U.S. v. O'Shaughnessy, 85-2360

• Decision Date: 18 June 1985
• Docket Number: No. 85-2360,85-2360
• Citation: 764 F.2d 1035
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael O'SHAUGHNESSY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1035

764 F.2d 1035

UNITED STATES of America, Plaintiff-Appellee, v. Michael O'SHAUGHNESSY, Defendant-Appellant.

No. 85-2360.

United States Court of Appeals, Fifth Circuit.

June 18, 1985.

Opinion on Granting of Rehearing En Banc Aug. 30, 1985.

Roland E. Dahlin, II, Thomas S. Berg, Houston, Tex., for defendant-appellant.

Henry K. Oncken, U.S. Atty., James R. Gough, Jr., James J. Powers, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, RANDALL, and TATE, Circuit Judges.

PER CURIAM:

Michael O'Shaughnessy appeals from the district court's order denying his motion for revocation of a pretrial detention order. Because the "first appearance" requirement of 18 U.S.C. Sec. 3142(f) was not met, we REVERSE the order of the district court and REMAND for further proceedings in accordance with the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq.

I.

On March 23, 1985, two fragmentation grenades exploded outside the Houston office of the Bureau of Alcohol, Tobacco and Firearms. In connection with that bombing, on April 23, 1985, the Government indicted Michael O'Shaughnessy and others, charging him with malicious destruction of a building used by a government agency, 18 U.S.C. Sec. 844(f); malicious destruction of a building being used in interstate commerce, 18 U.S.C. Sec. 844(g); and possession of unregistered firearms, 26 U.S.C. Secs. 5861(d) and 5871. The Government arrested O'Shaughnessy on April 23, 1985, on a warrant with bail set at $75,000.

O'Shaughnessy's initial appearance occurred on April 24, 1985. The Government moved to continue bail. The court set bail at $175,000, cash or surety.

O'Shaughnessy's arraignment occurred on April 29, 1985. O'Shaughnessy pleaded not guilty and moved for a bond reduction. The Government moved for pretrial detention under the Bail Reform Act of 1984 (Act). O'Shaughnessy's codefendant, Kenneth Martz, sought a continuance of the pretrial detention hearing. O'Shaughnessy objected to any detention hearing but did not object to the continuance requested by Martz, and the magistrate continued the hearing until May 1, 1985.

Following the detention hearing on May 1, 1985, the magistrate granted the Government's motion, and entered its detention order on May 2, 1985. ¹

The district court conducted a hearing on May 8, 1985, on O'Shaughnessy's motion for revocation of the detention order. The court entered its order denying the motion to revoke the detention order on May 10, 1985. O'Shaughnessy timely appealed that order.

Trial is scheduled for July 1, 1985.

II.

The magistrate detained O'Shaughnessy based on his findings by clear and convincing evidence that O'Shaughnessy committed an act of violence and that he constituted a danger to a prospective witness. O'Shaughnessy does not challenge the sufficiency of those findings on this appeal. Rather, the sole issue focuses on the failure to hold a pretrial detention hearing "immediately upon the person's first appearance before the judicial officer" as required by 18 U.S.C. Sec. 3142(f).

The Act substantially revises the Bail Reform Act of 1966. A Court may now detain prior to trial a defendant who will not flee if no conditions of release will assure the safety of specific individuals or the community. This change, with others, marks a significant departure from the basic philosophy of the 1966 act to use bail laws to assure the appearance of the defendant at judicial proceedings. See S.Rep. No. 225, 98th Cong.2d Sess., reprinted in 1984 U.S.Code Cong. & Ad. News 3182, 3184-3185-3186. Sensitive to pretrial deprivation of liberty yet alarmed by crimes committed by defendants on pretrial release, Congress carefully crafted pretrial detention procedural requirements designed "to provide adequate procedural safeguards" and to "limit pretrial detention to cases in which it is necessary to serve the societal interests it is designed to protect." Id. at 3191.

The Act authorizes a judicial officer to hold a detention hearing only "upon motion of the attorney for the Government" in cases involving a crime of violence; an offense for which the maximum sentence is life imprisonment or death; an offense for which a maximum term of imprisonment of ten years or more is prescribed in specified controlled substance acts; or any felony committed after the person had been convicted of two or more of these offenses or of two or more state or local offenses that would have constituted these offenses under federal jurisdiction. 18 U.S.C. Sec. 3142(f)(1). For cases involving a serious risk that the defendant would flee or obstruct or attempt to obstruct justice, or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror, the judicial officer on his own motion or the Government may move for pretrial detention. 18 U.S.C. Sec. 3142(f)(2). Upon motion, the Act provides:

"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 attorney for the Government may not exceed three days."

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

At the hearing, the defendant has the right to be represented by counsel, court-appointed if he is financially unable to obtain adequate representation. The defendant has the right to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing and to present information by proffer or otherwise. Id.

In determining whether any conditions will reasonably assure the defendant's appearance and the safety of any other person and the community, the judicial officer must take into account criteria specified at 18 U.S.C. Sec. 3142(g). The judicial officer may then order pretrial detention if he finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant and the safety of any other person and the community. 18 U.S.C. Sec. 3142(e) and (f). In conducting the hearing and making these findings, the judicial officer may invoke, if applicable, rebuttable presumptions established by the Act. 18 U.S.C. Sec. 3142(c).

At O'Shaughnessy's first appearance on April 24, 1985, the Government neither moved for a detention hearing nor sought a continuance. The judicial officer did not move for pretrial detention on his own motion. The judicial officer did not conduct a detention hearing. To the contrary, the Government moved to continue bail. Under the Act's unambiguous mandatory language, noncompliance with the "first appearance" requirement of 18 U.S.C. Sec. 3142(f) precludes detention under 18 U.S.C. Sec. 3142(e).

III.

The Government contends that a literal reading of the statute would throw technical obstacles in the path of the Government and the courts, thwarting the congressional attempt to protect witnesses and the community from dangerous individuals. The Government points out potential problems created by the Act's ...