United States v. Hazzard, 84 CR 771.

• Decision Date: 11 December 1984
• Docket Number: No. 84 CR 771.,84 CR 771.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin Sidney HAZZARD, Byron Randolph and Kevin Stephens, Defendants.
• Court: U.S. District Court — Northern District of Illinois

598 F. Supp. 1442

UNITED STATES of America, Plaintiff, v. Kevin Sidney HAZZARD, Byron Randolph and Kevin Stephens, Defendants.

No. 84 CR 771.

United States District Court, N.D. Illinois, E.D.

December 11, 1984.

Robert L. Graham, Jenner & Block, Chicago, Ill., for Hazzard.

Ronald G. Draper and Nathaniel R. Howse, Chicago, Ill., for defendants.

Joseph Hartzler, Lawrence Rosenthal, Asst. U.S. Attys., Chicago, Ill., for plaintiff.

MEMORANDUM OPINION AND ORDER

WILLIAM T. HART, District Judge.

Defendant Kevin Sidney Hazzard has moved to revoke or amend an order entered by a United States magistrate on October 23, 1984 ordering his pretrial preventive detention pursuant to the Bail Reform Act of 1984 ("the Act"), 18 U.S.C. § 3141, et seq. Section 3145(b) of the Act provides that if a person is ordered detained by a magistrate he may file with the court having original jurisdiction of the offense a motion for revocation or amendment of the order. The Act requires that the motion shall be determined promptly.¹

Hazzard contends that the detention order should be reversed and reasonable bail set for one or more of the following reasons:

(a) The detention order was entered pursuant to the provisions of a statute which, both on its face and as applied to Hazzard, deprives him of constitutional rights to bail, to the presumption of innocence, to due process of law, and to equal protection of the laws.

(b) The detention order was entered without providing Hazzard with the discovery necessary to a meaningful exercise of his right to cross-examine, to confront witnesses, and to present evidence.

(c) The hearing was inadequate because of the government's reliance on hearsay evidence and because of the limits placed on cross-examination.

(d) To apply the Act in this case would violate the Ex Post Facto clause of the Constitution because the offense charged allegedly occurred on October 6, 1984 and the Act did not become law as part of the Comprehensive Crime Control Act of 1984 until October 12, 1984.

I. Applicable Statutory Provisions

On October 12, 1984 the Bail Reform Act became law as Chapter II of the Comprehensive Crime Control Act of 1984. Because of new interrelated provisions pertaining to detention hearings, it is appropriate to set forth at the outset the parts of the Act which govern this proceeding:

"§ 3141. Release and detention authority generally

"(a) PENDING TRIAL.—A judicial officer who is authorized to order the arrest of a person pursuant to section 3041 of this title shall order that an arrested person who is brought before him be released or detained, pending judicial proceedings, pursuant to the provisions of this chapter.

* * * * * *

"§ 3142. Release or detention of a defendant pending trial

"(a) IN GENERAL.—Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be—

* * * * * *

(4) detained pursuant to the provisions of subsection (e).

* * * * * *

"(e) DETENTION.—If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds 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, he shall order the detention of the person prior to trial.... Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed ... an offense under section 924(c) of title 18 of the United States Code possession of a firearm during the commission of a felony.

"(f) DETENTION HEARING.—The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case—

(1) upon motion of the attorney for the Government, that involves— (A) a crime of violence;

* * * * * *

"The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.... At the hearing, the person has the right to be represented by counsel, and, if he is financially unable to obtain adequate representation, to have counsel appointed for him. The person shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing.

"(g) FACTORS TO BE CONSIDERED. —The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning —

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

* * * * * *

"(i) CONTENTS OF DETENTION ORDER. —In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall—

(1) include written findings of fact and a written statement of the reasons for the detention;

(2) direct that the person be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;

(3) direct that the person be afforded reasonable opportunity for private consultation with his counsel; and

(4) direct that, on order of a court of the United States or on request of any attorney for the Government, the person in charge of the corrections facility in which the person is confined deliver the person to a United States marshal for the purpose of an appearance in connection with a court proceeding.

"The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.

"(j) PRESUMPTION OF INNOCENCE. —Nothing in this section shall be construed as modifying or limiting the presumption of innocence.

"§ 3145. Review and appeal of a release or detention order

* * * * * *

"(b) REVIEW OF A DETENTION ORDER. —If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly."

II. The Charges, the Evidence Presented and the Magistrate's Order

On October 15, 1984, defendant Hazzard and co-defendants Byron Randolph and Kevin Stephens were charged in a complaint filed with a magistrate with a violation of 18 U.S.C. § 1201(a)(1): namely, abduction and kidnapping from Calumet, Illinois to Gary, Indiana for the purpose of sexual activity. A hearing was held on October 23, 1984.²

The evidence before the magistrate which relates to Hazzard was presented by the affidavit and oral testimony of Agent Harris of the Federal Bureau of Investigation who investigated a case of abduction of five young women in the vicinity of Gino's Liquor Store in Calumet City, Illinois on October 6, 1984. According to a statement made to him by one of the victims, two persons (later identified as defendants Hazzard and Randolph) armed with a pistol and a sawed-off shotgun entered a van in which the victims were present, robbed them at gunpoint and took control of the van. One of the perpetrators drove the van to Hammond, Indiana. Upon reaching Hammond, the van was stopped at a railroad crossing and two of the victims, taking advantage of the opportunity created by the crossing stop, were able to escape.

The van was driven to Gary where it was parked. The defendant Stephens, having followed the van in an automobile, entered the van and the victims were ordered to perform sexual acts at gunpoint and then they were raped by all three defendants. One victim was beaten. The agent testified to seeing abrasions on one of the victims he interviewed.

On October 15, 1984, one of the victims...