U.S. v. Byrd, 92-4602
| Decision Date | 07 August 1992 |
| Docket Number | No. 92-4602,92-4602 |
| Citation | 969 F.2d 106 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Jefferson BYRD, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
D. Randy Wagley, Opelousas, La. (Court-appointed), for defendant-appellant.
Josette L. Cassiere, Asst. U.S. Atty., Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., John L. Walker, Asst. U.S. Atty., Lafayette, La., for plaintiff-appellee.
Appeal from the United States District Court For the Western District of Louisiana.
Before JOLLY, JONES and WIENER, Circuit Judges.
In our Order of June 22, 1992, 966 F.2d 1448 (5th Cir.1992), we treated the motion filed by Defendant-Appellant Gary Jefferson Byrd as a motion for expedited appeal, under Federal Rule of Appellate Procedure 9(a) and Loc. Rule 9.1, from an order of the district court that (1) reversed the magistrate judge's order of pre-trial release of Dr. Byrd on conditions specified therein, and (2) committed Dr. Byrd to detention pending trial. In so doing we stated that "[w]ritten reasons for the orders hereinabove granted shall follow as soon as practicable." We offer those reasons now.
Defendant-Appellant Gary Jefferson Byrd, M.D., a psychiatrist residing in Opelousas, Louisiana, was indicted by a federal grand jury on April 16, 1992, for violating 18 U.S.C. § 2252(a)(2). The indictment charged that Dr. Byrd knowingly received through the mail a video tape containing depictions of persons under the age of 18 "engaged in a sexually explicit conduct."
Interestingly, the offense charged in the indictment, i.e., receiving a proscribed video tape through the mail, is alleged to have occurred on July 29, 1987, just three months shy of five years prior to the indictment. There is no indication that during those years the federal prosecutors did anything to move the case to indictment and trial. There are indications in various exhibits, however, that during at least part of that hiatus Dr. Byrd (whose license to practice medicine in Louisiana was revoked after the 1987 incident) was pursued in state civil and criminal court proceedings on claims and charges involving the molestation of young boys. There is no information to suggest that, at any time during those years, Dr. Byrd was ever in detention. To the contrary, it appears that, although Dr. Byrd lost considerable assets and earning power as a result of his legal problems, he continued to remain unincarcerated in Opelousas, working professionally with law firms in that vicinity. It also appears that all state criminal charges relating to indecent behavior with or sexual molestation of young males were ultimately dismissed.
It is against that backdrop that, for reasons not apparent from the limited record before this court, the office of the United States Attorney for the Western District of Louisiana renewed its interest in Dr. Byrd's case, resulting in his indictment on April 16, 1992. An arraignment followed on May 6, 1992, at which the government asked for a detention hearing under 18 U.S.C. § 3142(f). That hearing was held at 9:00 a.m. on May 8, 1992, at Lafayette, Louisiana. The government urged that Dr. Byrd be detained pursuant to § 3142 as a danger to the community, but put on no evidence of community danger. The defense, however, adduced testimony of numerous experts and lay witnesses that tended to negate both the risk of flight and danger to the community. The government stipulated to no risk of flight.
Following completion of that § 3142(f) hearing, the magistrate judge denied detention and ordered Dr. Byrd released on a $100,000.00 unsecured recognizance bond, subject to numerous conditions of release consistent with § 3142(c), including but not limited to travel restriction, periodic reporting to the probation officer, no weapons possession, medical or psychiatric treatment as ordered by the court, surrender of passport, obtaining no passport, and
from any and all social or physical contact whatsoever with any minor child absent the supervision of the minor's legal custodian."
A copy of the government's Friday filing was served on Dr. Byrd's then-counsel around midday the following Monday, May 11, 1992. Late that afternoon Byrd's then-counsel filed a response, pointing out that the government's alleged evidence of paddles and photographs of nude children are "in no way connected" to the federal charge against Dr. Byrd and do not violate any state or federal law; that there was no evidence of continued child molestation against Dr. Byrd but, to the contrary, that there was testimony of witnesses in subsequent instances that no molestation occurred; that there was a recanting of prior testimony of molestation; that there was testimony by a highly credentialed physician that Dr. Byrd is not a pedophile; that Dr. Byrd had never been detained on state charges; and that the pre-trial service officer assigned to the case had recommended release of Dr. Byrd on the conditions set forth in her report. The filing by Dr. Byrd's then-counsel pointed out that as a matter of law the federal crime for which Dr. Byrd had been indicted meets none of the criteria that create presumptions favoring detention under § 3142.
At the hearing on Wednesday, May 13th, the district court listened to audio tapes of the May 8th hearing before the magistrate judge, heard some live testimony, and then, at the close of the hearing, took physical delivery of numerous boxes containing volumes of documents and records seized from Dr. Byrd's residence during execution of the search warrant in July of 1987. Counsel for Dr. Byrd had not been informed that such evidence would be introduced, and was afforded no opportunity to review it. Those records had not been presented to the magistrate judge. They were, however, delivered under seal to the district court, removed to chambers, and reviewed selectively, in camera, for several hours, after which the district court concluded that Dr. Byrd should be detained pending trial as a "danger to the most vulnerable segment of the population, small children."
Concluding that "there are no conditions of release that would adequately protect this segment of the community that is in most need of protection," the district court found, under 28 U.S.C. § 636(b)(1)(A) that the ruling of the magistrate judge was "clearly erroneous as a matter of law." Based on selected portions of the evidence received at the conclusion of the hearing on May 13, 1992, when the defense had no opportunity to view it much less controvert it, the district court reversed the magistrate judge largely on the strength of that "uncontroverted evidence" and ordered Dr. Byrd detained pending trial.
The Bail Reform Act of 1984 1 sets out the procedure for pre-trial release and pre-trial detention. The First Circuit, in United States v. Ploof, 851 F.2d 7 (1st Cir.1988), discussed how the Bail Reform Act is implemented:
The Bail Reform Act directs the judicial officer to order pre-trial release on personal recognizance or upon the execution of an unsecured appearance bond "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community." 18 U.S.C. § 3142(b). If the preceding terms will not reasonably assure appearance or will endanger safety, then the judicial officer is directed to consider a number of conditions to be attached to a release order. 18 U.S.C. § 3142(c). Only "[i]f, after a hearing pursuant to [§ 3142(f) ], the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community," shall the judicial officer order detention. § 3142(e). Section 3142(f), which is central to the present appeal, in turn specifies certain conditions under which a detention hearing shall be held....
Section 3142(f) provides in material part as follows:
(f) Detention hearing. The judicial officers shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of...
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