U.S. v. McConnell

• Decision Date: 30 March 1988
• Docket Number: No. 87-6284,87-6284
• Citation: U.S. v. McConnell, 842 F.2d 105 (5th Cir. 1988)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Richard McCONNELL, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 105

842 F.2d 105

UNITED STATES of America, Plaintiff-Appellee, v.John Richard McCONNELL, Defendant-Appellant.

No. 87-6284

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 30, 1988.

Rehearing and Rehearing En Banc Denied May 9, 1988.

Dick DeGuerin, Roland E. Dahlin II, Tom Berg, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

John Patrick Smith, Asst. U.S. Atty., Scott Woodward, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Contending that the district court required an excessive amount of bail as a condition of pretrial release, John Richard McConnell appeals.He also seeks a release from incarceration pending appeal.We find no violation either of the eighth amendment or of 18 U.S.C. Sec. 3142(c) in the setting of the amount of bail.The motion for release pending appeal is denied.

Background

McConnell and several codefendants were indicted by a grand jury in the Southern District of Texas on October 29, 1987.McConnell is charged with two counts of bank fraud, 18 U.S.C. Sec. 1344, and two counts of conspiracy to commit bank fraud, 18 U.S.C. Sec. 371.These charges arise out of an alleged scheme which involved sums in excess of four million dollars.Each count carries a maximum penalty of five years imprisonment and a fine of $250,000.McConnell learned of the indictment within two days of its return.His attorney promptly contacted federal authorities and attempted to negotiate a plea in conjunction with McConnell's surrender, but the prosecutor declined to negotiate with a fugitive.On November 17, 1987 McConnell voluntarily surrendered by informing the authorities of his arrival in Houston on a flight from Mexico, traveling on tickets purchased through a travel agency in Canada.McConnell was taken into custody at Customs.

On November 18, 1987 McConnell was brought before a federal magistrate who ordered his detention pending trial.The magistrate concluded that McConnell posed a risk of flight and no conditions of release envisioned by 18 U.S.C. Sec. 3142(c) reasonably would assure his appearance at trial.McConnell appealed to the district court under 18 U.S.C. Sec. 3145(b).Following a hearing the district court set aside the detention order and entered an order of pretrial release, imposing several conditions, including the execution of a surety bond in the amount of $750,000.¹

McConnell sought reconsideration of the financial component, asking that the bond amount be reduced to $250,000.The record reflects that the $750,000 surety bond would require a non-refundable fee of $112,500 and full collateralization.McConnell asserts that he cannot meet this requirement, noting that all of his assets presently are frozen in bankruptcy.The government does not contest his inability to meet the bond conditions.Following a hearing the district court rejected McConnell's motion.On appeal we returned the matter to the district court for entry of written reasons, Fed.R.App.P. 9(a).

The district court has now assigned reasons for the various conditions of release.Particularly significant to the condition under challenge, the court considered: the circumstances surrounding the alleged offenses, McConnell's prior criminal record, his lack of strong family and other ties to the Houston community, his limited employment prospects and financial resources, the manner in which he responded to the indictment, and his failure to appear at bankruptcy hearings.The district court concluded "that stringent conditions are required to insure McConnell's presence at time of trial."

Analysis

McConnell maintains that the imposition of a financial condition of bail which a defendant cannot meet violates the eighth amendment and the Bail Reform Act of 1984, 18 U.S.C. Secs. 3141-50.We are persuaded by neither claim.

The Supreme Court has made clear that bail is excessive under the eighth amendment² when set in an amount greater than that required for reasonable assurance of the presence of the defendant.United States v. Salerno, 481 U.S. ----, 107 S.Ct. 2095, 95 L.Ed.2d 697(1987);Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3(1951).But a bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement.See generally, Pugh v. Rainwater, 572 F.2d 1053(5th Cir.1978).See alsoUnited States v. James, 674 F.2d 886(11th Cir.1982);United States v. Beaman, 631 F.2d 85(6th Cir.1980);Williams v. Farrior, 626 F.Supp. 983(S.D.Miss.1986).

The setting of bail is a matter committed to the sound discretion of the district court.We review the exercise of that discretion only for abuse.United States v. Golding, 742 F.2d 840(5th Cir.1984).That standard of review was applicable prior to the 1984 Bail Reform Act and its amendments.We conclude that it is still the proper standard of review.³

In the case at barthe trial court detailed the reasons it considered a very substantial bail setting "reasonably necessary to assure the appearance of [McConnell]."18 U.S.C. Sec. 3142(c)(1)(B)(xii).After considering the reasons assigned, in light of the record developed in the several hearings on this subject, we are not prepared to say that the trial court abused its discretion in setting bail at $750,000 and declining to reduce that amount.The bail conditions are triggered by two considerations: reasonable assurance of the appearance of the defendant and the safety of other persons and the community in general.Sec. 3142(c)(1).Although the district court obliquely alluded to the latter, it is clear that the court was motivated by concern that McConnell might flee.That concern finds adequate support in the record.McConnell's constitutional challenge founders.

That conclusion leads to our review of McConnell's contention that because he is financially incapable of satisfying the $750,000 bail requirement, the setting of bail in that amount violates Sec. 3142(c)(2).Section 3142(c)(2) provides: "The judicial officer may not impose a financial condition that results in the pretrial detention of the person."McConnell's challenge presents a case of first impression.

McConnell would have us construe the language of this subsection in isolation.Under his construction, the district court could never set bail in an amount beyond the defendant's ability to post.We find such a construction inconsistent with the total fabric of the Bail Reform Act of 1984, as amended in 1986, inconsistent with apparent congressional purpose, and not supported by the legislative history.In reaching this conclusion we have found helpful the opinions by our circuit colleagues in United States v. Maull, 773 F.2d 1479(8th Cir.1985), andUnited States v. Jessup, 757 F.2d 378(1st Cir.1985).

The legislative history is particularly enlightening.The Senate Report on Sec. 3142(c) informs:

In addition, section 3142(c) provides that a judicial officer may not impose a financial condition of release that results in the pretrial detention of the defendant.The purpose of this provision is to preclude the sub rosa use of money bond to detain dangerous defendants.However, its application does not necessarily require the release of a person who says he is unable to meet a financial condition of release which the judge has determined is the only form of conditional release that will assure the person's future appearance.Thus, for example, if a judicial officer determines that a $50,000 bond is the only means, short of detention, of assuring the appearance of a defendant who poses a serious risk of flight, and the defendant asserts that, despite the judicial officer's finding to the contrary, he cannot meet the bond, the judicial officer may reconsider the amount of the bond.If he still concludes that the initial amount is reasonable and necessary then it would appear that there is no available condition of release that will assure the defendant's appearance.This is the very finding which, under section 3142(e), is the basis for an order of detention, and therefore the judge may proceed with a detention hearing pursuant to section 3142(f) and order the defendant detained, if appropriate.The reasons for the judicial officer's conclusion that the bond was the only condition that could reasonably assure the appearance of the defendant, the judicial officer's finding that the amount of the bond was reasonable, and the fact that the defendant stated that he was unable to meet this condition, would be set out in the detention order as provided in section 3142(i)(1).The defendant could then appeal the resulting detention pursuant to section 3145.

S.Rep. No. 225, 98th Cong.2d Sess. 16, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3199.⁴

As we perceive the totality of the Bail Reform Act, as amended, there is no conflict.Congress expanded the availability of bail, proscribing the setting of a high bail as a de facto automatic detention practice.Congress also made manifest that the relaxed-release requirements were not to be universally applied.Congress directed and empowered the judicial officer to impose conditions of release designed to secure reasonable assurance of the defendant's appearance and the safety of others.Among the fourteen illustrative conditions enumerated by Congress are the forfeiture and monetary requirements.Under Sec. 3142(c)(1)(B)(xi) the judicial officer may require the defendant to

execute an agreement to forfeit upon failing to appear as required, such designated property, including money, as is reasonably necessary to assure the appearance of the person as required, and post with the court such indicia of ownership of the property or such percentage of the money as the judicial officer may specify.

Under Sec. 3142(c)(1)(B)(xii) the judicial officer...