U.S. v. Clark

• Decision Date: 09 January 1989
• Docket Number: No. 88-5079,88-5079
• Citation: 865 F.2d 1433
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Edward CLARK, a/k/a Eddie Hatcher, Timothy Bryan Jacobs, Defendants- Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1433

865 F.2d 1433

57 USLW 2425

UNITED STATES of America, Plaintiff-Appellee, v. John Edward CLARK, a/k/a Eddie Hatcher, Timothy Bryan

Jacobs, Defendants- Appellants.

No. 88-5079.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1988.

Decided Jan. 9, 1989.

Stephanie Yolanda Moore, Center for Constitutional Rights, William Moses Kunstler, New York City, Bob Warren, Garland, Tex., (Alan Gregory, Christic Institute South, Barry Nakell, Chapel Hill, N.C., on brief), for defendants-appellants.

John Stuart Bruce, Asst. U.S. Atty. (Margaret Person Currin, U.S. Atty., on brief) for plaintiff-appellee.

Before WINTER, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

John Edward Clark, a/k/a Eddie Hatcher, and Timothy Bryan Jacobs appeal from a district court order of detention pending trial on criminal charges. We affirm.

I.

On February 1, 1988 Defendants allegedly took 21 people hostage at gunpoint in a newspaper office in Lumberton, North Carolina, in an effort to focus public attention on what they claimed was discrimination against blacks and Indians. Although they released some of the hostages throughout the day, others were detained for approximately nine hours until Defendants surrendered to federal agents. On February 2 Defendants, accompanied by their attorney, made their initial appearance before a United States Magistrate. They were formally charged with detaining and threatening to kill hostages in violation of the Hostage Taking Act, 18 U.S.C.A. Sec. 1203 (West Supp.1988), and unlawfully making and possessing a sawed-off shotgun in violation of the National Firearms Act, 26 U.S.C.A. Secs. 5861(d), (f) (West 1980). The transcript of the proceedings before the magistrate clearly shows that at the beginning of the hearing Defendants were placed under oath and questioned regarding their educational backgrounds, the possible influence of any intoxicants, their medical conditions, and their ability to understand and participate in the proceedings. Hatcher responded that he had attended college for five years, and Jacobs stated that he was a high school graduate. Both Defendants denied being under the influence of any intoxicants, and indicated that they were able to understand and participate in the proceedings.

When advised of the charges, Defendants indicated that they understood them. The magistrate also advised them of their "right to be considered for bail or release on conditions pending the time this case is in the court." At this point in the proceedings the government attorney moved for detention pending trial and informed the magistrate that "[p]ursuant to my conversations with Mr. Cunningham, [Defendants'] attorney, we agree that it would [be] in the best interest of both his client[s] and the body politic at large that they be detained. Our agreement is, I think, that they will waive a detention hearing." Mr. Cunningham, in the presence of Defendants, represented to the court that this was a correct statement of the agreement. On the basis of this agreement by which Defendants expressed their desire not to be released, the magistrate issued a detention order without receiving additional evidence.

An indictment was returned on February 9 charging Defendants with conspiracy to violate sections 1203 and 5861 and related substantive counts. On February 11 Defendants moved to reopen the detention hearing. The magistrate offered to set the hearing for Friday, February 12, Tuesday, February 16, or Wednesday, February 17. ¹ Defendants' counsel elected to proceed on February 17. After a day-long hearing, the magistrate ordered Defendants held pending trial. In the detailed detention order issued February 18, the magistrate stated his finding that "the defendants have failed to rebut the presumption that no condition of release [would] reasonably assure the safety of any other person and the community."

Defendants immediately moved to reopen the detention hearing to submit new evidence. The magistrate granted the motion and held another hearing on February 19. The magistrate again ordered the Defendants detained, concluding that he could "construct no combination of conditions of release which [would] assure the court of the safety of any other person, including that of the defendants themselves, and the community."

Defendants thereafter moved for review of the detention order by a district judge. After holding a hearing and performing a de novo review, the district court found "that the Magistrate's ruling on detention was supported by clear and convincing evidence at the time it was made and that the evidence support[ed] continuation of the order in force at [that time]." The district court also denied Defendants' subsequent motion to vacate the detention order on the ground that a timely detention hearing was not held.

On appeal, the majority of a three-judge panel reversed the detention order "as fatally flawed by the failure to hold a timely detention hearing," ordering that the district court release Defendants on appropriate conditions. United States v. Clark, No. 88-5079, slip op. at 4 (4th Cir. June 30, 1988), [850 F.2d 690 (table) ]. (unpublished). Pursuant to the mandate of this court, Defendants were released on July 6. However, on August 3, rehearing en banc was granted by a majority of the active members of this court. Subsequently, on August 26, the mandate was recalled and the detention order was reinstated. Jacobs promptly surrendered to authorities. Hatcher refused to do so and remained a fugitive until he was captured a few days prior to the scheduled trial date. Defendants' trial commenced on September 26 and had not concluded by the day of oral argument, during which time Defendants remained in custody. On October 6, this court issued a memorandum order affirming the district court detention order and reserving the right to file this opinion.

II.

Pursuant to the Bail Reform Act, a judicial officer shall detain a defendant pending trial if he finds by clear and convincing evidence "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." 18 U.S.C.A. Secs. 3142(e), (f). Upon motion of the government for detention, "[t]he judicial officer shall hold a hearing to determine whether any 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." Section 3142(f).

Section 3142(f) further provides that:

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. 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.

At the detention hearing, a defendant is "afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." Id. In making a determination on detention, the judicial officer must consider certain factual matters concerning:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person ...; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C.A. Sec. 3142(g). A detention order must "include written findings of fact and a written statement of the reasons for the detention." 18 U.S.C.A. Sec. 3142(i)(1). A defendant ordered detained by a magistrate may seek de novo review in the district court. 18 U.S.C.A. Sec. 3145(b); United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985).

At Defendants' initial appearance the magistrate determined by direct questioning of Defendants that they were able to understand and participate in the proceedings. He specifically informed Defendants of their right to a detention hearing and with the assistance of counsel they waived that right because they desired to remain in custody for their own protection. Based on this waiver, the magistrate entered a short detention order without either conducting an evidentiary hearing pursuant to section 3142(f) or preparing a detailed order of written findings of fact and a written statement of the reasons for detention as required by section 3142(i). Defendants now contend that they are entitled to release arguing that they had an absolute, unwaivable right to a detention hearing within at most five days of their initial appearance, notwithstanding their representation that they did not wish to be released because they feared for their safety. The panel majority agreed and held that Defendants could not waive either the time requirements or the detention hearing itself. Holding further "that the magistrate's failure to hold a detention hearing on February 2, 1988, or within five calendar days thereof constitutes a flat violation of the critical time requirements of 18 U.S.C. Sec. 3142(f)," slip op. at 4 (citation omitted), the panel found that the appropriate remedy was release of Defendants under appropriate conditions. We now hold that both the time requirements and the detention hearing itself provided for in section 3142 are waivable. And, in cases where the requirements of the Bail Reform Act are not properly met, automatic release is not the appropriate remedy. ²

III.

Accepting the premise that "the procedures under section 3142 of the Act must be strictly followed as a precondition to detention," United States v. Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir.1985), the...