767 F.2d 1403 (9th Cir. 1985), 84-5350, United States v. Motamedi

Docket Nº:84-5350.
Citation:767 F.2d 1403
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Amir Masoud MOTAMEDI, Defendant-Appellant.
Case Date:August 08, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1403

767 F.2d 1403 (9th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Amir Masoud MOTAMEDI, Defendant-Appellant.

No. 84-5350.

United States Court of Appeals, Ninth Circuit

August 8, 1985

Argued and Submitted Jan. 8, 1985.

Page 1404

Jeffrey Modisett, William Fahey, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Alan J. Weil, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before SNEED, KENNEDY and BOOCHEVER, Circuit Judges.

KENNEDY, Circuit Judge:

The Government moves for reconsideration of our reversal of the district court's pretrial detention order. Because the Government has failed to establish by a preponderance of the evidence that Motamedi poses a flight risk, the motion for reconsideration must be denied.

Motamedi was arrested on charges of conspiracy to export items without a license, in violation of the Arms Export Control Act, 22 U.S.C. Sec. 2778 (1982). The United States Magistrate conditioned his pretrial release upon the posting of a $400,000 secured appearance bond, with special conditions including intensive Pretrial Services supervision, travel restrictions, and surrender of both passport and greencard. Motamedi complied with these conditions and was released.

A month and a half elapsed, and Motamedi was indicted on one count of conspiracy under 18 U.S.C. Sec. 371, and fourteen counts of unlicensed exportation of items attended by false shipper's declarations, under 22 U.S.C. Sec. 2778(c) (1982), 18 U.S.C. Sec. 2(b) (1982). The maximum sentence on the conspiracy count is five years, and the maximum sentence on each of the exportation counts is two years.

Motamedi voluntarily appeared for arraignment at which time the Government requested a detention order on the ground that Motamedi posed a serious risk of flight. Based on the information presented, the magistrate found that Motamedi, an Iranian citizen, was acting as a de facto purchasing agent for the current Iranian government and could return to Iran with impunity; that he maintained large foreign bank accounts with most, if not all, of the deposits being made by the Iranian government; that he persisted in his allegedly illegal exporting activities despite warnings by agents of the United States Customs and Federal Bureau of Investigation that it was illegal to export the items in question; and that the nature and circumstances of the offenses charged are serious. Based on her findings, the magistrate concluded that the Government had demonstrated by a preponderance of the evidence that no condition or combination of conditions would reasonably assure the appearance of Motamedi for further proceedings in the case, and ordered him detained.

Faced with detention, Motamedi moved the district court, pursuant to section 3145(b) of the Bail Reform Act of 1984, 18 U.S.C. Sec. 3145(b) (1984), 1 to revoke the detention order and to set bail. A second hearing was held at which the parties presented the same information that was before the magistrate. The court concluded that the magistrate's factual findings were not clearly erroneous and that it would reach the conclusion that no condition or combination of conditions would reasonably assure Motamedi's appearance, regardless of whether the applicable burden of proof was preponderance of the evidence or clear and convincing evidence. The district

Page 1405

court affirmed the detention order and this appeal followed.

We reversed and ordered release on the same financial terms and conditions as had been granted prior to revocation of bail. The Government moved for reconsideration and clarification of our release order. Without passing on the arguments presented in the Government's motion, we authorized the district court to increase the monetary amount of the bond, with the condition that it be an amount that Motamedi could post. The bond is set at $750,000. Because the parties raise issues of first impression under the Bail Reform Act of 1984, concerning the applicable burden of proof to be met in the district court and the proper standard of review in this court, we heard oral argument and now issue this opinion in support of our order.

In determining the applicable standard of review, we bear in mind that federal law has traditionally provided that a person arrested for a noncapital offense shall be admitted to bail. Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951); United States v. Honeyman, 470 F.2d 473, 474 (9th Cir.1972). Only in rare circumstances should release be denied. Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (1968) (Black, J., in chambers); United States v. Schiavo, 587 F.2d 532, 533 (1st Cir.1978); United States v. Abrahams, 575 F.2d 3, 8 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978). Doubts regarding the propriety of release should be resolved in favor of the defendant. Herzog v. United States, 75 S.Ct. 349, 351, 99 L.Ed. 1299 (1955) (Douglas, J., in chambers); United States v. McGill, 604 F.2d 1252, 1255 (9th Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 708, 62 L.Ed.2d 671 (1980).

Release pending trial is governed by the Bail Reform Act of 1984 which, like its predecessor, the Bail Reform Act of 1966, 18 U.S.C. Secs. 3146-3152 (1982) (repealed October 12, 1984), mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required. 18 U.S.C. Sec. 3142(c)(2) (1984); see Honeyman, 470 F.2d at 474-75; Banks v. United States, 414 F.2d 1150, 1153 (D.C.Cir.1969). The Fifth and Eighth Amendments' prohibitions of deprivation of liberty without due process and of excessive bail require careful review of pretrial detention orders to ensure that the statutory mandate has been respected.

We review the district court's factual findings under a deferential, clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ---, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). In a release determination, however, the conclusion based on those factual findings presents a mixed question of fact and law. The inquiry transcends the facts presented and requires both the consideration of legal principles and the exercise of sound judgment about the values which underly those principles. McConney, 728 F.2d at 1202. In reviewing a district court's order denying pretrial release, we must ensure not only that the factual findings support the conclusion reached, but also that the person's constitutional and statutory rights have been respected. See Truong Dinh Hung v. United States, 439 U.S. 1326, 1328-29, 99 S.Ct. 16, 17-18, 58 L.Ed.2d 33 (1978) (Brennan, J., in chambers); Stack v. Boyle, 342 U.S. at 4, 72 S.Ct. at 3. Accordingly, we may make an independent examination of the facts, the findings, and the record to determine whether the pretrial detention order is consistent with those constitutional and statutory rights. McConney, 728 F.2d at 1202.

This conclusion is supported by the standard of review applied by Supreme Court Justices when reviewing detention orders. See Sup.Ct.R. 35, 50. In light of the important constitutional dimensions involved, the Justices have consistently recognized "a nondelegable responsibility to make an independent determination of the merits of the application." See Truong Dinh Hung, 439 U.S. at 1328, 99 S.Ct. at 17; Mecom v. United States, 434 U.S. 1340, 1341, 98 S.Ct.

Page 1406

19, 20, 54 L.Ed.2d 49 (1977) (Powell, J., in chambers); Harris v. United States, 404 U.S. 1232 at 1232, 92 S.Ct. 10 at 12, 30 L.Ed.2d 25 (1971) (Douglas, J., in chambers); Sellers, 89 S.Ct. at 37-38; Reynolds v. United States, 80 S.Ct. 30, 32, 4 L.Ed.2d 46 (1959) (Douglas, J., in chambers). It would be incongruous for us to apply a more narrow standard of review than that applied by the Circuit Justice. See United States v. Provenzano, 605 F.2d 85, 92 (3d Cir.1979).

We hold that the applicable standard of review for pretrial detention orders is one of deference to the district court's factual findings, absent a showing that they are clearly erroneous, coupled with our right of independent examination of the facts, the findings, and the record to determine whether an order of pretrial detention may be upheld.

We must further determine the Government's burden of proof in establishing risk of flight under the 1984 Act. If the Government may establish such risk by a mere preponderance of the evidence, it is entitled to know that we rule against it in what has become a close case. In the trial court and in this court, the Government must establish risk of flight by a clear preponderance of the evidence, not by the higher standard of clear and convincing evidence. We reach this conclusion from the language and structure of the present statute, considered in light of the rules which pertained at the time of the enactment.

The Bail Reform Act of 1966 authorized pretrial detention without bail only in those cases where conditions could not reasonably assure the defendant's presence at trial. See 18 U.S.C. Sec. 3146(a) (1982) (repealed 1984). In contrast, the 1984 Act permits the pretrial detention of a defendant without bail where it is demonstrated either that there is a risk of flight or no assurance that release is consistent with the safety of another person or the community. Danger to another or to the community is a statutory addition that constitutes a significant departure from the previous law. S.Rep. No. 98-147, 98th Cong., 1st Sess. 1-2 (1983).

Under the 1984 Act, a finding that a person presents a danger to the community must be supported by clear and convincing evidence. 18 U.S.C. Sec. 3142(f) (1984). The statute, however, is silent with regard to the burden of proof governing the finding that a person...

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