U.S. v. O'Brien

• Decision Date: 06 December 1989
• Docket Number: No. 89-2033,89-2033
• Citation: 895 F.2d 810
• Parties: UNITED STATES, Appellant, v. Edward O'BRIEN, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 810

895 F.2d 810

58 USLW 2538

UNITED STATES, Appellant, v. Edward O'BRIEN, Defendant, Appellee.

No. 89-2033.

United States Court of Appeals First Circuit.

Heard Dec. 6, 1989.

Decided Feb. 5, 1990.

Robert L. Ullmann, Asst. U.S. Atty., with whom Wayne A. Budd, Boston, Mass., was on brief, for appellant.

Owen S. Walker with whom Susan L. Crockin Boston, Mass., was on brief, for defendant, appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

COFFIN, Senior Circuit Judge.

Defendant Edward O'Brien was a high-ranking federal drug agent for 18 years. He was arrested on August 14, 1989 in a government "sting" operation, and indicted for trafficking in cocaine in violation of 21 U.S.C. Secs. 841 and 846. The day after his arrest, O'Brien appeared before a magistrate and the government moved for his pretrial detention pursuant to 18 U.S.C. Sec. 3142(f)(1) and (2). ¹ The magistrate ordered him detained because of a serious risk of flight. After further hearings, however, the magistrate ordered O'Brien released on the conditions that he wear an electronic monitoring bracelet ² and that he post as security the Virginia home in which he lived. The district court affirmed the magistrate's decision, but added two further conditions: O'Brien would report daily by telephone to the pretrial services office and random unannounced visits would be made to his home by pretrial services officers. Believing the defendant still posed an unacceptable risk of flight, the government appealed the district court's decision to this court. We affirm.

The decision concerning O'Brien's detention was made after lengthy hearings over several months. In her first memorandum and order, issued on August 28, 1989, the magistrate ordered O'Brien to be detained because he presented a serious risk of flight. ³ In making her decision, the magistrate considered the defendant's personal characteristics, including his understanding of the inner workings of law enforcement, his proximity to an international airport, the fact that he had international connections from having worked in France for five years, and his present emotional and financial problems. In addition, she pointed out that the government's case was strong and included a confession from the defendant. She commented that while he might have a defense of outrageous government conduct or entrapment, this defense required reliance on his emotional and financial vulnerability, factors which had contributed to her perception that he posed a risk of flight.

After weighing all the factors, she found that based on the record at that time no conditions or combination of conditions of release would reasonably assure his appearance. She stated, however, that if the defendant could demonstrate that the electronic bracelet is effective to prevent flight and is available where the defendant lives, she would find that he had met his burden of rebutting the presumption of flight. The defendant moved for reconsideration of the order based on evidence of the effectiveness of the electronic bracelet. The magistrate then found that the bracelet was "an effective technology for notifying Pretrial Services and the United States Marshal's office promptly when a defendant has fled. Further, it appears to deter a defendant from attempting to flee." In balancing all the factors considered in her earlier memorandum as well as the evidence concerning the bracelet, the magistrate found that a combination of conditions existed that could reasonably assure his appearance: the use of the electronic bracelet coupled with the posting of the home in Herndon, Virginia in which he lived with his new wife.

The defendant moved to substitute other surety for the Herndon home, including two properties owned in part by different brothers. He argued that the Herndon home belonged to his wife and had never been offered or available to him. He stated that his wife was unwilling to post the home because of an informal agreement with her former spouse that the equity would be held in "moral trust" for her children; she was reluctant to post the home without her ex-husband's approval, which was not forthcoming. O'Brien also claimed that a government lien on the property would hamper further its marketability at a time when sale of the asset was critical. The magistrate rejected this proposed substitution, finding that there were inadequate indications that the defendant's connection to the other properties was sufficient to assure his appearance; she also found that the need for the asset was the very factor that made it good security. The defendant sought reconsideration, and, after an additional hearing concluded with the same result, appealed to the district court the requirement of posting the Herndon home. The district court upheld the magistrate's refusal to accept other security, stating that there were no other conditions or combination of conditions at that time that would reasonably assure defendant's appearance. ⁴

Ten days later, the defendant offered the Herndon home as surety, and the magistrate ordered O'Brien released. She denied a government request for a hearing on the defendant's alleged misrepresentations concerning the availability of the Herndon residence as surety. She further ordered defense counsel to inform the court when Mrs. O'Brien could sign bail papers and attend a hearing concerning her willingness and capacity to serve as third-party custodian.

Following the district court's affirmance, with the added conditions noted supra at 3, the government appealed and sought a stay of release from this court. The stay was granted and an expedited appeal was ordered.

On appeal, the government asserts that no evidence before the court supported a finding that the electronic bracelet deterred flight and the bracelet therefore could not constitute a condition rebutting the presumption of flight. In addition, the government contends that it was improperly denied a hearing to contest the value of the Herndon home as surety.

I.

We first consider our scope of review. The issue has been touched upon but never clearly decided in this circuit since the Bail Reform Act of 1984 was enacted. Prior to that time, Congress specifically had provided that in pretrial detention decisions an order "shall be affirmed if it is supported by the proceedings below." 18 U.S.C. Sec. 3147(b)(2) (repealed). No standard was articulated in the earlier act for decisions concerning release after conviction, 18 U.S.C. Sec. 3148 (repealed), and courts typically applied an independent review. See, e.g., United States v. Provenzano, 605 F.2d 85, 93 (3d Cir.1979). After 1984, however, all detention decisions have been governed by the same statutory provision, 18 U.S.C. Sec. 3145(c), which provides no standard of review.

In a decision following closely on the heels of the Act, this court indicated in passing that the standard for review was whether the order on appeal was "supported by the proceedings below." United States v. Jessup, 757 F.2d 378, 387-388 (1st Cir.1985). The court relied on cases citing the earlier statute and did not refer to or analyze the new statute. In United States v. Bayko, 774 F.2d 516, 520 (1st Cir.1985), we held that post-conviction detention decisions should be given an independent review with deference to the findings of the district court. We noted in dictum in Bayko, 774 F.2d at 518 n. 3, that it was no longer clearly appropriate to apply a different standard of review to pretrial detention decisions, but we made no such holding. We now address the question not reached in Bayko, and find that the standard of review for pretrial detentions is the same.

The circuits have split concerning the standard of review for detention decisions under Sec. 3145(c). Some courts have held that the district court's decision must be reviewed under the clearly erroneous or other highly deferential standard. See United States v. Fortna, 769 F.2d 243, 250 (5th Cir.1985) (supported by the proceedings below); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985) (clearly erroneous); United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985) (clearly erroneous). Most circuits, however, have applied an independent review with some deference to the district court's determination.

Two distinct formulations of the independent standard have been used. Some courts have determined that the appellate court should give an independent review to questions of law and mixed questions of fact and law, but a clearly erroneous review to the factual findings of the district court. See United States v. Hurtado, 779 F.2d 1467, 1470-1472 (11th Cir.1985); United States v. Maull, 773 F.2d 1479, 1487 (8th Cir.1985); United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985); United States v. Hazime, 762 F.2d 34, 37 (6th Cir.1985). Others, including this court in Bayko, 774 F.2d at 520, have held that review under Sec. 3145(c) should be independent but should give deference to the district court's determination. See also United States v. Portes, 786 F.2d 758, 762 (7th Cir.1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985).

As other circuits have noted, the two independent standards are roughly equivalent, despite their apparent differences. See, e.g., Portes, 786 F.2d at 762; Hurtado, 779 F.2d at 1471. As a practical matter, deference to the determination of the trial court in the context of an independent review typically will mean giving the greatest deference to purely factual determinations. ⁵ We therefore consider whether an independent or highly deferential standard best reflects congressional intent for pretrial detention decisions.

We have reviewed the decisions of those courts that have held that the standard is clear error, and we are not persuaded that they adequately address the responsibilities of this court. In Fortna, 769 F.2d at 250, the Fifth Circuit...