United States v. Askari

• Decision Date: 30 April 1985
• Docket Number: Crim. A. No. 85-44.
• Citation: 608 F. Supp. 1045
• Parties: UNITED STATES of America v. Muhammad ASKARI.
• Court: U.S. District Court — Eastern District of Pennsylvania

608 F. Supp. 1045

UNITED STATES of America v. Muhammad ASKARI.

Crim. A. No. 85-44.

United States District Court, E.D. Pennsylvania.

April 30, 1985.

Ronald A. Sarachan, Asst. U.S. Atty., Philadelphia, Pa., for U.S.

Maureen K. Rowley, Asst. Defender, Philadelphia, Pa., for Askari.

MEMORANDUM AND ORDER

HUYETT, District Judge.

Presently before me is defendant Askari's motion for reduction of bail and the government's motion to revoke bail and to order pretrial detention of defendant Askari under the Bail Reform Act of 1984, Pub.L. No. 98-473, title II, 98 Stat. 1837 (1984). I have considered the written submissions of the parties and the testimony, proffers, and arguments of counsel at the hearing held on April 19, 1985. I will grant the government's motion and order bail revoked and defendant Askari detained pending trial on May 28, 1985.

In granting the government's motion, I make the following findings of fact pursuant to 18 U.S.C. § 3142(i)(1).

FINDINGS OF FACT

1. On February 14, 1985, defendant Muhammad Askari a/k/a John Marshall Henry was indicted and charged with possession of a firearm by a convicted felon, in violation of Title 18, United States Code, Appendix I, Section 1202(a)(1).

2. On February 28, 1985, at defendant's initial appearance, the government moved for pretrial detention of defendant pursuant to Title 18, United States Code, Section 3142(f)(1)(D) on the grounds that defendant Askari is charged with a felony committed after he had been convicted of two prior crimes of violence: bank robbery and robbery. The government argued that there was no condition of release or combination of conditions which would reasonably assure the safety of any other person and the community.

3. At a detention hearing held on March 4, 1985, United States Magistrate Scuderi held that before he could order pretrial detention of a defendant he had to find that there was no condition or combination of conditions that would reasonably assure both the appearance of the person as required and the safety of any other person and the community. Judge Scuderi then held that the government had failed to show that defendant Askari posed a serious risk of flight and therefore denied the government's motion for detention. The court set bail at $75,000/10% cash.

4. On March 7, 1985, defendant filed a motion for reduction of bail. On March 12, 1985, the government filed a notice of appeal of the order denying its motion for detention.

5. I held a de novo hearing on April 19, 1985 at which both the government and defendant presented evidence through written documents, oral testimony and proffer.

6. Special Agent Forest G. Webb of the Federal Bureau of Investigation (FBI), Philadelphia, PA testified as a witness for the government at the April 19, 1985 hearing. Agent Webb testified from his knowledge of the FBI records pertaining to defendant Askari and from his involvement in the investigation leading up to the present indictment of defendant Askari. Based on his forthright nature and his years of experiences with the FBI, I find him to be a credible witness.

7. Defendant Askari has a lengthy criminal record which includes crimes of violence.

8. On May 13, 1974, defendant Askari committed an armed robbery at the Beneficial Mutual Savings Bank, 5535 Chester Avenue, Philadelphia, Pennsylvania. Government Exhibits 1 and 2 ("G___").

9. During the bank robbery, defendant Askari repeatedly threatened the lives of the people inside the bank. In addition to verbal threats, defendant's actions included holding a handgun on a bank guard, taking the guard's gun from its holster, giving the guard's gun to his accomplice, Rachael Williama Gilbert, and directing her to use it to cover the people in the bank while he confronted a teller and took $2,380.00.

10. Defendant Askari entered a guilty plea to two counts of bank robbery, in violation of Title 18, United States Code, Section 2113(a), including taking $2,380.00 from the Beneficial Mutual Savings Bank "by force and violence, and by intimidation." G1.

11. On July 18, 1974, defendant Askari was sentenced to five years imprisonment. Defendant was released from prison on March 1, 1979.

12. On February 13, 1980, defendant Askari was charged with an armed robbery at the Thrifty Food Store, Chester Avenue, Philadelphia, Pennsylvania.

13. During the robbery, defendant entered the grocery store with a shotgun and a bag, pointed the shotgun at the store owner, and ordered him to fill the bag with money. After the bag was filled, defendant took the bag, grabbed a woman and using her as a shield, backed out of the store.

14. On April 25, 1980, defendant Askari pleaded guilty and was convicted in the Common Pleas Court of Philadelphia, February Term 1980, Nos. 1581, 1585, of robbery and unlawfully carrying a firearm without a license, in violation of 18 Pa.C. S.A. §§ 3701, 6106. On July 9, 1980, defendant was sentenced to not less than five nor more than ten years imprisonment for the robbery conviction and five years probation on the firearms offense. G3.

15. On May 13, 1981, defendant's sentence was reduced to time served to 23 months on the robbery conviction and three years probation on the firearms conviction to run consecutively. Defendant's motion to reduce sentence was based on defendant having no prior convictions which was not true. G3.

16. On September 18, 1982, a complaint was filed charging defendant Askari a/k/a John Henry with theft by deception in violation of 18 Pa.C.S.A. § 3922. On January 26, 1984, defendant pleaded guilty in the Philadelphia Court of Common Pleas and was sentenced to time in (five months) to twelve months imprisonment. G7.

17. Defendant Askari was paroled on May 8, 1984 after paying $200 restitution. G7.

18. On October 23, 1983, defendant was stopped on Chester Avenue by Philadelphia Police Officer Joseph Tabasco who was investigating an armed robbery at a nearby bar. Defendant was allegedly found to have in his possession a Beretta 6.35 caliber pistol, Model 950B, bearing serial number G39315 with one live .25 caliber round in the chamber and five live .25 caliber rounds in the clip. Defendant was arrested and charged with possession of a firearm by a person convicted of a crime of violence, carrying a firearm without a license, and carrying a firearm on public streets, in violation of 18 Pa.C.S.A. §§ 6105, 6106 and 6108.

19. On October 23, 1983, defendant was on probation from his 1980 conviction for unlawfully carrying a firearm without a license, and he was on release pending trial for his charge of theft by deception.

20. The state prosecution of defendant Askari based on the October 23, 1983 incident was delayed by the failure of defendant to retain counsel, failure of counsel to be prepared and then by defendant's failure to appear. On May 10, 1984, the state charges were withdrawn. G4. Agent Webb testified that the state charges were withdrawn in favor of federal prosecution.

21. Defendant Askari was told, at the time the state charges were withdrawn, that he still faced federal charges. Defendant remained in the community and made no attempt to flee. After the present federal indictment came down, defendant Askari turned himself in.

22. Agent Webb was assigned the case to investigate sometime during the summer of 1984. He submitted a report in January 1985, and defendant Askari was indicted in February 1985.

DISCUSSION

Before I make conclusions of law, defendant Askari has raised several legal arguments which I must first address.

In opposing the government's motion for pretrial detention under the Bail Reform Act of 1984, defendant contends that application of the Act to him violates the constitutional prohibition against ex post facto laws. The conduct for which defendant Askari is under indictment was committed on October 2, 1983; the Bail Reform Act was signed into law on October 12, 1984.

The prohibition against ex post facto laws applies to any laws which impose "a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981) or which alter substantial rights. Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). There is no ex post facto violation "if the change is merely procedural, and does `not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt'." Weaver, 450 U.S. at 29, n. 12, 101 S.Ct. at 964, n. 12, quoting Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884). Therefore the key consideration is whether pretrial detention pursuant to the Bail Reform of 1984 is punitive in nature or merely procedural.

In United States v. Miller, 753 F.2d 19 (3d Cir.1985), the Third circuit held that the availability of bail pending appeal is a procedural issue rather than a type of punishment to which ex post facto applies. Similarly, I conclude that pretrial detention or bail pending trial is also a procedural issue rather than a type of punishment to which the ex post facto doctrine applies. As the court in United States v. Payden, 598 F.Supp. 1388, 1392 (S.D.N.Y.1984) noted, in passing the Bail Reform Act of 1984, Congress intended not "to promote the traditional aims of punishment such as retribution or deterrence, but rather ... to curtail reasonably predictable conduct, not to punish for prior acts." quoting S.Comm. on the Judiciary, Comprehensive Crime Control Act of 1983, S.Rep. No. 225, 98th Cong., 1st sess. 8 (1983). Congress sought to minimize the risk of flight and the danger to society posed by the release of criminal defendants. Therefore, pretrial detention is an incident of a governmental purpose other than punishment and as such is a constitutionally permissible, regulatory provision.

Defendant also argues that Judge Scuderi correctly denied the government's motion for pretrial...