759 F.2d 202 (2nd Cir. 1985), 701, United States v. Payden

• Docket Number: 701,Docket 84-1427.
• Date: 26 March 1985
• Citation: 759 F.2d 202
• Parties: UNITED STATES of America, Appellee, v. Donald PAYDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 202

759 F.2d 202 (2nd Cir. 1985)

UNITED STATES of America, Appellee,

v.

Donald PAYDEN, Defendant-Appellant.

No. 701, Docket 84-1427.

United States Court of Appeals, Second Circuit

March 26, 1985

Argued Dec. 18, 1984.

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Robert M. Simels, New York City, for defendant-appellant.

John K. Carroll, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Stuart Abrams, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before MESKILL, KEARSE and CARDAMONE, Circuit Judges.

MESKILL, Circuit Judge:

This appeal presents an early challenge to the Bail Reform Act of 1984, to be codified at 18 U.S.C. Secs. 3141-3150, and was heard on an expedited basis. Although the briefs address a wide range of issues concerning the Act and its application to Payden, we need consider only one issue. Because the "first appearance" requirement was not met, we reverse the decision of the United States District Court for the Southern District of New York, Edelstein, J.

I

Donald Payden was arrested on August 3, 1984 and charged with conspiracy to violate the federal narcotics laws, 21 U.S.C. Sec. 846 (1982), and distribution and possession with intent to distribute heroin, 21 U.S.C. Sec. 841 (1982). Following his arraignment on these charges, Payden was incarcerated in lieu of $250,000 bail. While Payden's attorney and the government were negotiating Payden's release, the defendant was arraigned on a superseding indictment charging him with organizing and supervising a continuing criminal enterprise, 21 U.S.C. Sec. 848 (1982), a charge carrying a possible life sentence. That arraignment took place on October 17, 1984, five days after the Bail Reform Act took effect, but apparently before notice of its passage or provisions had reached the court or the parties. On October 31, 1984, the government first moved for preventive detention under the Act. The hearing was delayed for two weeks to allow the parties to familiarize themselves with the Act's provisions. Following the hearing the parties were permitted to file briefs addressing specific aspects of the Act and its application.

The court ruled that Payden was to be detained pending his trial. First, the court held that there was "probable cause to believe that [Payden] 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. [Secs.] 801 et seq.)." 18 U.S.C. Sec. 3142(e). This finding of probable cause brought into play the rebuttable presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." Id.

Next the court ruled that Payden's proffered evidence as to his past history and his ties to the community was sufficient to rebut the presumption. Based on evidence presented and proffered by the government, however, the court finally determined that no release conditions were sufficient to insure the safety of the community. Therefore Payden was ordered detained until his trial, which was to be scheduled early in 1985.

The district court's thorough opinion addressed a number of challenges to the Act and its application to Payden. Among them was the "first appearance" requirement. ¹

The Act states:

The [detention] hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the

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attorney for the Government may not exceed three days.

18 U.S.C. Sec. 3142(f) (emphasis added).

The district court ruled that because the Act also provides for hearings in circumstances other than the first appearance, Payden's situation is "within the framework" of the Act. United States v. Payden, 598 F.Supp. 1388, 1392 (S.D.N.Y.1984). Thus, the court concluded that the first appearance requirement is not absolute, and that Payden's detention was proper.

II

The district court's disposition of Payden's challenge to the application of the first appearance requirement was erroneous. Because the terms of the Act mandated its application to Payden at his October 17 hearing rather...