United States v. Freitas

• Decision Date: 21 February 1985
• Docket Number: No. CR-85-0025 EFL.,CR-85-0025 EFL.
• Citation: 602 F. Supp. 1283
• Parties: UNITED STATES of America, Plaintiff, v. Raymond M. FREITAS, et al., Defendants.
• Court: U.S. District Court — Northern District of California

602 F. Supp. 1283

UNITED STATES of America, Plaintiff, v. Raymond M. FREITAS, et al., Defendants.

No. CR-85-0025 EFL.

United States District Court, N.D. California.

February 21, 1985.

COPYRIGHT MATERIAL OMITTED

Eric Swenson, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Cristina C. Arguedas, Cooper & Arguedas, Berkeley, Cal., for defendants.

DETENTION ORDER

LYNCH, District Judge.

Defendant Raymond M. Freitas has moved to revoke or amend a pretrial detention order issued by a United States magistrate pursuant to the recently enacted Bail Reform Act of 1984 ("the Bail Act"), Pub.L. No. 98-473, 1984 U.S.Code Cong. & Ad.News (98 Stat.) 1837, 1976 (to be codified at 18 U.S.C. §§ 3141-3151). The defendant is charged with manufacturing methamphetamine in violation of 21 U.S.C. section 841(a)(1), and with conspiracy to commit the above offense in violation of 21 U.S.C. section 846. On December 24, 1984, a hearing was held before Magistrate Wayne D. Brazil which served as both the defendant's preliminary examination and his detention hearing under the terms of the Bail Act. Based upon the information presented at the hearing, the Magistrate made a finding of probable cause and also concluded that the defendant should be detained pending trial. In support of his present motion to revoke or amend the detention order, the defendant contends (1) that the Bail Act is unconstitutional on its face and as applied in this case, and (2) that there are reasonable conditions which can be imposed upon his release sufficient to assure his presence at trial and the safety of any person and the community.

The Bail Reform Act of 1984 makes substantial revisions in the federal law governing pretrial release of criminal defendants. Most significant in this case are the changes which now compel federal judges to consider community safety in setting nonfinancial conditions of release and to order the pretrial detention of certain defendants who, if released, are likely to flee or endanger other persons and the community. Section 3142 of the Bail Act provides that a judicial officer shall issue an order pending trial to detain a defendant if, after a hearing, the judicial officer determines 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." 18 U.S.C. § 3142(e). The statute specifies four factors which the court is required to consider in making a determination as to whether a defendant should be released or detained: (1) the "nature and circumstances of the offense charged," including whether the crime involves a narcotic drug, (2) "the weight of the evidence against the person," (3) "the history and characteristics of the person," and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g). At the detention hearing, the defendant has a right to be represented by counsel, to testify and present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to offer any other relevant information by proffer or otherwise. 18 U.S.C. § 3142(f). As for the standard of proof that should apply to these proceedings, the statute provides that a finding of dangerousness must be supported by "clear and convincing evidence," but is silent on the question of how much proof is necessary to support a finding that the defendant presents a flight risk. Id. The Act also states that where the judicial officer finds that there is probable cause to believe the person committed a serious drug offense, including one of the crimes with which the defendant is charged here, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the community. 18 U.S.C. § 3142(e).

I. CONSTITUTIONAL RIGHT TO BAIL

The defendant argues that the Bail Act is unconstitutional on its face since it infringes an asserted right to bail derived from the Eighth Amendment. It is not clear whether the defendant objects to the Bail Act on the ground that Congress may never provide for pretrial detention without bail or whether he only contends that danger to the community is an insufficient justification for denying bail. Neither argument has merit.

The Eighth Amendment provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.Const. Amend. VIII. Although the language of the Eighth Amendment does not explicitly grant a right to bail, the defendant contends that such a right is implied. The Supreme Court has never firmly decided the issue. In Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1 (1951), the Supreme Court held that bail set at $50,000 for defendants accused of violating the Smith Act was excessive. Since the defendants in Stack had a statutory right to bail, the Court was not confronted with the question of whether the right to bail is constitutionally protected. In dictum, however, the Court stressed the importance of bail in protecting the liberty interests of defendants not yet proven guilty:

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a noncapital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction.... Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

342 U.S. at 4, 72 S.Ct. at 3.

The Supreme Court discussed the subject of bail again later in the same term in Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952). In Carlson, the Court upheld the pretrial detention of alien communists pending civil deportation proceedings. The majority rejected the argument that the Eighth Amendment requires the same reasonable bail for aliens subject to deportation as it does for citizens charged with bailable criminal offenses. In support of its ruling, the Court stated:

The bail clause was lifted with slight changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.

342 U.S. 545-46, 72 S.Ct. at 536-37.

The defendant argues that Carlson should be strictly limited to its facts. Yet, while the phrase "under the circumstances of these cases" leaves open the possibility that the Eighth Amendment might require bail in a case that did not involve the deportation of aliens, the Court was unmistakably direct in its assertion that Congress has the power to delineate those cases in which bail shall not be permitted. Even though there exists a strong statutory tradition in favor of bail for noncapital crimes, this Court agrees with the Carlson dictum that the excessive bail clause of the Eighth Amendment does not preclude Congress from enacting a law that provides for pretrial detention without bail in certain types of cases. See United States v. Edwards, 430 A.2d 1321, 1330-31 (D.C.Ct.App.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982); United States ex rel. Covington v. Coparo, 297 F.Supp. 203, 205-06 (S.D.N.Y.1969). In Edwards, the Court of Appeals for the District of Columbia upheld a pretrial detention statute upon which the Bail Act has been largely modeled. After considering in detail both the colonial history of bail and the history of the passage of the Bill of Rights, the Edwards court determined that the primary purpose of the bail clause was to limit the discretion of the judiciary in setting individual bail, not to restrict Congress' power to deny bail in appropriate cases. 430 A.2d 1326-31.

The defendant's argument that pretrial detention in noncapital cases is unconstitutional under the Eighth Amendment is further undercut by his own recognition that bail may be denied where important societal interests are at stake, such as the need to protect jurors or witnesses who might be threatened if the defendant were released, Carbo v. United States, 82 S.Ct. 662, 668, 7 L.Ed.2d 769 (1962) (Douglas, Circuit J.); United States v. Wind, 527 F.2d 672, 675 (6th Cir.1975); United States v. Gilbert, 425 F.2d 490, 491 (D.C.Cir.1969), or to ensure the defendant's appearance at trial, United States v. Abrahams, 575 F.2d 3, 8 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); United States v. Melville, 306 F.Supp. 124, 127 (S.D.N.Y.1969). In granting courts the authority to deny release to those defendants who present an especially serious threat to the safety of the community, Congress has responded rationally to alarming statistics which indicate a high rate of recidivism among released defendants. H.Comm. on the Judiciary, Bail Reform Act of 1984, H.Rep. No. 1121, 98th Cong., 2d Sess. 10-11 (1984); S.Comm. on the Judiciary, Comprehensive Crime Control Act of 1983, S.Rep. No. 225, 98th Cong. 1st Sess. 6 (1983), U.S.Code Cong. & Admin.News 1984, p. 1; S.Comm. on the Judiciary, The Bail Reform Act of 1983, S.Rep. No. 147, 98th...