U.S. v. Graewe, 82-3459

• Decision Date: 02 September 1982
• Docket Number: No. 82-3459,82-3459
• Citation: 689 F.2d 54
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frederick GRAEWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 54

689 F.2d 54

UNITED STATES of America, Plaintiff-Appellee, v. Frederick GRAEWE, Defendant-Appellant.

No. 82-3459.

United States Court of Appeals Sixth Circuit.

Argued Aug. 19, 1982.

Decided Sept. 2, 1982.

Edward F. Marek, Donald N. Krosin, Cleveland, Ohio, for defendant-appellant.

J. William Petro, Steven R. Olah, Donna M. Congeni (Lead Counsel), Dept. of Justice, Cleveland, Ohio, Gregory B. English, Justice Dept. Narcotic and Dangerous Drug Section, Washington, D. C., for plaintiff-appellee.

Before LIVELY, KENNEDY and MARTIN, Circuit Judges.

PER CURIAM.

Defendant Graewe appeals a decision of the District Court granting the government's motion to deny him pre-trial bail. Graewe and others are charged in Count I of a seventy-four count indictment with a series of violent criminal acts. These acts include murder and threats to murder potential government witnesses and special agents of the FBI. The acts and the conspiracy to commit them are alleged to have facilitated the operation of a narcotics trafficking and gambling enterprise in violation of 18 U.S.C. §§ 1510, 1961, 1962(d). The indictment further charged that defendant Graewe was responsible for the internal and external security of the criminal enterprise. His duties are alleged to include the intimidation of prospective witnesses, maintaining internal discipline within the organization through fear and violence as well as murdering competing drug dealers and suspected police informants.

Graewe was arraigned on July 3, 1982, where he entered a plea of "not guilty." The government moved the District Court to deny Graewe bail or, in the alternative, to set bail at fifty million dollars in cash. The District Court was asked to exercise its extra-statutory powers to protect the integrity of the proceedings and hold Graewe without bail to prevent him from unlawfully interfering with the instant criminal prosecution by threatening to murder and murdering prospective witnesses. An affidavit by special agent Winslow, which accompanied the motion, outlined the evidence against the defendants as a group.

At the District Court hearing on the government's motion special agent Winslow was the only witness. ¹ He testified on direct and cross-examination that the defendants named in Count I committed the alleged acts of violence enumerated in that count and supplemented his affidavit with testimony relating to the alleged danger to potential witnesses. Although no evidence was presented at the hearing that defendant Graewe had ever specifically threatened a potential witness or government agent, Winslow did testify that defendant had admitted to one of the witnesses in the case his participation in the removal of the body of Ritson, a man murdered in 1978. There was evidence that shortly after Ritson merged his narcotics operation with that of the co-conspirators he was arrested for a narcotics violation himself. Other co-conspirators told other government witnesses that it was believed that Ritson was or was going to be a source of information for law enforcement officers, and also that he knew about one of the earlier murders and that as a result, to keep him from testifying, he was also murdered. Special agent Winslow also testified that defendant admitted participation in the June 1980 killing of one Bostic to Newman, a witness in the witness protection program. There was testimony that in addition to owing a gambling debt, Bostic was suspected of being a law enforcement informant and that this later circumstance was discussed, allegedly by co-conspirators and given as the reason for his murder. Winslow related that there was also an admission to one of the witnesses by a co-conspirator that Bostic's body was to be found to show everyone else that the co-conspirators meant business. A search of defendant's residence in June 1981 uncovered a ring and watch worn by Bostic on the day he disappeared. A search also revealed weapons.

At the close of the hearing the District Court summarily denied defendant's bail. On July 15, 1982, the lower court entered its written memorandum on its denial of bail. The court addressed the propriety of denying bail based on its extra-statutory powers to protect the integrity of its own proceedings, and accepted the evidence presented by special agent Winslow that prospective witnesses in this case had been intimidated and threatened as had Winslow, his partner and their families. It stated that it denied bail based on this evidence. The court's memorandum went on to state that drug trafficking was a sufficient danger to the community to justify the denial of bail.

Defendant has appealed pursuant to Fed. R. App. P. 9(a) on the ground that, if the denial of bail prior to trial is constitutional, there was insufficient evidence for the District Court to find that it was necessary to confine him for the protection of future witnesses. He also asserts that the District Court applied the improper "danger to the community" standard in denying bail.

As a threshold matter we do not consider that the District Court's reference to drug trafficking as a danger to the community necessarily means that it applied that standard. The court in a prior statement had accepted the testimony of Winslow that prospective witnesses in this case, as well as the FBI agents and their families, have been intimidated and threatened. The District Court specifically stated that "(p)remised upon this evidence this court holds that if any of the defendants were released on bail pending trial they would pose an unreasonable risk of danger to other persons...." The court's additional comment regarding the "community at large" ² is gratuitous or an alternative holding and does not destroy the significance of his reliance on the threats against potential witnesses. We thus address the sufficiency of the evidence as to whether court processes would be rendered ineffective if defendant were permitted release on bail.

It is well established that a trial court has the inherent power to revoke a defendant's bail during trial if necessary to ensure orderly trial processes. Bitter v. United States, 389 U.S. 15, 16, 88 S.Ct. 6, 7, 19 L.Ed.2d 15 (1967). Accord, Mastrian v. Hedman, 326 F.2d 708 (8th Cir.), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964); Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961) (Harlan Circuit J.); Carbo v. United States, 288 F.2d 282, 286 (9th Cir. 1961); United States v. Gilbert, 425 F.2d 490, 491 (D.C. Cir. 1969); United States ex rel. Fink v. Heyd, 287 F.Supp. 716 (E.D. La. 1968), aff'd, 408 F.2d 7 (5th Cir. 1969); United States v. Cozzetti, 441 F.2d 344, 350-51 (9th Cir. 1971); United States v. Kirk, 534 F.2d 1262, 1280-81 (8th Cir. 1976) (bond revoked during "proceedings" on ground defendants killed witnesses). See United States v. Wind, 527 F.2d 672, 674-75 (6th Cir. 1975) (pre-trial revocation of bail); United States v. Bigelow, 544 F.2d 904 (6th Cir. 1976); Bloss v. Michigan, 421 F.2d 903, 905 (6th Cir. 1970) (post-trial revocation of bail pending appeal); Wheeler v. United States, 640 F.2d 1116, 1123 (9th Cir. 1981) (post-trial protective order). Interference with government witnesses by a defendant is a sufficient basis for the exercise of the trial court's power to revoke bail during trial. Cozzetti, supra, 351; Kirk, supra, 1280-81; Gilbert, supra, 491-92.

In Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769 (1962), Circuit Justice Douglas acknowledged that this inherent power may even extend to custody in advance of trial when the court's own processes are jeopardized by threats against a government witness. He stated that this inherent power should be exercised, however, only in an "extreme or unusual case. Id. 82 S.Ct. 668. Subsequently, in Wind, the Court held that "courts have the inherent power to confine the defendant in order to protect future witnesses at the pre-trial stage as well as during trial." Wind, supra, 675. This proposition was reaffirmed in Bigelow, supra. See United States v. Andrews, 633 F. 449, 463 (6th Cir. 1980) (Engel, J., dissenting). In Wind the order denying bail was vacated because bail had been denied, in part, on the basis of an in camera proceeding; in Bigelow it was vacated because defendant had not threatened any witnesses or taken any steps or made any threats that would hazard an orderly trial on the date scheduled. In United States v. Smith, 444 F.2d 61 (8th Cir. 1971), the Eighth Circuit affirmed the district court's denial of pre-trial bail without discussion of the facts which would have justified the court's exercise of its inherent powers.

Competing principles are at stake whenever the possibility of the denial of bail is raised. The right to bail is recognized in the eighth amendment and in the Bail Reform Act of 1966, 18 U.S.C. § 3146. A person arrested for a non-capital offense shall be admitted to bail. Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 3 (1951). The traditional right to freedom before conviction permits the unhampered preparation of a defense, serves to prevent the infliction of punishment prior to conviction and preserves the presumption of innocence. See Hudson...