U.S. v. Himler
| Decision Date | 01 August 1986 |
| Docket Number | No. 86-3371,86-3371 |
| Citation | 797 F.2d 156 |
| Parties | UNITED STATES of America v. Harry HIMLER, Jr., Appellant. . Submission Date |
| Court | U.S. Court of Appeals — Third Circuit |
George E. Schumacher, Federal Public Defender, Thomas S. White, Asst. Federal Public Defender, Pittsburgh, Pa., for appellant.
J. Alan Johnson, U.S. Atty., Constance M. Bowden, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Before GIBBONS, STAPLETON and MANSMANN, Circuit Judges.
In this appeal from a detention order entered by the district court, we must consider whether, under the Bail Reform Act of 1984, an accused taken into custody may be detained prior to trial based on danger to the community where the detention hearing was justified only by an alleged serious risk of flight pursuant to 18 U.S.C. Sec. 3142(f)(2)(A).
The district court ordered that the defendant be detained prior to trial because of the danger of the defendant's recidivism in crimes involving the use of fraudulent identification. We hold that this is not the type of danger to the community which will support an order of detention under the Bail Reform Act of 1984. Because we also find that this record will not support a finding that no conditions of release will guarantee the defendant's appearance in court, we will reverse the order of the district court.
On May 7, 1986, a criminal complaint was filed charging Harry Joseph Himler, Jr. with crimes involving the production of a false identification document, namely, an international driving permit. At the defendant's initial appearance the government requested a surety bond in the amount of $25,000. Upon being informed that there was an outstanding Florida warrant for the defendant's arrest as well as a detainer lodged against him by the Pennsylvania Department of Probation and Parole, the magistrate ordered that the defendant be detained. Temporary detention under such circumstances is authorized by statute in order to give other officials time to take a defendant into custody. 18 U.S.C. Sec. 3142(d) (Supp. II, 1985).
At a preliminary examination on May 14, 1986, the magistrate found probable cause to believe that the defendant had produced false identification while processing an application to replace allegedly lost travelers checks. The government moved for a detention hearing pursuant to 18 U.S.C. Sec. 3142(f) asserting the risk that the defendant would flee.
Based on the evidence presented at the hearing on May 19, 1986, the magistrate found that in 1981 the defendant had been convicted of larceny in Ohio and had been released on two and one-half years probation. The magistrate also found that at the time of the offense currently charged the defendant was on probation from a conviction of multiple counts of possession of false identification. These findings, combined with evidence of the circumstances leading to the current charges, led the magistrate to conclude that the defendant's considerable experience in adopting a false identity posed a serious risk of flight as well as the danger that he would continue to engage in similar criminal activity. Therefore, the magistrate ordered that the defendant be detained pending trial.
The defendant filed a motion for review of the detention order pursuant to 18 U.S.C. Sec. 3145(b). At a de novo detention hearing on June 3, 1986, the district court found that at the time of the alleged offense the defendant was on probation from convictions of grand theft in Ohio and of unlawful use of credit cards and unlawful possession of forged or counterfeited driver's licenses in Florida. The court also found that there was an outstanding arrest warrant for the defendant on charges of grand theft in Florida. These findings, together with evidence supporting the current charges, led the district court to conclude that the defendant's release on conditions would not assure the safety of the community. Unlike the magistrate, the district court made no finding regarding risk of flight.
The defendant appeals the detention order, arguing that the Bail Reform Act of 1984 does not authorize his detention based on the danger that he will continue to use false identification to defraud the community.
The hallmark of the Bail Reform Act of 1984 is its requirement that an arrested person be admitted to bail only under conditions which will "reasonably assure both the appearance of the person as required and the safety of any other person and the community." See 18 U.S.C. Sec. 3142(b), (c) (Supp. II, 1985).
The 1984 Act marks a radical departure from former federal bail policy. Prior to the 1984 Act, consideration of a defendant's dangerousness in a pretrial release decision was permitted only in capital cases. See Bail Reform Act of 1966, 18 U.S.C. Sec. 3148 (1982), repealed by Bail Reform Act of 1984, Pub.L. No. 98-473, 98 Stat.1976 (1984). In all other cases, bail and other conditions of release were imposed solely to assure the appearance of the accused in court.
Under the new statute judicial officers must now consider danger to the community in all cases in setting conditions of release. See 18 U.S.C. Sec. 3142(g)(4) (Supp. II, 1985). Furthermore, a defendant's dangerousness may serve as a basis for pretrial detention. See 18 U.S.C. Sec. 3142(e) (Supp. II, 1985). If a judicial officer finds that release on personal recognizance or unsecured appearance bond will not provide the requisite assurances, the judicial officer must impose the least restrictive bail conditions necessary to assure appearance and safety.
In narrowly-drawn sections, the Act provides statutory authority for the judicial officer to consider whether, in certain specific cases, no conditions of release will assure appearance and safety and whether the defendant may then be detained pending trial. 18 U.S.C. Sec. 3142(e), (f) (Supp. II, 1985).
In a nutshell, a detention hearing, i.e., for considering detention as opposed to setting conditions of release, may be held upon an appropriate motion in a case involving:
(1) a crime of violence, 18 U.S.C. Sec. 3142(f)(1) (Supp. II, 1985);
(2) a crime punishable by life imprisonment or death, Id.;
(3) a federal narcotics offense with a potential sentence of ten years or more, Id.;
(4) any felony following convictions for two or more offenses in the nature of the above, whether state or federal, Id.;
(5) a serious risk of flight, 18 U.S.C. Sec. 3142(f)(2) (Supp. II, 1985); or
(6) a serious risk that the person will attempt to obstruct justice or to threaten, injure or intimidate a witness or juror. Id.
Our review of a detention order is plenary. United States v. Delker, 757 F.2d 1390, 1399 (3d Cir.1985). A court of appeals must make an independent determination with respect to the statutory criteria for detention or release. United States v. Perry, 788 F.2d 100, 104 (3d Cir.1986). However, Rule 9 of the Federal Rules of Appellate Procedure dictates that an appeal shall be heard upon such papers, affidavits and portions of the record as the parties shall present. Thus, the courts of appeals are not free to ignore the trial court's supporting statement of reasons for the action taken. Delker, 757 F.2d at 1400. However, if after careful review of the record and of the trial court's reasoning, the court of appeals independently reaches a different conclusion, the court of appeals may amend or reverse the detention decision. Id.
The district court detention order was based on the finding, after a hearing, that no conditions of release will reasonably assure the safety of the community. The record before us supports a finding that there is a danger that the defendant will, if released, commit another offense of the type for which he has been previously convicted and with which he is presently charged, namely crimes involving the use of false identification.
The defendant does not contest the district court's findings of fact. He argues that the established facts do not, under the statute, support a finding that there are no release conditions which would assure the safety of the community.
Specifically, the defendant asserts that his detention is not authorized by statute, citing our opinion in United States v. Perry, 788 F.2d 100 (3d Cir.1986) for the proposition that preventive detention is limited to cases involving the serious offenses which will support a motion for a detention hearing.
We held in Perry that while there is a substantive liberty interest in freedom from confinement, that interest is not violated by Section 3142(e) in authorizing the pretrial detention of "persons found to be dangerous in a very real sense; distributors of dangerous drugs and users of firearms in the commission of crimes of violence." 788 F.2d at 113. Since Perry involved a statutorily-specified crime, we did not address the question, presented here, of whether the statute authorizes pretrial detention upon proof of danger to the community other than from those offenses which will support a motion for detention. We now hold that it does not.
The government argues that the statute does not limit detention hearings to those cases specified in subsection (f) and that the only purpose of subsection (f) is to specify those cases in which a hearing is mandated. The government further asserts that once a hearing is authorized any evidence of danger to the community from recidivism may be relied upon to justify pretrial detention. We disagree.
If Congress had intended to authorize pretrial detention in all cases where recidivism appears likely it could easily have done so. The legislative history of the Bail Reform Act of 1984 makes clear that to minimize the possibility of a constitutional challenge, the drafters aimed toward a narrowly-drafted statute with the pretrial detention provision addressed to the danger from "a small but identifiable group of particularly dangerous defe...
To continue reading
Request your trial
-
US v. Sloan
...the burden of proof by a preponderance of the evidence. United States v. Portes, 786 F.2d 758, 765 (7th Cir.1985); United States v. Himler, 797 F.2d 156 (3rd Cir.1986); United States v. Leibowitz, 652 F.Supp. 591 (N.D.Ind.1987). With respect to risk to the safety of any other person or the ......
-
U.S. v. Giordano, 0580061CR.
...bail and other conditions of release were imposed solely to assure the appearance of a defendant at trial. E.g., United States v. Himler, 797 F.2d 156, 159 (3d Cir.1986). Congress intended to expand the number of cases where defendants could be detained before trial based upon dangerousness......
-
Zavala v. Wal Mart Stores Inc.
...from the traditional preponderance of the evidence standard in the absence of express direction from Congress.” United States v. Himler, 797 F.2d 156, 161 (3d Cir.1986). We hold that plaintiffs must demonstrate by a preponderance of the evidence that members of a proposed collective action ......
-
KLEINBART v. U.S.
...329, 330-31, 785 F.2d 327, 328-29, cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986); see also United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986) (listing federal circuits which before Salerno decided that government's burden in demonstrating risk of flight is preponder......
-
Pretrial release or detention
...release pending appeal determination); United States v. Schenberger, 498 F. Supp. 2d 738 (D.N.J. 2007) But see United States v. Himler, 797 F.2d 156, 160 (3d Cir. 1986) (potential recidivism involving use of fraudulent identification not type of danger that supports detention order) PRETR......
-
The Constitutional Case for Clear and Convincing Evidence in Bail Hearings.
...1984), with 18 U.S.C. [section] 3142. (83.) See United States v. Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985); United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986); United States v. Fortna, 769 F.2d 243, 250 (5th Cir. 1985); United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985); ......
-
Bail and Detention in Federal Criminal Proceedings
...(5th Cir. 1992). 55. Id. at 109. 56. 18 U.S.C. § 3142(f). 57. 18 U.S.C. § 3142(e). 58. 18 U.S.C. § 3142(f). 59. United States v. Himler, 797 F.2d 156 (3d Cir. 1986); United States v. Vortis, 785 F.2d 327 (D.C.Cir. 1986); United States v. Medina, 775 F.2d 1398 (llth Cir. 1985). 60. United St......
-
Discrimination, coercion, and the Bail Reform Act of 1984: the loss of the core constitutional protections of the excessive bail clause.
...S. REP. No. 98-225, at 12-13 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3195-96). (126.) See id. at 8-9 (citing United States v. Himler, 797 F.2d 156, 160 (3d Cir. (127.) See id. at 8 n.42 (citing United States v. Reynolds, 956 F.2d 192 (9th Cir. 1992)) ("[A] defendant convicted of mail f......