United States v. Colombo, 85 Crim. 244 (HB).

• Decision Date: 28 August 1985
• Docket Number: No. 85 Crim. 244 (HB).,85 Crim. 244 (HB).
• Citation: 616 F. Supp. 780
• Parties: UNITED STATES of America, v. Anthony COLOMBO, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

616 F. Supp. 780

UNITED STATES of America, v. Anthony COLOMBO, et al., Defendants.

No. 85 Crim. 244 (HB).

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

August 28, 1985.

Raymond J. Dearie, U.S. Atty., Eastern Dist. of New York, Edward A. McDonald, Atty.-in-Charge, U.S. Dept. of Justice, Organized Crime Strike Force, Eastern Dist. of New York, Michael A. Guadagno, Asst. Atty.-in-Charge, Brooklyn, N.Y. (Donald S. Sullivan, Sp. Asst., U.S. Atty., Brooklyn, N.Y., of counsel), for U.S.

Slotnick & Cutler, P.C., New York City by Barry Ivan Slotnick, Bruce Cutler and Jill G. Okun, New York City, for defendants.

MEMORANDUM and ORDER on BAIL

WEINSTEIN, Chief Judge:

Defendant Anthony Colombo was indicted along with twenty-four codefendants in an indictment charging sixteen crimes. The government seeks to reverse a magistrate's decision to release him on bail pending trial. Important statutory and constitutional issues of apparent first instance are raised by this application.

The government originally sought detention on grounds of guarantee of appearance and protection against further crimes. Its reliance is now wholly on its perceived need to protect the public pending trial.

At the conclusion of a detention hearing on April 29, 1985 the Magistrate held that pretrial incarceration was required. References that follow are to the transcript of the April 29 hearing:

I'm ordering detention.... First of all, there is a presumption which arises out of the narcotics elements of the conspiracy that the defendant represents a threat to the safety of the community. True, the existence of the presumption does not divest the Government of its requirement to prove by clear and convincing evidence the facts that give rise to the risk to the public. I feel that the Government notwithstanding its inordinate reliance on Mr. Ferraro chief witness against defendant has achieved this test. Mr. Ferraro's narrative is corroborated in many details.

I am satisfied that Mr. Ferraro's testimony might very well be believed by a jury. And if it were to be believed, there is an overwhelming array of testimony that satisfies me that the defendant presents a threat to the safety of the public, or consistent pattern of orchestrating a series of violent criminal operations.

* * * * * *

... I'm reasonably convinced, if the defendant were in custody, his visitors would be limited, and he would not have the freedom of operation to threaten the public in a federal detention facility that he would have if he were at large.

Tr. pp. 81-83.

The Magistrate then expressed concern that the trial of the defendant might not commence within a reasonable period which he deemed to be 90 days. He invited an application for reconsideration should the defendant still be in custody solely because of the detention order 90 days from the day of his arrest. Tr. p. 84.

On July 19, 1985, more than 90 days following the defendant's arrest, the trial had not commenced. When the defendant returned to the Magistrate for reconsideration of the order of detention the Government challenged the Magistrate's jurisdiction to reconsider the order. The Magistrate's response to that challenge was that he would hear the application to reconsider if Judge Bramwell, to whom the case was assigned for all purposes, approved. Tr. of proceedings before Judge Bramwell on July 19, 1985 at p. 4. Judge Bramwell referred the parties back to the Magistrate

for him to hear whatever he wishes to hear concerning the bail application and to make whatever decision he feels is consistent in the best interests of all concerned. I refer you back to him. You could go back to him and if he wishes to hear further argument I'll permit; and I authorize him to hear whatever Mr. Cutler defense counsel has to say as to Mr. Colombo and make ... findings....

Id. at 7-8.

The Magistrate held a hearing on August 7, 1985. At the outset he made it clear that if the application for reconsideration were predicated upon the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., it would be denied. (References that follow are to the transcript of proceedings before the Magistrate on August 7, 1985.) Tr. p. 3. The Magistrate ruled that his reconsideration would be confined to

whether or not new evidence that was unavailable for my consideration at the earlier detention hearing attenuates the findings that I made that there is clear and convincing evidence that this defendant poses a threat to the community. That's all I need concern myself with.

Tr. p. 8.

His original order was modified by the Magistrate for two reasons: the public was not being protected by the defendant's incarceration because he could just as effectively direct the commission of acts of violence from his prison cell (Tr. pp. 39, 50), and absence of any direct evidence that the defendant "physically hit anybody, struck anybody, raped anybody, or had been in anybody else's home in connection with any robbery." Tr. pp. 46, 47. The Magistrate summarized his views as follows:

The only difference between my findings in April and my findings this afternoon is that inasmuch as this defendant did not himself participate in any violent act and that inasmuch as the defendant's ability to orchestrate violent actions is only moderately attenuated by his incarceration, that the purpose of the act, the protection of the public is not served by this defendant's incarceration. This is my only basis for changing my ruling.

Tr. pp. 54-55.

The Magistrate concluded the hearing by fixing bail in the amount of $500,000 to be secured by a deed to a home valued at $200,000 and by sureties with a collective net worth of an additional $200,000. This bail is sufficient to ensure availability for trial but it is not designed to protect the public against the possibility that defendant will commit crimes pending trial.

His modified order was stayed by the Magistrate pending the Government's appeal to a district judge pursuant to 18 U.S.C. § 3145(a)(1). Because Judge Bramwell was on a scheduled vacation, the parties appeared on August 8, 1985 before Judge Glasser, the Miscellaneous Judge hearing all emergency matters during the month of August. After hearing argument, Judge Glasser recused himself on August 16. The case was then referred to me as the only other judge available. The matter was set down for an evidentiary hearing and argued before me on August 17 and August 19.

The parties agree that the determination by this Court may be made upon the April 29, 1985 detention hearing minutes before the Magistrate; the July 19, 1985 minutes of the proceedings before Judge Bramwell; the August 7, 1985 minutes of a hearing before the Magistrate; and transcripts of recorded telephone conversations on July 27, 1983, August 6, 1983 and August 10, 1983.

The Government argues that the Magistrate lacked jurisdiction to modify his order. It also contends that if he had jurisdiction, he abused his discretion.

Magistrate's Jurisdiction

The Magistrate had jurisdiction to reconsider his order. By the explicit terms of 28 U.S.C. § 636(a)(2), the Magistrate is empowered to "issue orders pursuant to Section 3142 of Title 18 concerning release or detention of persons pending trial...." Authority to issue such orders can also be delegated to a Magistrate by a Judge pursuant to 28 U.S.C. § 636(b)(1)(A). In this instance the Magistrate had original jurisdiction as well as jurisdiction pursuant to the delegation by Judge Bramwell on July 19, 1985.

A judicial officer, whether Magistrate or Judge, has inherent power to reconsider his own order. Cf. United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985) (appeal to district court judge after magistrate denied motion to reconsider magistrate's decision to detain defendant without bail). Moreover, the Magistrate expressly reserved the right to reconsider in his original order. He had the right, as a matter of inherent power, to modify his order for any of the reasons stated in Rule 60(b) of the Federal Rules of Civil Procedure which applies by analogy to federal criminal proceedings. Cf. Rule 57(b) of the Rules of Criminal Procedure (if "no procedure is specifically provided" in the Rules of Criminal Procedure, the court may proceed in any lawful manner).

Method and Standard in Reviewing Magistrate's Order

Section 3145 of the Bail Reform Act is silent as to the method and standard of review applicable in an appeal from a magistrate's bail decision. Section 636(b)(1)(A) of title 28 provides for review of a magistrate's determination on a matter referred by a district judge "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." This would imply that there need not be a new evidentiary hearing by the district judge.

The Second Circuit requires that the district court make an "independent determination" in reviewing a magistrate's detention or release order. United States v. Leon, 766 F.2d 77, 80 (2d Cir.1985). The Leon case does not decide whether there must be a new evidentiary hearing by the judge. Apparently the court may, in its discretion, rely on the record before the magistrate or take additional evidence. Compare, United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir.1985) (no error for district court to conduct independent evidentiary hearing), with United States v. Hazime, 762 F.2d 34, 36 (6th Cir.1985) ("although noting that a clearly erroneous standard for review of the magistrate's decision was probably correct, the District Court held a de novo hearing on the detention order").

It remains unclear whether the "independent determination" mandated by Leon and Delker requires a second full evidentiary hearing by the district court should the defendant or the government seek one. That issue is not decisive in the instant case because the parties stipulated that the record before the magistrate was the evidence to be considered by the district court.

Requiring two evidentiary hearings — the first...