773 F.2d 1479 (8th Cir. 1985), 85-1717, United States v. Maull

Docket Nº:85-1717.
Citation:773 F.2d 1479
Party Name:UNITED STATES of America, Appellee, v. Fleet Wallace MAULL, Appellant.
Case Date:October 09, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1479

773 F.2d 1479 (8th Cir. 1985)

UNITED STATES of America, Appellee,

v.

Fleet Wallace MAULL, Appellant.

No. 85-1717.

United States Court of Appeals, Eighth Circuit

October 9, 1985

Submitted Aug. 20, 1985.

Page 1480

Lawrence J. Fleming, St. Louis, Mo., for appellant.

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

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

Page 1481

JOHN R. GIBSON, Circuit Judge.

The issue presented is whether under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3142, a district court, 1 on review of a defendant's appeal for a reduction of a magistrate's bond order, may on its own motion call for a detention hearing and order a defendant detained pending trial. A panel of this court held that the district court is without the authority to do so. We granted rehearing en banc and we now hold that the district court has such power. [*] We thus affirm the order of the district court.

On May 21, 1985, Fleet Wallace Maull and six others were indicted on charges relating to various violations of federal narcotics and income tax laws. On May 23, 1985, a federal magistrate set Maull's bond at one million dollars. On the same day, Maull moved to amend the conditions of the bond. An evidentiary hearing on the motion was held the following day. On May 28, the magistrate ruled that the evidence at the hearing revealed "that at this time no reduction in bond would reasonably assure the appearance of the defendant" and under 18 U.S.C. Sec. 3142 ordered that the bond remain at one million dollars. Maull then sought review of his motion in the district court. Following a hearing there on May 30 (in which the evidence before the magistrate was stipulated to and which Maull's counsel agreed was a de novo proceeding), the district court found that there was a serious risk Maull would flee and that a detention hearing was necessary to determine whether any condition or combination of conditions in section 3142(c) would reasonably assure his appearance. It conducted the hearing later that day over the vigorous objections of Maull's counsel. The district court invited defendant to make what additional record he chose, but the parties simply stipulated to additional facts.

On May 31 the district court entered an order detaining Maull, finding that, in fact, no conditions set out in section 3142(c) could reasonably assure his appearance at trial. It stated that while section 3142(f) provides that a detention hearing shall be held immediately upon the defendant's first appearance before a judicial officer, Maull's appearance before the magistrate did not deprive the district court of the power under section 3145 to conduct a de novo review with the same options before it as had the magistrate.

Maull then appealed to this court. He argued first that the district court's action was untimely under the provisions of section 3142(f). He also contended that the court exceeded the scope of its authority because the Bail Reform Act of 1984 does not confer jurisdiction on the district court to go beyond review of the conditions of a bail bond to consider whether pretrial detention is appropriate. The panel accepted these arguments in its reversal and remand of the district court's order.

I.

We cannot endorse the panel's interpretation of the Act. First, the district court did not exceed its authority. Maull correctly stated to the district court that its review should proceed de novo. As the Third Circuit has recently noted in United States v. Delker, 757 F.2d 1390 (3d Cir.1985), practice under the former statute, the provisions of the Federal Rules of Appellate Procedure, and the legislative history of the Act support this interpretation. See, e.g., United States v. Thibodeaux, 663 F.2d 520, 522 (5th Cir.1981) (prior review statute conferred "a responsibility on the district court to reconsider the conditions of release fixed by another judicial officer * * * as unfettered as it would be if the district court were considering whether to amend its own action"); see also United States v. James, 674 F.2d 886, 890 (11th Cir.1982); United States v. Zuccaro, 645 F.2d 104, 106 (2d Cir.) cert. denied, 454 U.S. 823, 102

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S.Ct. 110, 70 L.Ed.2d 96 (1981). As Delker points out, nothing in the new act suggests that Congress intended to change this practice:

[T]he legislative history states that Sec. 3145 made only two substantial changes in the law: (1) permitting review of all releases irrespective of whether the defendant could or could not comply with the conditions of release; and (2) permitting the government to seek review and appeal of release decisions to the same extent that such authority is given defendants with respect to detention orders. This suggests that Congress intended the prior practice of de novo review to continue.

757 F.2d at 1394-95 (emphasis added).

Further, Rule 9 of the Federal Rules of Appellate Procedure provides that in an order refusing or imposing conditions of release, the district court must "state in writing the reasons for the action taken." No similar requirement is placed on the magistrate with respect to a release order, 18 U.S.C. Sec. 3142(h), although a detention order must contain written findings of fact and a written statement of the reasons for the detention. 18 U.S.C. Sec. 3142(i)(1). Thus, particularly with respect to release orders, the requirement of Rule 9 could not effectively be met without de novo determinations.

To engage in a meaningful de novo review, the district court must have available the options open to the magistrate. The act requires a progression from one choice to the next in a judicial officer's determination of whether pretrial detention is called for. See United States v. Orta, 760 F.2d 887, 890 (8th Cir.1985) (en banc). Only after determining that release upon personal recognizance or an unsecured appearance bond will not reasonably assure appearance or will endanger the safety of others (see 18 U.S.C. Sec. 3142(b)), may the judicial officer then proceed to consider the conditions set out in section 3142(c)(2)(A)-(N). In reviewing the order of the magistrate, the district court must engage in this same analysis. It was in making this analysis that the district court determined that none of the conditions of section 3142 would assure Maull's appearance. It then had no alternative but to deny bail.

The legislative history of the Bail Reform Act particularly addresses the situation which developed in Maull's request for review:

[I]f a judicial officer determines that a $50,000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer's finding to the contrary, he cannot meet the bond, the judicial officer may reconsider the amount of the bond. If he still concludes that the initial amount is reasonable and necessary then it would appear that there is no available condition of release that will assure the defendant's appearance. This is the very finding which, under 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f).

S.Rep. No. 225, 98th Cong., 1st Sess. 16, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3199 (emphasis added). Maull argued before the magistrate that he could not post a one million dollar bond. When the district court concluded that there was a serious risk of flight, knowing, as it did, of Maull's claim, it acted within the intent expressed by Congress in proceeding to a detention hearing.

Maull argues and the panel found that the action of the district court was untimely, since no detention hearing was held immediately "upon the person's first appearance before the judicial officer." 18 U.S.C. Sec. 3142(f). This position ignores the fact that this was Maull's first appearance before the district court, after it of its own motion called for a detention hearing. 2

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Further, we agree with the Delker court that this portion of the act does not "suggest * * * that a hearing may be had only upon the defendant's appearance before the first judicial officer he or she faces. Rather, the import of the clause is to call for a prompt hearing on the issue of detention." 757 F.2d at 1394. The cases relied upon by Maull and by the panel in support of its action are distinguishable. Both involve multiple appearances before the same judicial officer with motions for detention filed by the government after the first appearance. In United States v. O'Shaughnessy, 764 F.2d 1035 (5th Cir.1985), the court held that the government's failure to move for pretrial detention on the defendant's initial appearance, even though it did so move six days later at his arraignment, made the later detention hearing untimely. The court simply reasoned that its holding was required by the statutory language. Accord United States v. Payden, 759 F.2d 202, 204 (2d Cir.1985) ("Act requires that the detention hearing be held on defendant's first appearance"). Further, the cases overlook, as did the panel in its order, the context of the statute. Section 3142(f) provides:

[t]he judicial officer shall hold a [detention] hearing * * * [u]pon motion of the attorney for the Government or upon this judicial officer's own motion, that involves--

(A) a serious risk that the person will flee;

(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.

The 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.

O'Shaughnessy and Payden...

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