U.S. v. Friedman, 749

• Citation: 837 F.2d 48
• Decision Date: 08 January 1988
• Docket Number: D,No. 749,749
• Parties: UNITED STATES of America, Appellee, v. Arnold FRIEDMAN, Defendant-Appellant. ocket 87-1538.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 48

837 F.2d 48

UNITED STATES of America, Appellee, v. Arnold FRIEDMAN, Defendant-Appellant.

No. 749, Docket 87-1538.

United States Court of Appeals, Second Circuit.

Argued Jan. 5, 1988.

Decided Jan. 8, 1988.

Jerry D. Bernstein, New York City, for defendant-appellant.

Kevin O'Regan, Asst. U.S. Atty. for the Eastern District of New York, Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. for the Eastern District of New York, Brooklyn, N.Y., John Gleeson, Asst. U.S. Atty., of counsel), for appellee.

Before VAN GRAAFEILAND, WINTER and ALTIMARI, Circuit Judges.

PER CURIAM:

Arnold Friedman appeals from Judge Costantino's order of pretrial detention. In a three-count indictment, Friedman was charged with sending and receiving child pornography via the mails in violation of 18 U.S.C. Sec. 2252 (Supp. IV 1986). Because Judge Costantino's implied finding that Friedman posed a risk of flight was clearly erroneous, we reverse and remand.

The three-count federal indictment against Friedman was filed on November 13, 1987. In Count One, he is charged with having received a single pornographic magazine in 1984, and in Counts Two and Three, he is charged with having mailed, and subsequently having had returned to him, another pornographic magazine depicting homosexual acts between an adult and child, all violations of 18 U.S.C. Sec. 2252. The latter mailings were, unbeknownst to Friedman, between Friedman and a United States Postal Inspector. Each count carries a maximum of ten years in prison.

On November 25, 1987, Friedman, a computer teacher, was charged with multiple state offenses alleging that he had sodomized and sexually assaulted a number of his male students between the ages of eight and twelve. In state court proceedings, Friedman was granted bail in the amount of $250,000 cash, a sum he apparently can post by pledging his family home. Subsequently, Judge Costantino ruled that the evidence of Friedman's sexual abuse of children, his collection of pornography, the seriousness of his federal charges and the erosion of support for him in the community justified detention prior to trial. Pursuant to Judge Costantino's order, Friedman has been placed in segregation in the Metropolitan Correction Center.

The Bail Reform Act limits the circumstances under which a district court may order pretrial detention. See United States v. Salerno, --- U.S. ----, 107 S.Ct. 2095, 2102, 95 L.Ed.2d 697 (1987). A motion seeking such detention is permitted only when the charge is for certain enumerated crimes, 18 U.S.C. Sec. 3142(f)(1) (crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or felonies committed by certain repeat offenders), or when there is a serious risk that the defendant will flee, or obstruct or attempt to obstruct justice. Id. Sec. 3142(f)(2).

After a motion for detention has been filed, the district court must undertake a two-step inquiry. See United States v. Shakur, 817 F.2d 189, 194 (2d Cir.1987). It must first determine by a preponderance of the evidence, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir.1987), that the defendant either has been charged with one of the crimes enumerated in Section 3142(f)(1) or that the defendant presents a risk of flight or obstruction of justice. Once this determination has been made, the court turns to whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial. United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed, --- U.S. ----, 107 S.Ct. 562, 93 L.Ed.2d 568 (1986).

In this case, the government concedes that Friedman was not charged with a crime of violence within the meaning of 18 U.S.C. Sec. 3142(f)(1)(A), or any of the other crimes enumerated in Section 3142(f)(1). The government instead relies on the district court's "findings" that Friedman should be detained as a serious risk of flight. Title 18, U.S.C. Sec. 3142(i) requires that when pretrial detention is ordered, "the judicial officer shall --(1) include written findings of fact and a written statement of the reasons for the detention; ..." (emphasis added). Judge Costantino's...