from 1977 to 1981. ² The charges carry a potential for life sentences without parole. ³

After the indictment was returned, Judge Higby of the Northern District of Florida issued a warrant for appellants' arrests; the warrant stated that bond would be set at $20 million. ⁴ Both James and Fernandez voluntarily surrendered to federal authorities in the Southern District, and made their initial appearance before a federal magistrate of that district who after a hearing set a $5 million property bond for Fernandez and a $1 million bond consisting of $50,000 corporate surety, $450,000 personal surety and $500,000 property for James. Subsequently, pre-trial proceedings on the charges began in the Northern District, and at a hearing on various pre-trial motions the government orally requested reinstatement of the $20 million bond. ⁵ The trial court rejected the government's request, but amended the bonds to require a $2 million cash or corporate surety bond for each appellant. Neither James nor Fernandez were able to post the amended bond, and this appeal followed.

II. Amendment of Bonds under 18 U.S.C. § 3146

Appellants' first argument is that a district court has no authority to increase a bond unless evidence is presented to show that the defendant has violated or is about to violate a condition of release. We reject this argument. Title 18, United States Code, § 3146(e) states:

(e) A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release: Provided, That, if the imposition of such additional or different conditions results in the detention of the person as a result of his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody after specified hours, the provisions of subsection (d) shall apply. ⁶

Thus by the express statutory language, the judicial officer who first sets the conditions of release "may at any time amend his order to impose additional or different conditions of release ..." (emphasis added). The "at any time" language indicates that an amendment of conditions of release is not conditioned on any event or evidence of a potential violation of the conditions by the accused.

Appellants nevertheless contend that 18 U.S.C. § 3143 controls the imposition of more onerous bond conditions. This section states:

When proof is made to any judge of the United States, or other magistrate authorized to commit on criminal charges, that a person previously released on the execution of an appearance bail bond with one or more sureties on any such charge is about to abscond, and that his bail is insufficient, the judge or magistrate shall require such person to give better security, or, for default thereof, cause him to be committed; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued, by such judge or magistrate, setting forth the cause thereof.

We, however, do not agree that § 3143 circumscribes the authority of a judicial officer to amend the conditions of release under § 3146(e). The "shall require" language of § 3143 indicates that an increase in bail is mandatory upon the proper proof that the defendant is about to abscond. Section 3146, on the other hand, is permissive, and enables, but does not require, amendments to conditions of release at any time and for reasons other than the possibility the accused will abscond. Moreover, it would be illogical to hold that Congress, in stating that a judicial officer may "at any time" impose additional conditions of release, in fact intended for additional conditions to be permitted only upon proof the defendant was about to leave the jurisdiction. We therefore conclude that § 3143 did not bar the trial court's action in this case. Cf., United States v. Zuccaro, 645 F.2d 104, 106 (2d Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981) ("trial judge may amend conditions of bail subject only to the statutory standards applicable to the setting of bail without any prior determination that the magistrate's order was clearly erroneous or contrary to law.").

Although we find that § 3143 does not affect a judicial officer's authority to amend conditions of release under § 3146, the district court's authority to amend appellants' bonds in this case requires further analysis. According to § 3146(e), the authority of that subsection extends to "the judicial officer ordering the release" of the defendant. Here the judicial officer who ordered the release of James and Fernandez was not the district court for the Northern District of Florida, but a magistrate of the Southern District. Thus we are presented with the problem whether the district court having original jurisdiction over the case may amend the conditions of a defendant's release on motion by the government even though that court is not the releasing officer under § 3146(e). ⁷

This exact issue was the subject of a recent Second Circuit case, United States v. Zuccaro, 645 F.2d 104 (2d Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981). In Zuccaro, the appellant was arrested and brought before a federal magistrate who set bond at $150,000. The following day the district attorney motioned the district court to have bail increased to $500,000. After a hearing, the district judge set bail at $350,000 and Zuccaro appealed, claiming that because the trial judge was not the releasing officer under § 3146(e), he could not amend the bond set by the magistrate unless he found the magistrate's order "clearly erroneous." ⁸

The Second Circuit rejected this argument and affirmed the district judge. The court reasoned that because conditions of bail govern release "pending trial," 18 U.S.C. § 3146(a), the conditions necessarily extend into a period during which the judge with original jurisdiction over the case would be exercising that jurisdiction as to pre-trial matters. He therefore must have the authority to make such orders he deems necessary to ensure the presence of the defendants at trial, and the government should be able to invoke that authority. The court, moreover, noted that in many cases (such as the case before us) the defendant's initial appearance would occur in a district other than that of prosecution; in such cases, insisting that the government return to the original releasing officer to request amendments to the conditions of bail would be a gross waste of resources. Finally, the court concluded that because the range of officers empowered to set initial release conditions covered a wide variety of persons, including local justices of the peace, Congress likely did not intend that the conditions be immune from supervision by the trial judge.

We find this reasoning persuasive and adopt it as our own. Thus we hold that despite the fact the district judge was not the releasing officer under § 3146(e), he had authority as the court with original jurisdiction over the case to amend the conditions of appellants' release on motion by the prosecution.

III. The Legality of the Amended Bond

Appellants also attack the legality of the amended bond on several grounds. First they assert that the policy of the Northern District of Florida not to accept property bonds is contrary to the primary policy behind § 3146, which is to permit release of the defendant pending trial under the least restrictive condition compatible with assuring the future appearance of the accused. United States v. Cramer, 451 F.2d 1198 (5th Cir. 1971). Accord, United States v. Honeyman, 470 F.2d 473 (9th Cir. 1972); United States v. Smith, 444 F.2d 61 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); United States v. Bronson, 433 F.2d 537 (D.C.Cir.1970).

Because of the clear purpose behind § 3146, we would have difficulty with upholding the legality of denying or altering a property bond solely because of a stated policy against those bonds. Such a situation is not present in this case, however. Although the trial court's orders ⁹ asserted that the policy of the Northern District against property bonds was a reason for altering the type of security, as opposed to the amount, a reading of the orders as a whole indicates that the court's primary concern in altering the bonds was assuring that James and...