United States v. Acevedo-Ramos

• Decision Date: 21 December 1984
• Docket Number: Crim. No. 84-373 HL.
• Parties: UNITED STATES of America, v. Hector ACEVEDO-RAMOS, Defendant.
• Court: U.S. District Court — District of Puerto Rico

600 F. Supp. 501

UNITED STATES of America, v. Hector ACEVEDO-RAMOS, Defendant.

Crim. No. 84-373 HL.

United States District Court, D. Puerto Rico.

December 21, 1984.

Luis Carbone, Luis F. Abreu Elias, Hato Rey, P.R., William M. Kunstler, Ronald L. Kuby, New York City, for defendant.

Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., for United States.

OPINION AND ORDER

LAFFITTE, District Judge.

Defendant Héctor Acevedo-Ramos was indicted and arrested on November 15, 1984, with other five defendants. Defendant was charged on a two count indictment with conspiracy to delay and affect commerce by robbery, in violation of 18 U.S.C. § 1951, and with the substantive offense of robbery of approximately 770 diamonds from Taillex Corporation, valued at $620,918, in violation of 18 U.S.C. § 2. The offenses carry a maximum penalty of twenty years imprisonment and/or a $10,000 fine in each count.

The Government sought, and, after a full hearing held on November 19, 21, and 26, 1984 before Magistrate Arenas obtained, defendant's preventive detention pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., effective on October 12, 1984. The detention order, filed on November 26, 1984, contains written findings of fact and the reasons for detention as mandated by Section 3142(i).¹ On November 28, another Opinion and Order, on reconsideration, was filed by the Magistrate, reaffirming his prior detention order. On December 6, defendant filed a "Notice of Appeal", which the Court entertained and set for hearing on December 12th, as a motion for revocation or amendment of a detention order. 18 U.S.C. § 3145(b).² Simultaneous briefs were ordered to be filed, and thereafter the matter was submitted on December 14, 1984, upon defendant's supplemental brief.

Defendant claims that the detention order should be set aside and defendant released on bail, on the grounds that (1) Section 3142 of the Bail Reform Act is facially unconstitutional, and deprives defendant of due process of law, (2) pretrial detention as authorized by the Act violates the Eighth Amendment, and (3) the findings of the Magistrate that defendant is a danger to the Government witnesses and to the community, and that there is serious risk that he will obstruct or attempt to obstruct justice, are not supported by "clear and convincing evidence."

A. THE BAIL REFORM ACT

The Bail Reform Act of 1984, Chapter II of the Comprehensive Crime Control Act of 1984, Public Law No. 98-473, was Congress' response to the flaws in the pretrial release system created by the Bail Reform Act of 1966. Congress found that there was a widespread pattern of serious crimes being committed by persons on pretrial release. See, S.Rep. No. 225, 98th Cong., 2nd Session 6 (1984); S.Rep. No. 147, 98th Cong., 1st Sess. 22-30 (1983); S.Rep. No. 317, 97th Cong., 2nd Sess. 27-35 (1982); 130 Cong.Rec. S4109, daily ed. Jan. 20, 1984 (remarks of Sen. Thurmond); id. at S537, daily ed. Jan. 31, 1984 (remarks of Sen. Mitchell); id. at S945 (daily ed. Feb. 3, 1984 (remarks of Sen. Hatch). The Act reflects congressional concern with the alarming problem of crimes committed by persons on release and with the inadequate authority of the courts to make release decisions that give appropriate recognition to the danger a person may pose to others, to the community or to the administration of justice. Senator Mitchell remarked:

In the 17 years of experience we have had with the (Bail Reform Act of 1966), it has come under criticism as too liberally permitting pretrial release and not allowing judges to give sufficient weight to any other factors involved, particularly the safety of the community.

The need to allow a judge to consider the dangerousness of a defendant to the community when bail or pretrial release is contemplated is to me obvious. And it is supported by studies. A 1981 Lazar Institute study found that approximately 1 in 6 defendants awaiting trial was rearrested during the pretrial period. And of those, more than one-third had multiple arrests.

No society can or will maintain its essential civil liberties if a majority of its citizens comes to believe that the Government cannot or will not protect them against random crime. Current bail and pretrial release practice is an area in which the public perception is that apprehension and arrest provide no assurance for public safety.

Id. at S939 (daily ed. Feb. 3, 1984.)

The applicable provisions governing these proceedings are set forth below:

Section 3142. Release or detention of a defendant pending trial

(a) IN GENERAL. — Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be —

* * * * * *

(4) detained pursuant to the provisions of subsection (e).

* * * * * *

(e) DETENTION. — If, after a hearing pursuant to the provisions of subsection (f), 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, he shall order the detention of the person prior to trial.... 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 under section 924(c) of title 18 of the United States Code possession of a firearm during the commission of a felony.

(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) ...

(C) ...

(D) ...

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

(A) ...

(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.

The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.... At the hearing, the person has the right to be represented by counsel, and, if he is financially unable to obtain adequate representation, to have counsel appointed for him. The person shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination or conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing.

(g) FACTORS TO BE CONSIDERED. — The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning —

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including —

(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

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(i) CONTENTS OF DETENTION ORDER. — In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall —

(1) include written findings of fact and a written statement of the reasons for the detention (2) direct that the person be committed to the custody of the Attorney General for the confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;

(3) direct that the person be afforded reasonable opportunity for private consultation with his counsel; and

(4) direct that, on order of a court of the United States or on request of any attorney for the Government, the person in charge of the corrections facility in which the person is confined deliver the person to a United States marshal for the purpose of an appearance in connection with a court proceeding.

The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.

(j) PRESUMPTION OF INNOCENCE. — Nothing in this section shall be construed

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