United States v. Bynum, 71 Cr. 1169.

• Decision Date: 14 June 1972
• Docket Number: No. 71 Cr. 1169.,71 Cr. 1169.
• Citation: 344 F. Supp. 647
• Parties: UNITED STATES of America v. Elvin Lee BYNUM and Joseph Cordovano, Defendants.
• Court: U.S. District Court — Southern District of New York

344 F. Supp. 647

UNITED STATES of America v. Elvin Lee BYNUM and Joseph Cordovano, Defendants.

No. 71 Cr. 1169.

United States District Court, S. D. New York.

June 14, 1972.

Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., by Charles B. Updike, Asst. U. S. Atty. for the United States.

Herbert I. Handman, New York City, for defendants.

POLLACK, District Judge.

The decision¹ on the issue of bail is as follows:

By clear rulings, both in the Fifth Circuit and in this Circuit, there is no right to bail after conviction (Smith v. United States, 434 F.2d 612, Fifth Circuit 1970; and Williamson v. United States, 184 F.2d 280, Second Circuit 1950, per Mr. Justice Jackson sitting as a Circuit Judge).

The defendants Bynum and Cordovano were two of fourteen defendants found guilty on May 1, 1972 of conspiracy to violate the Federal Narcotic laws, 21 U. S.C. Sections 173 and 174 and 26 U.S.C. Sections 4705(a) and 7237(b).

After return of the jury's verdict, the Court considered and denied bail release and ordered that these two defendants be remanded pending sentence. Thereafter, through their trial counsel respectively, defendants moved for reinstatement of the bail allowed prior to the trial.

On May 12, 1972, after oral argument based on affidavits submitted by the defendants and by the Government, the Court in a detailed statement reviewed on the record the considerations which had led it to conclude that the defendants Bynum and Cordovano would pose a danger and a threat to particular parties and to the community generally if granted bail at this time, and that no conditions of release could be fashioned that would reasonably assure against those dangers.

The defendants, now represented by newly retained counsel, have moved a second time for reinstatement of bail. No new facts are presented. They claim that they heretofore have been denied an opportunity to challenge the Government's assertion that their liberty pending sentence would create a danger to any particular individual and/or to the community, and they assert that they are entitled to an independent evidentiary hearing prior to post-conviction denial of bail pursuant to 18 U.S.C. Section 3148.

They further suggest that it is the Government's burden after conviction to show that bail release should be denied.

Section 3148 does not explicitly contain any such requirements. It provides that a defendant may be detained after conviction if "the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community." It is sufficient that "such a risk of flight or danger is believed to exist . . ."

In United States v. Porter, 297 F. Supp. 1117 (D.C.D.C. 1969), the court strongly rejected the suggestion that the statutory standard of reasonable belief contemplated or required "a factual determination on an adversary record," 297 F.Supp. at 1118, rather than a discretionary determination based primarily upon the facts revealed by trial, in which the court balanced the rights of the individual defendant and the "countervailing interests of the community."

Under the circumstances of this case, it is unnecessary to decide whether an adversary proceeding may be required where the court bases its denial of bail solely or primarily upon circumstances outside of the trial record, as was the case in Leary v. United States, 431 F.2d 85, 89, 91 (5th Circuit 1970).

In Leary, the problem was that the Government's reason for seeking denial of bail—that the defendant had advocated use of drugs—was outside the trial record and raised serious constitutional issues. The Court stated that the Bill of Rights in that case required a hearing 431 F.2d at 91.

Here, the Court presided at the trial, which revealed data of a highly informative and significant nature, tested in the crucible of cross-examination. The Court was enabled thereby to and did base its denial of bail release on the proof adduced at trial as to defendants' central roles in a large scale network for the purchase and distribution of narcotics and defendants' propensity, shown at trial, to utilize violence as an integral part of their illegal enterprise.

The additional matter which the Government offered in support of its opposition to bail release on the previous application was "confirmatory information in the mind of the Court." United States v. Erwing, 280 F.Supp. 814 (Northern District of California 1968). Its impact was corroborative; however, its absence would not have altered the Court's determination (at 816).

Defendants' affidavits indicate their intention to challenge now the proof that they planned to murder a suspected informer. They made no attempt to mount such a challenge at trial, nor did they call as a witness Robert Wollack, the alleged victim, although they now submit his affidavit in support of their motion.

While they assert that denial of bail release requires that they be given an opportunity to retry these issues, there is no indication in either the statute or its legislative history, 1966 U.S. Congressional Code & Administrative News, pp. 2293, 2305, that Congress intended post conviction bail proceedings to evolve into independent "trials" when the judge who conducted the trial and heard the evidence is satisfied that the conditions requiring detention exist.

The defendants emphasize their record of attendance while admitted to bail pending trial and the fact that their substantial business and personal interests in the New York area militate against...