U.S. v. Orta

• Decision Date: 29 April 1985
• Docket Number: No. 84-2530,84-2530
• Citation: 760 F.2d 887
• Parties: UNITED STATES of America, Appellee, v. Storie Lynn ORTA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 887

760 F.2d 887

UNITED STATES of America, Appellee, v. Storie Lynn ORTA, Appellant.

No. 84-2530.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 17, 1985.

Decided April 29, 1985.

Donald Wolff, St. Louis, Mo., for appellant.

Sam Rosenthal, Justice Dept., Washington, D.C., for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges.

LAY, Chief Judge.

Storie Lynn Orta appeals from a district

                court 1 order accepting a magistrate's 2 recommendation that Orta be detained before trial pursuant to the pretrial detention provision of the Bail Reform Act of 1984.  See Act of Oct. 12, 1984, Pub.L. No. 98-473, tit. II, ch. I, Sec. 203, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1976, 1978-79 (to be codified at 18 U.S.C. Sec. 3142(e) ). 3   This court en banc heard Orta's appeal on January 17, 1985, and entered an order on January 21, 1985 remanding to the district court its detention order.  This opinion follows as a more complete exposition of the issues involved and the reasoning supporting our order of January 21. 4
                

A. Facts and Procedural History

On November 1, 1984, Storie Lynn Orta was arrested on a federal complaint charging her with conspiracy to possess and intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982). Bail was set at $500,000. At the time of her arrest, Orta was approximately five months pregnant. The grand jury indictment charging Orta was filed on November 8, 1984. On the same day, Orta filed a motion to reduce bond and the United States moved for a pretrial detention hearing pursuant to 18 U.S.C. Sec. 3142(f)(2).

The presiding magistrate held Orta's detention hearing on November 8, 1984. After considering the evidence, the magistrate concluded: "no condition of release for [the] defendant, under 18 U.S.C. Sec. 3142(b), will reasonably assure [her] appearance * * * in court as required and will protect both the public at large and any cooperating individuals from retaliation or intimidation." United States v. Orta, No. 84-209Cr(1), slip op. at 6 (E.D.Mo. Nov. 13, 1984). ⁵

The district court reviewed the magistrate's detention order and denied Orta's motion for rehearing and amendment. ⁶ Orta appealed the district court's denial of her motion to this court. On December 14, 1984, we entered an order remanding Orta's case to the district court and instructing the court:

                The court held the "pre-trial provisions of the Bail Reform Act of 1984 were correctly applied in this case."    United States v. Orta, No. 84-209Cr(1), slip op. at 2 (E.D.Mo. Nov. 21, 1984). 7
                

[To determine] [w]hether defendant's activities may be adequately monitored by the United States Marshals Service and/or by the federal probation office for the Eastern District of Missouri so that defendant is not likely to constitute any danger to the public including witnesses for the prosecution and so that her appearance in court may be assured.

United States v. Orta, No. 84-2530 (8th Cir. Dec. 14, 1984).

The district court directed the magistrate to conduct a second evidentiary hearing and to file a report and recommendation on the remanded issues. After the supplemental hearing, the magistrate determined the new evidence did not contradict the findings and conclusions in his original order, and recommended that Orta be denied bail.

Orta filed objections to the magistrate's report and requested a hearing before the district court. On December 28, 1984, the district court accepted the magistrate's recommendation and found that Orta's activities could not be monitored adequately to ensure compliance. The court reasoned that probation office or Marshal Service surveillance would not be:

adequate or reasonable for the very reason that they cannot guarantee that defendant will not attempt to harm witnesses * * * or will not flee the jurisdiction * * * Anything less than a guarantee against such misconduct, especially where the record suggests that there is a strong likelihood of such misconduct, is neither adequate nor reasonable.

United States v. Orta, No. 84-209Cr(1), slip op. at 1-2 (E.D.Mo. Dec. 28, 1984) (emphasis added).

Orta appealed the district court's order. On January 21, 1985, this court held that the district court had erred in requiring a "guarantee" that Orta would not flee or compromise the community's safety. We remanded Orta's case to the district court for further hearing based on a legal standard requiring a reasonable assurance of Orta's appearance and lack of danger to others.

B. Discussion

Orta argues on appeal that the district court's insistence on a "guarantee" she remain in the jurisdiction and pose no threat to the community is an erroneous interpretation of the pretrial detention provision of the Bail Reform Act of 1984. ⁸ We The Bail Reform Act of 1984, Pub.L. No. 98-473, tit. II, ch. I, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1976 (hereinafter cited as "the 1984 Act"), was a legislative response to growing public concern over increased crime and the perceived connection between crime and defendants released on bail. The legislative history explains that the 1984 Act:

agree, and thus remanded this action to the district court for further consideration under the correct legal standard.

reflect[s] the Committee's determination that Federal bail laws must address the alarming problem of crimes committed by persons on release and must give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released. The adoption of these changes marks a significant departure from the basic philosophy of the [Superseded Bail Reform Act of 1966], which is that the sole purpose of bail laws must be to assure the appearance of the defendant at judicial proceedings.

S.Rep. No. 225, 98th Cong., 1st Sess. 3, reprinted in 1984 U.S.Code Cong. & Ad.News 3182 at 3185-3186.

The major differences between the superseded Bail Reform Act and the 1984 Act pretrial release provisions relevant to this case are the prohibition against using inordinately high financial conditions to detain defendants, and the authorization to consider in determining release conditions or detention the danger a defendant may pose to the community or certain individuals. The two changes eliminate the judicial practice of employing high bail to detain defendants considered dangerous and substitute a procedure allowing the judicial officer openly to consider the threat a defendant may pose. The passage of the pretrial detention provision of the 1984 Act did not, however, signal a congressional intent to incarcerate wholesale the category of accused persons awaiting trial. Rather, Congress was demonstrating its concern about "a small but identifiable group of particularly dangerous defendants as to whom neither the impostion [sic] of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons." S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 Code Cong. & Ad.News at 3189. The legislative history stresses that "[t]he decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial. * * * It is anticipated that [pretrial release] will continue to be appropriate for the majority of Federal defendants." Id., at 7, 12 reprinted in 1984 U.S.Code Cong. & Ad.News at 3189 (emphasis added).

Consistent with the intent expressed in the legislative history, the statutory scheme of 18 U.S.C. Sec. 3142 continues to favor release over pretrial detention. Section 3142 provides four alternatives from which the judicial officer must choose: (1) release on personal recognizance or unsecured appearance bond, ⁹ or (2) release subject to certain conditions, ¹⁰ or (3) temporary detention to permit, among other things, revocation of conditional release, ¹¹ or (4) pretrial detention. ¹² The judicial officer most often will be deciding between the first and the second alternatives. The statutorily mandated progression from one choice to the next is critical: a judicial officer cannot determine that a detention hearing and the possible imposition of pretrial detention is appropriate merely by determining that release on personal recognizance will not "reasonably assure" the defendant's appearance at trial or "will endanger" the community. The judicial officer must also consider whether one of the codified conditions or any combination of In Orta's case, the magistrate did not follow the statutory progression from release on personal recognizance to conditional release because the government moved upon Orta's arrest for an evidentiary hearing to consider the appropriateness of her release. ¹⁵ Although the hearing is designated a "detention hearing," the appellation is not completely accurate. The purpose of the hearing is to determine whether any of the release options available to defendants not immediately subject to a detention hearing will satisfy the statutory safety and appearance concerns. ¹⁶ Only if the government ¹⁷ shows by clear and convincing evidence ¹⁸ that no release condition or set of conditions will reasonably assure the safety of the community and ¹⁹ by a preponderance of the evidence ²⁰ that no condition or set of conditions under subsection (c) will reasonably assure the defendant's appearance can a defendant be detained before trial.

                the conditions 13 will "reasonably assure" the defendant's appearance and the safety of the community. 14   The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention
                

In this case, the district court erred in interpreting the "reasonably assure" standard set forth in the statute as a requirement that release conditions "guarantee" community safety and the defendant's...