U.S. v. Acevedo-Ramos

• Decision Date: 10 January 1985
• Docket Number: D,ACEVEDO-RAMO,No. 84-2056,84-2056
• Citation: 755 F.2d 203
• Parties: 17 Fed. R. Evid. Serv. 634 UNITED STATES of America, Appellee, v. Hectorefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 203

755 F.2d 203

17 Fed. R. Evid. Serv. 634

UNITED STATES of America, Appellee, v. Hector ACEVEDO-RAMOS, Defendant, Appellant.

No. 84-2056.

United States Court of Appeals First Circuit.

Heard Jan. 10, 1985.

Decided Feb. 25, 1985.

William M. Kunstler, New York City, and Luis F. Abreu Elias, Hato Rey, P.R., for defendant, appellant.

H. Manuel Hernandez, Asst. U.S. Atty., Hato Rey, P.R., for appellee.

Before BREYER, ALDRICH, and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

The appellant, Hector Acevedo Ramos, is now in custody under the authority of the new Bail Act, 18 U.S.C. Secs. 3141 et seq., which allows detention pending trial of persons whose release would pose a serious threat to "the safety" of any other person or "the community". Id. Sec. 3142(e). This appeal does not raise the central question of the constitutionality of the Act's new "preventive detention" provisions, as Acevedo is held in custody for a traditional reason--namely that, if released, he may try to tamper with his trial, by, for example, interfering with witnesses or jurors or otherwise "obstructing justice," see 18 U.S.C. Secs. 1501-1515. We reject Acevedo's central legal claim--that the magistrate and district court cannot rely upon hearsay evidence when denying him release--for the lawfulness of the practice of using hearsay evidence at bail hearings is well established. Nothing in the new Act forbids the use of hearsay, where reliable. The evidence presented at the detention hearing is sufficient to justify the conclusions of both magistrate and district judge that Acevedo ought to be detained. We therefore affirm the district court's decision. 600 F.Supp. 501.

I

On November 15, 1984, a federal grand jury indicted Acevedo and several others charging them with having robbed the Taillex Company of over $600,000 worth of diamonds. See 18 U.S.C. Secs. 2, 1951 (substantive and conspiracy offenses). After Acevedo was arrested, the government sought a pretrial "detention hearing," under the authority of Sec. 3142(f) of the new Bail Act. At the hearing, held before a federal magistrate, the government supported its request for Acevedo's detention with the testimony of an FBI agent, Jeffrey Hill.

Hill stated that he was in charge of the FBI's investigation of the Taillex robbery. He said that the defendant and others had planned the robbery; and that the others had kidnapped the Taillex office manager, had forced him to open the Taillex safe, had taken about 770 diamonds (that had been shipped to Taillex from New York), and had given the diamonds (valued at $620,000) to Acevedo (in return for $135,000). In Hill's words:

Hector Acevedos [sic] conceived the robbery. He conducted surveillances of the plant with another individual, and also of a manager of one of the two plants, knowing that an abduction of one of the managers was going to be one of the methods in which the thing was carried out, and following the actual robbery--receiving the goods--he received them and paid for them. The money was split by the other participants.

Acevedo's counsel cross-examined Hill. The magistrate then found "probable cause" to believe that Acevedo had committed the offenses charged.

Hill went on to testify about Acevedo's alleged "dangerousness." He said that the FBI had evidence that Acevedo had previously participated in several serious crimes--"reliable" evidence that consisted of informant information, statements made by other participants in the crime, and tape recordings. The previous crimes, he said, included: 1) the murder-robbery in 1974 of a jeweler, Leo Dershowitz; 2) the murder-robbery in 1974 of another jeweler, Howard Block; 3) the murder-robbery in 1974 of a third jeweler, Abraham Shafizadeh; 4) a conspiracy to murder and to rob the owner of a gold manufacturing company; 5) an armed robbery of the Conseguera jewelry store in Mayaguez in 1981; 6) the burglary of the Gordon jewelry store in 1980 (and a related kidnapping); 7) an attempt to buy a police file with information about the investigation of the Shafizadeh murder; 8) bribery of jurors in two prosecutions brought against Acevedo based on his attempted purchase of the Shafizadeh investigatory file.

Agent Hill testified about many, but not all, of these incidents in some detail. In most instances he said that his information was based upon interviews with actual (cooperating) participants in the crime. In many instances he said that he had corroboration from tape recordings containing the voices of other participants in the crimes. In the Gordon jewelry store abduction/robbery, for example, he said:

we have got ... a statement of a participant [and we] have got a victim's statement that corroborates exactly letter-by-letter just about how the participant stated it occurred.

In the investigatory file matter, Hill said that Acevedo had tried to buy the Shavizadeh file from an undercover policeman in order to "destroy [the file,] ... to determine the witnesses that he suspected had been found ... and kill those witnesses." He said Acevedo was caught in the act. He said that his information consisted of testimony of the policeman, tape recordings on which Acevedo's voice was heard, and photographs of the actual purchase transaction (which Hill had with him). Hill added that Acevedo had been tried twice for the crime, but, in each instance, the trial had resulted in a hung jury. Hill said that the FBI had information that Acevedo "paid over a hundred thousand dollars" to bribe enough jurors to obtain nonverdicts. This information came from "[FBI Form] 302 testimony [from] agent interview" of persons "reliable in the past" including a "cooperating defendant in another matter."

Acevedo had two attorneys who cross-examined Hill on two occasions. Counsel sought, through cross-examination, to discredit the reliability of Hill's statements (for example, by pointing out that Acevedo had not been convicted of trying to purchase the police file). Counsel were hampered in their efforts to discredit Hill, however, by the government's refusal to allow Hill to name the witnesses whose statements the FBI relied upon or to provide other information that might enable Acevedo to identify them. The government said that such identification might endanger the witnesses' lives. It added that identification might hamper its ongoing investigation into the claimed jury-tampering efforts. And, it said, in respect to the Taillex robbery/probable cause aspect of the case, that it need not provide Acevedo with a detailed picture of the evidence it would use at trial. Defense counsel sought public disclosure of the evidence underlying Hill's testimony; they did not ask the magistrate to review that evidence in camera.

The magistrate initially decided to detain Acevedo pending trial. He concluded in relevant part that

there is a serious risk that the defendant will obstruct or attempt to obstruct justice. No condition or combination of conditions can assure the safety of the Government's witnesses and the community, or insure the proper administration of justice in the defendant's case.

After hearing several character witnesses testifying in Acevedo's favor, the magistrate later reaffirmed that conclusion. Acevedo asked the district court to revoke or to revise the magistrate's order. After considering the transcript and listening to defendant's arguments of law, the district court refused to do so. Acevedo now appeals from that district court decision.

Acevedo, anxious for a speedy decision, did not file separate briefs in this court, but simply presented oral argument. We have nonetheless examined the arguments made below with care, we have read the entire record, including the hearing transcript, and, on the basis of our own research, we are convinced that the decisions of the district court and the magistrate are lawful.

II

We note at the outset two well-established propositions of law. First, the right of an accused person to bail, while critically important, Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951), is not absolute. Where risk of flight is unusually great, a court may deny bail and keep a defendant in custody in order to insure that the trial will take place. United States v. Abrahams, 575 F.2d 3 (1st Cir.) (upholding against statutory and Eighth Amendment challenges pretrial detention without bail where risk of flight was exceptional), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); United States v. Melville, 306 F.Supp. 124, 127 (S.D.N.Y.1969) (bail may be denied in cases presenting exceptional flight risk). Similarly, where the court finds that a defendant's release creates an unusual risk of obstruction of justice, the Constitution and relevant statutes permit detention. United States v. Graewe, 689 F.2d 54 (6th Cir.1982) (per curiam) (upholding pretrial detention without bail where necessary to protect witnesses and judicial process); United States v. Gilbert, 425 F.2d 490, 491-92 (D.C.Cir.1969) ("courts have the inherent power to confine the defendant in order to protect future witnesses at the pretrial stage as well as during trial"); cf. United States v. Bentvena, 288 F.2d 442 (2d Cir.1961) (upholding against statutory and Fifth and Eighth Amendment challenges revocation of bail during trial where necessary to protect integrity of judicial proceedings). The second of these bail exceptions flows logically from the first, for an eventual trial that reflects witness intimidation or jury tampering is as bad as no trial at all.

Second, magistrates and judges traditionally have been permitted to base their decisions, both as to release conditions and as to possible detention, on hearsay evidence, such as statements from the prosecution or the defendants about what they can prove and how. This authority rests primarily upon the need to make the bail decision quickly, at a time when neither party may have fully marshalled all the evidence in...