753 F.2d 329 (4th Cir. 1985), 84-5361, United States v. Williams

Docket Nº:84-5361, 84-5362.
Citation:753 F.2d 329
Party Name:UNITED STATES of America, Appellant, v. Melvin WILLIAMS, Appellee. UNITED STATES of America, Appellant, v. Glenn Moore HAWKINS, Appellee.
Case Date:January 17, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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753 F.2d 329 (4th Cir. 1985)

UNITED STATES of America, Appellant,


Melvin WILLIAMS, Appellee.

UNITED STATES of America, Appellant,


Glenn Moore HAWKINS, Appellee.

Nos. 84-5361, 84-5362.

United States Court of Appeals, Fourth Circuit

January 17, 1985

Argued Jan. 9, 1985.

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Robert J. Cynkar, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Carroll W. Weimer, Jr., Third Year Law Student on brief), for appellant.

Nelson R. Kandel, Baltimore, Md. (Christopher N. Kandel, Third Year Law Student on brief) and Howard L. Cardin, Baltimore, Md., for appellees.

Before WINTER, Chief Judge, PHILLIPS and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

The government has appealed a decision by the United States District Court for the Eastern District of Virginia to release defendants Melvin Williams and Glenn Moore Hawkins on cash or surety bail of $200,000 and $100,000 respectively. Our jurisdiction over the pretrial appeal is conferred by section 3145(c) of the recently enacted Bail Reform Act of 1984, part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Sec. 203, 98 Stat.1976, amending 18 U.S.C. Secs. 3141 to 3151 (1982), which permits the government, as well as the detainee, to appeal from a district court order granting or denying bail. Pursuant to Federal Rule of Appellate Procedure 9(a), the appeal has been heard on an expedited basis.


On December 3, 1984 Williams and Hawkins were each indicted 1 by a grand jury for violating the federal narcotics laws. 2 Count I of the indictment alleges that Williams and Hawkins, together with other individuals, attempted to possess cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1982), and, as part of the drug offense, were engaged in an unlawful business activity, in violation of 18 U.S.C. Sec. 1952(a)(3) (1982). 3 Two days after the indictment was issued, defendants were arrested in Baltimore, Maryland. At the initial appearance, the United States requested a detention hearing pursuant to 18 U.S.C. Sec. 3142(f) (as amended ). 4

On December 10, 1984 a detention hearing was conducted by United States Magistrate Klein. At the proceeding, the United

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States introduced the testimony of four government agents, each of whom was subject to cross-examination by defense counsel. Following the hearing, the magistrate entered detailed factual findings on the record. He determined there was probable cause to believe that Williams and Hawkins had committed the crimes set forth in the indictment. The magistrate, however, found no evidence that defendants would flee the jurisdiction if released on bail. Both Williams and Hawkins were found to have strong family ties to the Baltimore community, and each was found to have a good track record for prior court appearances. Nonetheless, bail was not granted because, according to the magistrate, there was clear and convincing evidence that no condition or combination of conditions would "reasonably assure the safety of any other person and the community" if defendants were released before trial. The nature of the offense, defendants' past criminal activities, and the fact that weapons were seized during the arrest, were all considered by the magistrate. See 18 U.S.C. Sec. 3142(g). 5 Pursuant to 18 U.S.C. Sec. 3142(e), defendants were detained.

Thereafter defendants were removed to the Eastern District of Virginia, and motions to obtain judicial review of the magistrate's detention order were promptly filed. See 18 U.S.C. Sec. 3145(b) 6 On December 21, 1984 the district court entertained the motions but because a full transcript of the proceedings before the magistrate had been prepared, did not conduct an evidentiary hearing. The district judge stated that counsel could introduce proffers of evidence 7 and noted that defendants' entitlement to bail would be considered de novo. At the conclusion of the hearing, the district court ruled that defendants were entitled to be released and as noted above fixed bail at $200,000 for Williams and $100,000 for Hawkins.

Recognizing that defendants might promptly post bail, the United States sought a stay of the release order. The district court declined to stay its ruling. An appeal by the United States promptly followed, accompanied by a motion to stay the admissions to bail. On the afternoon of December 21, 1984, a hearing took place (on what was necessarily short notice) to consider the government's motion. On the basis of proffers from the Assistant United States Attorney, I, proceeding as a single judge, convocation of a three member panel being impractical, granted a temporary

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stay until 12 Meridian on December 24, 1984, so that a transcript of proceedings before the district court could be prepared and reviewed. On December 24, 1984, after considering the entire record, I extended the stay until the appeal could be heard, and encouraged counsel for Williams and Hawkins to request expedition of the proceeding.

On December 28, 1984, defendants filed a motion to quash the stay, relying primarily on the development that findings of fact had been issued by the district court subsequent to the time I had, on December 24, 1984, extended the stay. 8 After reviewing those findings, although extremely hesitant to depart from the facts as found by the district court, I concluded that the stay was proper and should remain in effect.


The Bail Reform Act of 1984 ("the 1984 Act") marks a major revision in the standards and procedures governing bail. In response to the "alarming problem" of crimes committed by persons on release, Congress has given the federal judiciary increased authority to withhold bail. See generally S.Rep. No. 225, 98th Cong., 1st Sess. 3-30 (1983) reprinted in 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1. Previously, under the Bail Reform Act of 1966, the exclusive consideration in setting bail was whether the defendant would appear at trial. 9 Now, federal courts have been accorded the power to weigh the risk to the community posed by a defendant's release pending trial.

18 U.S.C. section 3142(e) provides that a defendant may be detained before trial if, after a hearing, a judicial officer determines by "clear and convincing" evidence that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other persons and the community." 10 Among the factors to be considered are: (1) the nature and circumstance of the offense charged; (2) the defendant's history and personal characteristics; (3) whether, at the time of the offense, the accused was on probation or parole; and (4) the nature and seriousness of the danger to any person or the community posed by the individual's release. See 18 U.S.C. Sec. 3142(g). In addition, the 1984 Act sets up two rebuttable presumptions in particular categories of cases. Section 3142(e) provides:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code.

See also 18 U.S.C. Sec. 3142(f)(1). Finally, as noted, the act provides that both the government and the detainee are entitled to appeal a release or detention order. 11

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In light of the breadth of the legislation, in particular the profound transformation in the criminal justice system which undoubtedly will be engendered by the 1984 Act, there is a temptation to be resisted. The temptation is to seize on the present appeal as a vehicle to sketch with a broad brush the particular standards to be applied by district courts. Moreover, as we begin a journey under any new law, a question naturally arises about whether our road will lead us into unconstitutional realms. These are all extremely important considerations, which at some juncture must be faced. However, the law is to be developed case-by-case, with concrete factual situations governing the development of otherwise broad principles of law. Here, we need not gallop frenetically about the countryside.

At oral argument counsel for defendant Hawkins expressed doubts about the constitutionality of the new law. We agree that the 1984 Act poses intriguing constitutional questions. See Bell v. Wolfish, 441 U.S. 520, 534 n. 15, 99 S.Ct. 1861, 1871 n. 15, 60 L.Ed.2d 447 (1979) (Supreme Court left open the question of whether any governmental objective other than assuring an individual's presence at trial may justify pretrial detention); Schall v. Martin, --- U.S. ----, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (upholding constitutionality of New York preventive detention statute as applied to juveniles). However, none of these questions relating to alleged unconstitutionality have been fully briefed or argued by the litigants.

A careful examination of Hawkins' brief indicates that his constitutional attack is narrowly aimed at the rebuttable presumptions created by the statute. That issue is not ripe for consideration on the present record. Although the government has attempted to take advantage of the dangerousness presumption created by 18 U.S.C. Sec. 3142(e) and (f)(1)(C), it has not in the end rested its case on a presumption. To the contrary, the government's position...

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