U.S. v. Leisure
| Decision Date | 01 August 1983 |
| Docket Number | No. 83-1594,83-1594 |
| Parties | UNITED STATES of America, Appellee, v. Paul John LEISURE, a/k/a John Paul Leisure, Anthony J. Leisure, David R. Leisure, John F. Ramo, Ronald Joseph Broderick, Charles M. Loewe and Steven Wougamon, Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Irl Baris, St. Louis, Mo., for appellants.
Frederick Buckles, Asst. U.S. Atty., St. Louis, Mo., for appellee.
Before BRIGHT and McMILLIAN, Circuit Judges, and NICHOL, * Senior District Judge.
Appellants Paul John Leisure, Anthony J. Leisure, David R. Leisure, John F. Ramo, Ronald Joseph Broderick, Charles M. Loewe, and Steven T. Wougamon appeal from an order entered in the District Court 1 for the Eastern District of Missouri denying their joint motion for reduction of bail. Appellants and Robert M. Carbaugh 2 were charged in an indictment filed on April 13, 1983, with participating in a pattern of racketeering activity in violation of 18 U.S.C. Sec. 1962(c) (Count I), conspiracy to conduct racketeering activity in violation of 18 U.S.C. Sec. 1962(d) (Count II), obstruction of justice in violation of 18 U.S.C. Sec. 1510 (Counts III and IV), and making and possessing a destructive device in violation of 26 U.S.C. Secs. 5861(f), 5871 (Counts V and VI). 3 The maximum penalties for the offenses charged are substantial: Counts I and II (racketeering), twenty years imprisonment and $25,000 fine; Counts III and IV (obstruction of justice), five years imprisonment and $5,000 fine; and Counts V and VI (destructive device), ten years imprisonment and $10,000 fine.
Following appellants' arrests on warrants issued pursuant to the indictment and their appearance before a magistrate, the district court set bail for each appellant in the following amounts:
Paul John Leisure $2,000,000 cash
Anthony J. Leisure $2,000,000 cash
David R. Leisure $2,000,000 cash
John F. Ramo $1,000,000 cash
Ronald Joseph
Broderick $1,000,000 cash
Charles M. Loewe $1,000,000 cash
Steven T. Wougamon $1,000,000 cash
Appellants at that time were remanded to the custody of the United States Marshal and have been confined in the City Jail in Cape Girardeau, Missouri.
On April 18, 1983, appellants were arraigned before the magistrate 4 and entered pleas of not guilty. Appellants also filed a joint motion to reduce bail. Immediately after arraignment the magistrate held a hearing on the motion to reduce bail. One of the investigating law enforcement officers testified on direct and cross-examination. Appellants were present and represented by counsel. Appellants were given an opportunity to present evidence but did not testify. In addition, reports prepared by the United States Probation Office containing background information about appellants were presented to the magistrate for consideration. The government opposed the motion for reduction of bail, citing the nature and circumstances of the offenses charged, the weight of the government's evidence, and the murder of an individual who appellants allegedly suspected might have become an informant and government witness against them. 5
The magistrate denied the motion for reduction of bail on April 20, 1983. United States v. Leisure, No. 83-81-Cr(C) (E.D.Mo. Apr. 20, 1983). Appellants then filed a motion in district court to amend the order denying reduction of bail. The district court denied the motion to amend and affirmed the order denying reduction of bail on April 29, 1983. Appellants filed a notice of appeal pursuant to 18 U.S.C. Sec. 3147(b) and Fed.R.App.P. 9(a) and a motion to expedite the appeal on May 4, 1983. Oral argument was heard on May 9, 1983. For reversal appellants argue that any allegations that appellants pose a serious danger to government witnesses are not relevant under 18 U.S.C.A. Sec. 3146(a) (West Supp.1982); if such allegations are relevant, the evidence of danger was insufficient; and setting bail in the amount of $1 million cash and $2 million cash is excessive and violates the eighth amendment of the Constitution. Appellants also argue that because they are presently confined in Cape Girardeau, some distance from St. Louis, which is the location of the offenses charged and of appellants' counsel, appellants are unable to assist their counsel in the investigation and preparation of their defense. For the reasons discussed below, we grant the motion to expedite the appeal, reverse the order of the district court denying appellants' motion to reduce bail and order appellants released pending trial upon satisfaction in full of the conditions set forth below.
As stated in Stack v. Boyle, 342 U.S. 1, 4-5, 72 S.Ct. 1, 3-4, 96 L.Ed. 3 (1951) (emphasis in original, citations omitted),
federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as an additional assurance of the presence of an accused. Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is "excessive" under the Eighth Amendment.
See 18 U.S.C.A. Sec. 3146(a) (West Supp.1982) (amended by the Victim and Witness Protection Act of 1982, Sec. 8, Pub.L. No. 97-291, 96 Stat. 1248, 1257 (1982) (codified at 18 U.S.C.A. Sec. 3146(a) (West Supp.1982)); 6 Fed.R.Crim.P. 46(a). "The test for excessiveness is not whether [the] defendant is financially capable of posting bond but whether the amount of bail is reasonably calculated to assure the defendant's appearance at trial." United States v. Beaman, 631 F.2d 85, 86 (6th Cir.1980), citing United States v. Wright, 483 F.2d 1068, 1070 (4th Cir.1973). In particular, the amount of bail should not be used as an indirect, but effective, method of ensuring continued custody. As noted in United States v. Leathers, 134 U.S.App.D.C. 38, 412 F.2d 169, 171 (1969) (per curiam),
the setting of bond unreachable because of its amount would be tantamount to setting no conditions at all. Conditions which are impossible to meet are not to be permitted to serve as devices to thwart the plain purposes of the [Bail Reform] Act, nor are they to serve as a thinly veiled cloak for preventive detention.
Here, the magistrate set the amount of bail at $1 million cash and $2 million cash. The magistrate stated:
The Court believes that were the defendants released, there is substantial likelihood that retribution would be attempted against witnesses against them. The pendency of capital offenses in the Missouri state court is another factor creating a substantial incentive on the part of the defendants to flee.
It is the opinion of the [court] that, with regard to all above-named defendants, there exists an extreme likelihood of flight.
We conclude the district court abused its discretion in refusing to reduce the appellants' bail. All of the evidence adduced before the magistrate indicated that appellants would appear at their trial. We do not think the very substantial cash bonds represent a reasonable calculation of the conditions necessary to assure the appellants' appearance at trial. 7
The evidence presented at the hearing before the magistrate shows that appellants have either lived in St. Louis all their lives or for many years; their immediate families live in St. Louis; each appellant, with the exception of Steven T. Wougamon, owns real property in St. Louis; each appellant is employed or is self-employed in St. Louis; each appellant either has not been on bond or has appeared in court when required to do so in the past. Appellants Paul John Leisure, Anthony J. Leisure, Broderick, and Loewe each have been arrested one or more times but have no convictions. Appellants David R. Leisure, Ramo and Wougamon each have some kind of criminal record, have been released on bond in the past and appear to have never failed to appear at court proceedings. These factors support our conclusion that bail in an amount substantially less than the amounts set by the district court would be reasonably calculated to assure appellants' appearance at trial.
The nature and circumstances of the offense charged and the weight of the evidence against the accused are also factors to be considered. Appellants stand accused of very serious and extremely violent crimes. It appears that the government's evidence depends in substantial part upon the testimony of an unindicted coconspirator who has become a government witness. These factors are very disturbing, in particular the allegations that appellants threatened one possible government witness and killed another individual who appellants suspected might have become a government witness. The right to bail in a noncapital case is not literally absolute, and case law has recognized that the courts have the inherent power to ensure orderly trial processes and to protect government witnesses, before trial and during trial, by denying pretrial release on bail in extraordinary circumstances. See United States v. Gilbert, 138 U.S.App.D.C. 59, 425 F.2d 490, 491-92 (1969). Accord United States v. Graewe, 689 F.2d 54, 56-57 (6th Cir.1982) ...
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Table of Cases
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