U.S. v. Coleman, 85-1732

• Decision Date: 27 November 1985
• Docket Number: No. 85-1732,85-1732
• Citation: 777 F.2d 888
• Parties: UNITED STATES, Appellant, v. Nathaniel COLEMAN, et al.
• Court: U.S. Court of Appeals — Third Circuit

Page 888

777 F.2d 888

UNITED STATES, Appellant, v. Nathaniel COLEMAN, et al.

No. 85-1732.

United States Court of Appeals, Third Circuit.

Submitted Nov. 25, 1985.

Decided Nov. 27, 1985.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Jeanne K. Damirgian, Asst. U.S. Atty., Philadelphia, Pa., for appellant.

A. Richard Gerber, Norristown, Pa., for appellee.

Before SLOVITER, BECKER, and STAPLETON, Circuit Judges.

OPINION SUR MOTION FOR REINSTATEMENT OF DETENTION

SLOVITER, Circuit Judge.

Once again we are faced with an issue arising under the provisions of the Bail Reform Act of 1984, which was enacted as part of the Comprehensive Crime Control Act of 1984. As we have recently had occasion to note, that Act sets forth different standards for release on bail for defendants who are pending trial, those who have been convicted and are awaiting sentencing, and those who have been sentenced and are pending appeal. In United States v. Miller, 753 F.2d 19 (3d Cir.1985), we considered the statutory section dealing with detention pending appeal. See 18 U.S.C. Sec. 3143(b). In United States v. Strong, 775 F.2d 504 (3d Cir.1985), we considered the provision covering release or detention pending sentence. See 18 U.S.C. Sec. 3143(a). In United States v. Delker, 757 F.2d 1390 (3d Cir.1985), we considered the provision of the statute authorizing detention without bail pending trial, 18 U.S.C. Sec. 3142, the same issue before us today.

The applicable portions of that statutory section permit a judicial officer to "order the detention of the person prior to trial" if "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." 18 U.S.C. Sec. 3142(e). The statute further provides:

In a case described in (f)(1), a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the judge finds that--

(1) the person has been convicted of a Federal offense that is described in subsection (f)(1), or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed;

(2) the offense described in paragraph (1) was committed while the person was on release pending trial for a Federal, State, or local offense; and

(3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1), whichever is later.

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code.

(f) Detention hearing.--The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case--

(1) upon motion of the attorney for the Government, that involves--

(A) a crime of violence;

(B) an offense for which the maximum sentence is life imprisonment or death;

(C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or section 1 of the Act of September 15, 1980 (21 U.S.C. 955a); or

(D) any felony committed after the person had been convicted of two or more prior offenses described in subparagraph (A) through (C), or two or more State or local offenses that would have been offenses described in subparagraph (A) through (C) if a circumstance giving rise to Federal jurisdiction had existed; or

(2) Upon motion of the attorney for the Government or upon the judicial officer's own motion, that involves--

(A) a serious risk that the person will flee;

(B) a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.

18 U.S.C. Sec. 3142(e) and (f).

Defendant Nathaniel Coleman was indicted on May 29, 1985 on a two count indictment charging him with conspiracy to violate the civil rights of government witnesses, 18 U.S.C. Sec. 241, and with obstruction of justice, 18 U.S.C. Sec. 1503. The indictment charged that a government witness, Nigel Anderson, had died as a result of the conspiracy charged. On the government's motion for pretrial detention of Coleman, a hearing was held before a United States Magistrate, Edwin E. Naythons, who, at the conclusion of the hearing, entered an order denying Coleman bail. Coleman withdrew his appeal from that order and he remained in custody.

On September 6, 1985, the trial in this matter began before District Judge Charles R. Weiner and continued until September 24, 1985 when the district court declared a mistrial after the jury announced that they were deadlocked on both counts. According to the motion filed by Coleman's attorney in the district court, the jury divided equally with six jurors for conviction and six for acquittal. See Exhibit E to Government's Motion.

On October 2, 1985, Coleman filed a motion in the district court for release on bail. A hearing on the motion was not held until October 30, 1985, but because Coleman's witness did not appear, a second hearing was held on November 6, 1985. On November 20, 1985, the court entered an order granting Coleman's motion and ordering his release on November 25, 1985 or thereafter upon the posting of cash or good bail in the amount of $100,000. As authorized by statute, the government has appealed from the order granting Coleman's release. See 18 U.S.C. Sec. 3731. See also 18 U.S.C. Sec. 3145(c).

This matter comes before this panel of the court as an emergency motion, having been filed on November 25, 1985. The district court's memorandum states that the retrial of Coleman is scheduled to begin Monday, December 2, 1985. The district court apparently declined to stay its order more than several hours. As a result of the court's failure to give us sufficient time to familiarize ourselves with the contentions of the parties and the portions of the record we needed, we entered a stay of the order releasing defendant until further order of this court. We find the district court's action in this connection particularly troubling because the matter was pending before it for more than seven weeks before it decided to release Coleman. In dealing with orders for detention or release under the Bail Reform Act, the district courts must keep in mind that the dispersal of the judges of this court among several states and various locations makes it imperative that a reasonable time be allotted for review of the appeal papers.

Turning now to the merits of the Government's motion, we note that our precedent is clear that in ruling on the motion for release or detention, the court of appeals has the obligation to make an independent determination of such application. See United States v. Strong, supra, at 505; United States v. Delker, 757 F.2d at 1399-1400. We should "give the reasons articulated by trial judges respectful consideration," although if "the trial judge's reasoning, together with the papers, affidavits, and portions of the record as the parties present" do not persuade us, we are free to reach a conclusion different from that of the trial judge. Id. at 1400.

We have before us the contrary conclusions reached by two judicial officers. The magistrate, after holding a hearing before trial, set forth his written findings of fact as well as a full statement of the reasons for the detention. See 18 U.S.C. Sec. 3142(i)(1). He made a detailed review of the evidence upon which he relied to support his conclusions that "[t]here is a serious risk that the defendant will continue to obstruct or attempt to obstruct justice by threatening injury or intimidating or attempting to threaten, injure or intimidate prospective witnesses; " "that there is no condition or combination of conditions set forth in 18 U.S.C. Sec. 3142(c) which will reasonably assure the appearance of the defendant; " and "that there is no condition or combination of conditions set forth in 18 U.S.C. Sec. 3142(c) which will reasonably assure the safety of the community and any other person."

The magistrate relied on the testimony of Agent Matthew L. Mullin, special agent for the Federal Bureau of Investigation, who testified that a confidential informant advised him that Coleman told the informant that Nigel Anderson, a government witness, "would have to be taken care of" and that later Anderson was indeed taken care of. He also referred to evidence that Coleman was charged in state court in Norristown, Pennsylvania in 1968 with blackmail, pointing a deadly weapon, carrying a deadly weapon, an unspecified offense with respect to obscene literature, robbery, and violation of the Drug Devices and Cosmetics Act, and that a directed verdict of not guilty was entered when the government's chief witness, Charles Romano, failed to appear, having departed for California and stated he was fearful of returning.

He also referred to testimony by the Chief of Appeals for the Montgomery County District Attorney that...