U.S. v. Chimurenga

• Decision Date: 10 April 1985
• Docket Number: D,No. 1016,1016
• Citation: 760 F.2d 400
• Parties: UNITED STATES of America, Appellant, v. Coltrane CHIMURENGA, a/k/a "Randolph Simms", a/k/a "Rashid Pendergrass", a/k/a "Lionel Jean-Baptiste", a/k/a "John Thomas", a/k/a "Macio McAdams", Defendant- Appellee. ocket 85-1049.
• Court: U.S. Court of Appeals — Second Circuit

Page 400

760 F.2d 400

53 USLW 2553

UNITED STATES of America, Appellant, v. Coltrane CHIMURENGA, a/k/a "Randolph Simms", a/k/a "Rashid Pendergrass", a/k/a "Lionel Jean-Baptiste", a/k/a "John Thomas", a/k/a "Macio McAdams" Defendant- Appellee.

No. 1016, Docket 85-1049.

United States Court of Appeals Second Circuit.

Argued March 15, 1985.

Decided April 10, 1985.

Bart M. Schwartz, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D. of N.Y., Lorna G. Schofield, Kenneth Roth, Stacey J. Moritz, Asst. U.S. Attys., New York City, of counsel), for appellant.

Irving Cohen, New York City (Stevens, Hinds & White, P.C., Lennox S. Hinds, Michele Chandler, Aaron Frishberg, New York City, of counsel), for defendant-appellee.

Haywood Burns, New York City, for amicus curiae Nat. Conference of Black Lawyers.

Barbara Dudley, New York City, for amicus curiae Nat. Lawyers Guild.

John C. Fields, New York City, for amicus curiae Nat. Conference of Black Lawyers, New York Chapter.

Jehnifer Garvey, New York City, for amicus curiae New York Chapter of the Nat. Lawyers Guild.

Arthur Kinoy, New York City, for amicus curiae Randolph Scott-McLaughlin Center for Constitutional Rights.

Phil Nash, New York City, for amicus curiae Asian American Legal Defense & Educ. Fund.

Before MESKILL and CARDAMONE, Circuit Judges, and TENNEY, District Judge. ^*

CARDAMONE, Circuit Judge:

This is an appeal from an order releasing on bail a person charged in a criminal conspiracy to commit armed robbery. It requires us to construe an important section of the Bail Reform Act, which is part of the Comprehensive Crime Control Act of 1984. Without reaching the constitutional issues presented by the Act, ¹ we hold that the district court's conclusion that there were conditions of release that would reasonably assure the safety of the community and defendant's appearance at trial was not clearly erroneous. ²

I

The government appeals pursuant to section 3145(c) of the Bail Reform Act of 1984 (Act), 18 U.S.C. Sec. 3145(c), from an order issued orally on January 29, 1985 by the United States District Court for the Southern District of New York (Carter, J.) permitting defendant Coltrane Chimurenga to be released on bail pending trial. At the time of that order, Chimurenga and seven co-defendants were charged in a one-count indictment with conspiracy to commit armed robbery. A superseding indictment filed in February 1985 charged Chimurenga and the other defendants with a violation of the Racketeer Influenced and Corrupt Organization Act, conspiracy to commit three armed robberies, conspiracy to commit three prison escapes, and various weapons and other offenses.

Defendants were arrested on October 18, 1984. The government moved upon their presentment before United States Magistrate Grubin for their detention without bail pending trial under section 3142(e) of the Bail Reform Act (effective October 12, 1984) on the grounds that defendants presented both an extreme danger to the community and a severe risk of flight. Magistrate Grubin held a two-week hearing pertaining to all eight defendants. The government alleged that Chimurenga was the leader of a successor group to a group of individuals known as the "Family." The "Family" was responsible for an armed robbery in Nanuet, New York, which resulted in the death of an armored truck guard and two police officers. The government's proof included: taped conversations in which Chimurenga instructed his co-defendants on how to kill armored truck guards, if necessary; tapes in which he advised others to cut emotional ties and flee rather than face imprisonment; an arsenal of weapons, ammunition, explosives, and bulletproof vests; physical surveillance evidence linking defendant to a series of planned violent crimes, including the planned prison escape of two members of the "Family"; and evidence of safehouses, false identification, and bank accounts under various aliases. Chimurenga presented only one witness.

In a thorough opinion Magistrate Grubin directed that the seven co-defendants be released under specified conditions, but ordered Chimurenga detained without bail, finding that he presented a risk of flight. The magistrate further found that the government had not met its burden of establishing by clear and convincing evidence that Chimurenga's release would pose an extreme danger to the community. She found it unlikely that he would engage in further violent activity in light of law enforcement agents' discovery of the group's plans. She explained that the "defendants are a highly intelligent, highly educated group of persons who, according to the government, took painstaking care in arduously calculating their goals over a lengthy period of time" and that "[t]hey have no criminal records whatsoever."

Although Chimurenga's response to her questions regarding his continued appearance in court "carried great weight in his favor," she found that he presented a risk of flight based on the "nature and seriousness of the charges against [him], the amount of time he spends away from his family, the evidence at this time against him, [and] the evidence of his philosophy of the necessity of becoming a fugitive in order to continue political struggle and of his alleged contacts with fugitives from other cases." She found no evidence that he was close to his family; she found that he was unemployed, and that his roots were primarily with his co-defendants. The magistrate added that should new evidence come to light, Chimurenga could apply for an amendment of her order.

A month later defendant appealed the detention order to the district court. Judge Carter heard additional evidence during a three-day hearing. Chimurenga submitted a memorandum that included details of his life, and a dozen or so letters from friends, relatives and associates indicating their belief that he would return to court to face the charges against him. Defendant has no criminal record and had been working on a doctorate at Harvard in public policy until his wife, a law graduate, took a job in New York City. Several witnesses testified. Two of them were Chimurenga's brothers from California, each of whom testified that Chimurenga had a strong sense of family. Judge Carter questioned the witnesses himself, probing the sincerity and basis of their belief that Chimurenga would appear for trial. His two brothers offered to post a money bond in the amount of $500,000 as bail, secured by three residences with a claimed value of about $270,000. The district judge thereupon ordered Chimurenga's release pending trial, finding that he was "not convinced that Mr. Chimurenga is any danger of fleeing or any danger to the community." Chimurenga has remained in jail pending appraisal of the property and the recording of the necessary mortgages, both of which, we were advised at oral argument, are imminent. Chimurenga's co-defendants have met their bond requirements and restrictions, including strict curfews and reporting obligations.

II

Section 3142 of the new Bail Reform Act dramatically changes prior law by including "the nature and seriousness of the danger to the community that would be posed by the person's release" as a factor to be considered in determining conditions of pretrial release, and by authorizing detention pending trial where "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." 18 U.S.C. Sec. 3142(e), (g)(4). The change in the law reflects "the deep public concern ... about the growing problem of crimes committed by persons on release" and the recognition that "there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community." S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 U.S.Code Cong. & Ad.News, P.L. 98-473, at 3188-3189. (Senate Report). Congress has determined that "[w]here there is a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate." Id. at 3189.

Under section 3142(f) of the new statute pretrial detention is limited to certain types of cases. A motion seeking such detention is permitted when the charge is for (1) "a crime of violence," (2) "an offense for which the maximum sentence is life imprisonment or death," (3) an offense involving controlled substances carrying a ten-year sentence, or (4) any felony committed by certain previously convicted persons. 18 U.S.C. Sec. 3142(f)(1). Regardless of the nature of the offense charged, a motion seeking pretrial detention is also authorized when there is a serious risk that defendant will flee or obstruct or attempt to obstruct justice. Id. Sec. 3142(f)(2). Before detention may be ordered, a hearing must be held to determine whether any condition or combination of conditions of release will protect the safety of the community and reasonably assure defendant's appearance. The government has the burden of establishing defendant's dangerousness by "clear and convincing evidence." Id. Sec. 3142(f). Factors to be considered in determining whether detention is appropriate are enumerated in the statute and include the nature of the offense, the weight of the evidence against the suspect, the history and character of the person charged, and the nature and seriousness of the risk to the community. Id. Sec. 3142(g).

III

We first consider whether defendant was indicted for a crime of violence under Sec. 3142(f)(1)(A). The government moved under Sec. 3142 for defendant's detention on the grounds that the conspiracy to commit armed robbery was a "crime of violence." Defendant argues that conspiracy, an inchoate crime, does not fall within the...