U.S. v. Al-Azzawy

• Decision Date: 16 August 1985
• Docket Number: AL-AZZAW,No. 84-5367,D,84-5367
• Citation: 768 F.2d 1141
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Riad Abedefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1141

768 F.2d 1141

UNITED STATES of America, Plaintiff-Appellee, v. Riad Abed AL-AZZAWY, Defendant-Appellant.

No. 84-5367.

United States Court of Appeals Ninth Circuit.

Aug. 16, 1985.

Mark Bonner, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Steve Cochran, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

ON APPELLEE'S PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC.

Before SCHROEDER, FARRIS, and REINHARDT, Circuit Judges.

SCHROEDER, Circuit Judge.

This case raises important issues concerning the timeliness requirements for pretrial detention hearings under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3142. It came to us as an emergency appeal from the district court's order that the appellant be detained prior to trial pursuant to 18 U.S.C. Sec. 3142(e). That provision authorizes the district court to order pretrial detention for an indefinite period in certain limited circumstances. ¹ We entered an order reversing the detention order and requiring the district court to hold a hearing pursuant to section 3142(c) to determine appropriate release conditions. ² The matter is now before us on the government's petition for rehearing.

We based our reversal upon material violations of the timeliness requirements of 18 U.S.C. Sec. 3142(f) which provides that a 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). ³

In this case, the defendant Al-Azzawy was detained for nearly a month before the pretrial detention hearing, and the delay included continuances unauthorized by the statute. The government argues that we should grant rehearing because at least some of the delay was for the convenience of defense counsel. We deny the petition for rehearing.

FACTS

Al-Azzawy was arrested for possession of an unregistered firearm. He appeared before a magistrate the following day, November 20, 1984. The magistrate determined that he was not a citizen of the United States or lawfully admitted for permanent residence, and that he might flee or pose a danger to the community. The magistrate therefore ordered him temporarily detained under 18 U.S.C. Sec. 3142(d). ⁴ That section provides that certain persons, including aliens who are not citizens or permanent residents, and who are also found to be a danger or a flight risk, may be held up to ten days (excluding Saturdays, Sundays and holidays) to allow the appropriate court or government agency an opportunity to take the person into custody. The government did not ask for indefinite detention pending trial pursuant to 18 U.S.C. Sec. 3142(e) at that first, November 20, appearance. A hearing to set bail was scheduled for December 6, 1984 and in the interim Al-Azzawy was indicted on several counts of illegal firearms possessions.

On December 6 at the time set for the hearing to set bail, the government moved for indefinite pretrial detention under section 3142(e). The magistrate overruled Al-Azzawy's opposition to the motion as untimely. Defense counsel then, for reasons which are not clear, indicated that the earliest date on which he could appear for the detention hearing would be December 14, eight days later. The section 3142(f) hearing was therefore set for December 14, a continuance longer than either party could request absent a finding of good cause. The magistrate apparently made no good cause finding.

On December 14, the parties appeared before the district court ready to proceed with the detention hearing. Witnesses were present to testify for both Al-Azzawy and the government. However, the district court indicated through a clerk, and not upon motion of either party, that the evidentiary hearing should be further continued, for one week, to December 21. This was apparently because the district court needed additional time to review Al-Azzawy's motion challenging the constitutionality of the statute. There was no explanation for why the court needed to wait until it had reviewed legal memoranda before it received evidence and considered the relevant factual criteria for pretrial detention pursuant to 3142(e). After Al-Azzawy objected to the continuance based on the timeliness provisions of section 3142(f), and the government attorney stated he had a stock memorandum on the constitutional issues, the hearing was continued until December 17.

The district court, at the December 17 detention hearing, rejected Al-Azzawy's challenge to the constitutionality of pretrial detention. The court then considered witnesses' testimony and proffers from counsel for each party, made the requisite findings and ordered Al-Azzawy detained pending trial. This appeal followed.

DISCUSSION

18 U.S.C. Sec. 3142(f) requires that the hearing for indefinite pretrial detention be held "immediately upon the person's first appearance before a judicial officer" and that continuances of more than five days on motion of the person or three days on motion of the government be for good cause. The "first appearance" would appear to mean the post-arrest hearing prescribed in Rule 5, Fed.R.Crim.P. This is confirmed by the explanation in the Senate Report that provisions for continuance were to permit a limited period of time for preparation for the hearing, "particularly if the defendant was arrested soon after the commission of the offense with which he is charged...." S.Rep. No. 98-225, 98th Cong., 2d Sess. 1, 22, Reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3184, 3205. The statute does not authorize any continuances on the court's own motion.

The record reflects that Al-Azzawy was detained without a hearing between the time of his first appearance before a magistrate, on November 20, and the time of his detention hearing on December 17. The government made no request for pretrial detention under section 3142(e) at his initial appearance. After it did request detention, two continuances followed; one apparently for the convenience of defense counsel, and the other at the prompting of the court.

The statute has strict time requirements in recognition of the need to ensure that persons who have not been convicted of an offense should not be unconditionally deprived of their liberty without a prompt hearing. The legislative history reflects that Congress wanted the time limitation on continuances observed in order to protect the defendant, because he remains detained without a hearing for the term of any continuance.

The period of a continuance sought by the defendant and of one sought by the government is confined to five and three days, respectively, in light of the fact the defendant will be detained during such a continuance. S.Rep. No. 98-225, 98th Cong., 2d Sess. 1, 21-22, Reprinted in 1984 U.S.Code Cong. & Ad.News 3184, 3204, 3205.

In the relatively short period since the Act became effective, the courts have insisted upon strict adherence to the language of the Act. The leading circuit decision is United States v. Payden, 759 F.2d 202 (2d Cir.1985), in which the court reversed a district court detention order because the request for detention was delayed past the time of the first appearance before a judicial officer. ⁵ Accord United States v. O'Shaughnessy, 764 F.2d 1035 (5th Cir.1985). Several district courts have viewed the requirements for a prompt hearing as necessary for due process. See United States v. Mitchell, 600 F.Supp. 164, 168 (N.D.Cal.1985); United States v. Resek, 602 F.Supp. 1126, 1129 (S.D.N.Y.1985); United States v. Acevedo-Ramos, 600 F.Supp. 501, 506, 510 (D.Puerto Rico 1984), aff'd, 755 F.2d 203 (1st Cir.1985).

The Bail Reform Act does not permit a waiver of time requirements by the defendant. Congress, therefore, must have intended enforcement to be at least as strict as that under the Speedy Trial Act, where waiver by the defendant is permitted. We have held that court congestion does not excuse violations of time requirements under the Speedy Trial Act. United States v. Nance, 666 F.2d 353, 358 (9th Cir.), cert. denied, 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982).

We conclude that the procedures under section 3142 of the Act must be strictly followed as a precondition to detention under subsection (e). If the time constraints are violated in any material way, the district court should not order unconditional pretrial detention of the person.

In this case, several distinct events contributed to the delay of nearly a month from the time of defendant's first post-arrest appearance before a judicial officer and the section 3142(f) detention hearing. The government did not request pretrial detention at defendant's first appearance on November 20 as required by subsection (f). The magistrate ordered him detained pursuant to the ten-day detention provision of subsection (d). It was not until the bail hearing on December 6 that the government asked for indefinite pretrial detention under subsection (e).

Neither the statute nor the legislative history addresses "the first appearance" requirement in the context of a person like this appellant who is detained for ten days pursuant to section 3142(d). The First Circuit in United States v. Angiulo, 755 F.2d 969 (1st Cir.1985), cautioned against use of the ten-day detention to delay a hearing. It stated that the purpose of the first appearance requirement, coupled with the limited provisions for continuance, is to guarantee a speedy bail determination in order to prevent a magistrate from ordering a defendant temporarily detained under subsection (d) and then holding the "key 'detention' hearing at some much later time." Id. at 972; see also United States v. Delker, 757 F.2d 1390, 1394 (3d Cir.1985) (import of the clause is...