U.S. v. Fernandez-Toledo

Citation737 F.2d 912
Decision Date09 July 1984
Docket NumberNo. 83-5834,L,FERNANDEZ-TOLED,83-5834
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jose Manuelazara Esther Rodriguez-Sensat, Rafael Enrique Franjul, Defendants-Appellees, Carlos Santiago Lahera-Gonzalez, Defendant-Appellee, Cross-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Stanley Marcus, U.S. Atty., Linda Collins Hertz, Jon May, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellant.

Edward R. Shohat, Benedict P. Kuehne, Neal R. Sonnett, Jacqueline Shaprio Budney, Bierman, Sonnett, Shohat & Sale, P.A., Miami, Fla., for defendants-appellees.

John Lazarus, Miami, Fla., Ron Dion, North Miami Beach, Fla., Oscar Rodriguez, Coral Gables, Fla., for Gonzalez.

Appeal from the United States District Court for the Southern District of Florida and On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida.

Before TJOFLAT and CLARK, Circuit Judges, and GOLDBERG *, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

After Federal Bureau of Investigation agents found evidence that the four appellees, Fernandez-Toledo, Rodriguez-Sensat, Lahera-Gonzalez and Franjul, were engaging in drug trafficking and racketeering, the four were arrested and subsequently indicted. A magistrate set bail for Rodriguez and Lahera and denied bail to Fernandez and Franjul. The district judge reviewing the bail determination set bail for Fernandez and Franjul and lowered the amount of bail the magistrate had set for Rodriguez and Lahera. The government, fearing that Fernandez and Franjul would kill a government witness if they were released, sought to appeal the district judge's order setting bail to this court, or, alternatively, petition this court to issue a writ of mandamus to the district judge compelling him to exercise his discretion within the proper legal bounds. We find no jurisdiction over the government's appeal because it relates to an interlocutory matter that the Congress has not authorized this court to hear. We do have jurisdiction, however, of the mandamus action under 28 U.S.C. Sec. 1651 (1982). We issue the writ because we find the district judge to have erroneously limited the scope of his own discretion by his incorrect view of the controlling law.

I.

In September 1983, FBI agents obtained court authority to monitor electronically oral communications of Fernandez, Rodriguez, and Lahera at the Fernandez Construction Company in Miami, Florida. At that time the FBI was using an informant, Moises Perez, a boat captain who allegedly had worked with the defendants to smuggle marijuana, to provide it information concerning the defendants' activities.

The FBI monitored the defendants' conversations with little incident until November 19, 1983. On that date, the agents heard the following conversation at which Fernandez, Rodriguez, Franjul, and Lahera were present. Fernandez and Franjul decided that an informant had penetrated their organization. After some discussion they concluded that Perez was the informant and that they needed to eliminate him. Fernandez described Perez to Franjul and told Franjul where he might be located. Franjul said that they would take Perez to a farm and "tie him up with copper wire because the plastic in the copper wire makes a good fire." After more general conversation regarding the damage the informant could do if left alive, Fernandez stated that "we have to eliminate him quickly" and decided to send "Muzongo" and "Tiffi" to kidnap Perez, take him to "the farm" and kill him.

This conversation was of more significance in light of earlier intercepted conversations showing the likelihood that Fernandez would carry out such threats and the consistency of his modus operandi. Fernandez had stated that his brother had been kidnapped and murdered and that in revenge he had kidnapped and murdered thirty people and burned their bodies because "a dead person found is a dead person investigated, a dead person not found is a dead person not investigated."

The FBI, in view of the danger to Perez, terminated its investigation and obtained warrants for the arrest of the defendants in the early morning of November 20. When FBI agents arrested Franjul, they found an automatic pistol at his residence; Franjul also admitted keeping a 12-gauge shotgun there. Fernandez, when the FBI arrested him, was carrying in his pocket two pieces of paper showing Perez' business address and several telephone numbers for Perez. Fernandez had two handguns and a shotgun in his office, a handgun in his car, and a machine guntype weapon near his garage.

On November 21, the magistrate held a bail hearing regarding Franjul, Rodriguez and Lahera. After hearing testimony from both sides, including testimony of FBI agents regarding the monitored conversations, the magistrate ordered Franjul held without bail, but released Rodriguez and Lahera on corporate surety bonds of $500,000 and $350,000, respectively. On November 23, the magistrate held a second bail hearing regarding Fernandez and Franjul. After hearing extensive testimony and argument, he refused to admit either of the men to bail because they presented too great a threat to the integrity of the trial process.

The four defendants appealed the bail decisions to the district court. They claimed first that the monitored conversations should be suppressed since the government had not given them ten days notice that the evidence would be used against them at the bail hearing. 1 They next claimed that bond should be set for Fernandez and Franjul and lowered for Rodriguez and Lahera.

The judge heard argument of counsel regarding these issues. He reserved ruling on the suppression issue, but reached a decision regarding bail. He first concluded that under the eighth amendment all defendants were entitled to bail and the question before him was what bail was reasonable under the circumstances. He then set bail for Fernandez and Franjul, and reduced the amount of bail required for Rodriguez and Lahera, solely on the basis of counsel's argument. 2

II.

We turn first to whether we have jurisdiction over an appeal by the government from an order of a district judge setting bail. We begin with the basic principle that "in the federal jurisprudence, at least, appeals by the Government in criminal cases are something unusual, exceptional, not favored." Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957). Accordingly, the United States cannot appeal in a criminal case without express congressional authorization. United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir.1979). 3 A government appeal from a bail determination is nowhere so authorized.

The legislative scheme for bail regulation has been set forth in the Bail Reform Act of 1966. 18 U.S.C. Sec. 3141-3148 (1982). That act, comprehensive in nature, gives a judicial officer the discretionary authority, guided by several express considerations, to determine bail and, on application by either side, to amend his determination. Id. at section 3146. 4 The statute then provides for an appeal by the defendant to a judge having original jurisdiction over the offense. Id. at section 3147(a). 5 Then, a defendant may appeal that judge's determination to the appropriate appellate court. Id. at section 3147(b). Thus, the statute contains no authorization for a government appeal of bail conditions. Indeed, by its comprehensive structure and its clear provision for appeals by the defendant, it implicitly rejects such government appeal. 6 We do not end our analysis with this point, however. It is conceivable that some other statute or policy might authorize government appeals of bail determinations.

The government argues that two statutes, 18 U.S.C. Sec. 3731 (1982) (authorizing certain government appeals in criminal cases) and 28 U.S.C. Sec. 1291 (1982) (authorizing appeal of certain interlocutory orders possessing the requisite degree of finality under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), give the government a right to appeal this bail determination. The extent to which these statutes authorize government appeals in criminal cases is not crystal clear. We cannot agree, however, that the statutes, considered together or separately, grant the government the right to appeal in this case.

Section 3731 describes two types of situations in which the government may appeal. The first is a dismissal of an indictment or information; the second is a pretrial decision to suppress evidence. While the statute was originally strictly construed to prohibit government appeals not expressly stated therein, see United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), it was amended in 1971 in part to insert a provision that the applicability of the section should be liberally construed to effectuate its purpose. The purpose, the Supreme Court has noted, was "to remove all statutory barriers to Government appeals and to allow appeals wherever the Constitution would permit." United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1019, 43 L.Ed.2d 232 (1975).

Through the "liberal construction" provision the High Court has extended the government's section 3731 right of appeal beyond the explicit language of the statute. However, the Court has extended the section only to orders having the effect of terminating the litigation. In Wilson, the Court reviewed a post-verdict dismissal of an indictment. The defendant-appellee argued that such an order was in fact a judgment of acquittal not appealable under section 3731. The Court found the order to be reviewable on government appeal, concluding "that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause."

In United States v. Martin Linen Supply Co., 430 U.S....

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