United States v. Birges, CR-R-81-39-ECR.

• Decision Date: 01 October 1981
• Docket Number: No. CR-R-81-39-ECR.,CR-R-81-39-ECR.
• Parties: UNITED STATES of America, Plaintiff, v. John BIRGES, Sr., John Waldo Birges, Jr., James William Birges, Ella Joan Williams, Willis "Bill" Brown, and Terry Lee Hall, Defendants.
• Court: U.S. District Court — District of Nevada

523 F. Supp. 468

UNITED STATES of America, Plaintiff, v. John BIRGES, Sr., John Waldo Birges, Jr., James William Birges, Ella Joan Williams, Willis "Bill" Brown, and Terry Lee Hall, Defendants.

No. CR-R-81-39-ECR.

United States District Court, D. Nevada.

October 1, 1981.

Edward R. J. Kane, Asst. U. S. Atty. Reno, Nev., for plaintiff, United States of America.

Brent Adams of Adams & Johnson, Reno, Nev., for defendant, Ella Joan Williams.

William Puzey, Reno, Nev., for defendant, Willis "Bill" Brown.

Fred Atcheson, Reno, Nev., for defendant, Terry Lee Hall.

Martin H. Wiener, Asst. Federal Public Defender, Reno, Nev., for defendant, John Birges, Sr.

ORDER

EDWARD C. REED, Jr., District Judge.

Defendant Ella Joan Williams has filed a motion, pursuant to 18 U.S.C. § 3147(a), asking this Court to amend the Order imposing conditions for her release pending trial. That Order was entered August 31, 1981, by Magistrate Phyllis Halsey Atkins. It conditions said defendant's release on the posting of bail in the sum of $600,000, cash or corporate surety. Further, if she is released she must stay in Fresno County, California, surrender her passport, if any, and refrain from applying for a new one, and avoid contact with any of her codefendants except in the presence of their attorneys and in connection with the preparation of their defenses.

The charges have arisen from the alleged extortion scheme against Harvey's resort hotel and casino at Lake Tahoe. A bomb placed in the hotel building detonated accidentally, causing property damage estimated as high as twelve million dollars.

Ms. Williams' application for review of the conditions, particularly the amount of bail, was heard by Magistrate Atkins on September 2, 1981. She was represented by Brent T. Adams, Esq. On September 3, 1981, Magistrate Atkins handed down her Order denying the application. Both orders of the Magistrate were in writing and set forth the reasons for her decisions.

A hearing on the instant motion was held September 14, 1981, with Mr. Adams arguing on behalf of the defendant and Assistant U. S. Attorney Edward R. J. Kane representing the United States. Although the defendant was present, she did not testify. The same was true of the hearing before Magistrate Atkins; that is, no evidence was sought to be introduced by either side through the use of witnesses. The factual allegations were presented by the respective counsel during the course of their arguments.

Despite the frequency of bail proceedings, very little has been published concerning the standards to be followed by a district court in a § 3147(a) proceeding. For example, the ALR annotation which discusses the construction and application of the section does not comment specifically on any standards that must be adhered to. See 8 ALR Fed. 586, Anno.: Bail Reform Act-Pretrial Bail. It is universally accepted that consideration must be given the factors which the magistrate utilizes in deciding what conditions of release will reasonably assure the defendant's appearance in court. See Government of Virgin Islands v. Bolones, 427 F.2d 1135 (3rd Cir. 1970). Those factors are listed in 18 U.S.C. § 3146(b), and include family ties, employment, length of residence, record of appearance at court proceedings, etc.

In Shackleford v. United States, 383 F.2d 212, 215 (D.C.Cir.1967), the opinion indicates that the district court "is called on to review the original action." This is premised largely on the requirement set forth in 18 U.S.C. § 3146(d) that, unless the conditions are amended by the magistrate and the defendant is thereupon released, the magistrate "shall set forth in writing the reasons for requiring the conditions imposed." Certainly, judicial review is facilitated greatly when the reasons underlying the order below are set forth in writing. Nevertheless, after a most thorough consideration of the issue, Judge Karlton, in United States v. Smith, 87 F.R.D. 693 (E.D.Cal.1980), decided that an appellate scope of review is not proper. He held that the district court must exercise a de novo review of bail conditions. An important reason discussed by Judge Karlton is the shortness of time for preparation. The information that the defendant gathers and presents to the magistrate at the bail hearing must be obtained with great haste, sometimes within twenty-four hours. By the time he is heard by the district court, additional information may be available that is relevant to what conditions of release will assure subsequent court appearance by the defendant. Judge Karlton, therefore, feels that it would be inappropriate to provide only a limited review at the district court level.

All relevant facts and circumstances are properly used by the Court in reaching its decision under 18 U.S.C. § 3147(a). See United States v. Melville, 309 F.Supp. 822 (S.D.N.Y.1970). However, the undersigned is convinced that the Magistrate's Order, including the reasons set forth therein, are not to be given the short shrift that a de novo consideration might seem to imply. The basis for the decision of the district court in deciding a motion to amend conditions of release under 18 U.S.C. § 3147(a) appears to lie somewhere between a de novo determination and an appellate review. The Magistrate's Order represents the product of intense effort and consideration by an experienced and conscientious judicial officer. In this particular case there was no live testimony by any witness. Therefore, the demeanor of witnesses is not involved. However, the opportunity to observe the demeanor of witnesses may place the magistrate in a better position than the district court to fix conditions of release.

Except to the extent that any additional information presented at the district court hearing on the motion to amend requires different conclusions to be reached, this Court starts from the proposition that the decision of the Magistrate is correct, unless the Magistrate's reasons are erroneous as a matter of law or the factual findings underlying the Magistrate's decision are not supported by substantial evidence. In considering the motion the Court should analyze, and in this case has analyzed, the entire record and the Magistrate's findings, reasons and decision in the light of each of the tests set forth in 18 U.S.C. § 3146(b) and other tests which seem appropriate here. Utilizing these standards, the motion of defendant Williams is now examined.

The nature and circumstances of the offense charged...