United States v. Miller

• Decision Date: 19 December 1985
• Docket Number: No. 85-10088-01.,85-10088-01.
• Citation: 625 F. Supp. 513
• Parties: UNITED STATES of America, Plaintiff, v. Phillip B. MILLER, Defendant.
• Court: U.S. District Court — District of Kansas

625 F. Supp. 513

UNITED STATES of America, Plaintiff, v. Phillip B. MILLER, Defendant.

No. 85-10088-01.

United States District Court, D. Kansas.

December 19, 1985.

COPYRIGHT MATERIAL OMITTED

Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., for plaintiff.

David W. Russell, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

On November 20, 1985, a grand jury indicted defendant Phillip B. Miller with one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848; nine counts of using a telephone to facilitate commission of a felony, 21 U.S.C. § 843(b); and one count of possessing 4.7 grams of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). (Rec. 1.) Miller was arrested, and appeared before Magistrate John Wooley for initial proceedings. On November 26, 1985, Magistrate Wooley held a detention hearing as provided in the Bail Reform Act of 1984, 18 U.S.C. § 3142. The prosecutor sought Miller's detention not on the ground defendant might flee before trial, but because he presented a danger to the community. Magistrate Wooley agreed and ordered Miller detained without bond pending trial. (Rec. 12.)

Defendant filed a motion for revocation or amendment of the detention order, contending Magistrate Wooley improperly interpreted and applied the provisions of the Bail Reform Act. (Rec. 8, 13.) Following a hearing on December 4, 1985, during which both parties reviewed the evidence and argued their positions, the Court agreed with defendant and concluded the government failed to establish by clear and convincing evidence no condition or combination of conditions will reasonably assure the safety of the community. The magistrate's detention order is revoked and Miller is released on bond, subject to the conditions set forth at the conclusion of this order.

The Law

Under the Bail Reform Act of 1966, the dangerousness of a criminal defendant and corresponding risk to the safety of the community could not be considered in determining whether to release the defendant prior to trial. 18 U.S.C. § 3146(a) (1982) required pretrial release of every defendant other than those charged with an offense punishable by death, unless the judicial officer concluded "such a release will not reasonably assure the appearance of the person as required." The legislative history made clear the limited inquiry permissible under the statute:

This legislation does not deal with the problem of preventive detention of the accused because of the possibility that his liberty might endanger the public, either because of the possibility of the commission of further acts of violence by the accused during the pretrial period, or because of the fact that he is at large sic might result in the intimidation of witnesses or the destruction of evidence. It must be remembered that under American criminal jurisprudence pretrial bail may not be used as a device to protect society from the possible commission of additional crimes by the accused.

Report of the House Committee, H.R.Rep. No. 1541, 89th Cong., 2d Sess. 5-6 (1966), 1966 U.S.Code Cong. & Adm.News, 2293, 2296. Yet even in the face of the statutory prohibition against considering "dangerousness," it was doubted "a defendant's powerful disposition to incur further criminal liabilities could be ignored" at the pretrial release stage. United States v. Melville, 306 F.Supp. 124, 126-27 (S.D.N.Y.1969). Other courts were less circumspect, concluding notwithstanding the statute it was within their inherent powers to consider whether a defendant posed a danger to the public, and to deny or revoke bond on that basis. See, e.g., U.S. v. Wind, 527 F.2d 672, 674-75 (6th Cir.1975), and U.S. v. Markowski, 582 F.Supp. 1276, 1279 (N.D.Ind. 1984).

Reacting to the absence of any statutory authority permitting consideration of community safety, Congress enacted the Bail Reform Act of 1984. In light of the courts' willingness to entertain those considerations notwithstanding the statutory provisions, Congress perhaps overstated the problem when it said:

The constraints of the Bail Reform Act of 1966 fail to grant the courts the authority to impose conditions of release geared toward assuring community safety, or the authority to deny release to those defendants who pose an especially grave risk to the safety of the community. If a court believes that a defendant poses such a danger, it faces a dilemma — either it can release the defendant prior to trial despite these fears, or it can find a reason, such as risk of flight, to detain the defendant (usually by imposing high money bond). In the Committee's view, it is intolerable that the law denies judges the tools to make honest and appropriate decisions regarding the release of such defendants.

S.Rep. No. 225, 98th Cong., 1st Sess. 5, reprinted in 1984 U.S.Code Cong. & Adm. News, 3182, 3188 (emphasis added; hereafter S.Rep. at ___). Under the new act, judicial officers are required to consider both the risk of flight and the safety of any other person and the community before ordering a defendant's pretrial release. In certain cases a rebuttable presumption arises that "no condition or combination of conditions of release 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).

Rather than quote at length the legislative history of the new act, the Court finds much merit in the following analysis by Chief Judge Lay of the Eighth Circuit Court of Appeals:

The major differences between the superseded Bail Reform Act and the 1984 Act pretrial release provisions relevant to this case are the prohibition against using inordinately high financial conditions to detain defendants, and the authorization to consider in determining release conditions or detention the danger a defendant may pose to the community or certain individuals. The two changes eliminate the judicial practice of employing high bail to detain defendants considered dangerous and substitute a procedure allowing the judicial officer openly to consider the threat a defendant may pose. The passage of the pretrial detention provision of the 1984 Act did not, however, signal a congressional intent to incarcerate wholesale the category of accused persons awaiting trial. Rather, Congress was demonstrating its concern about "a small but identifiable group of particularly dangerous defendants as to whom neither the impostion sic of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons." S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 Code Cong. & Ad.News at 3189. The legislative history stresses that "the decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial. * * * It is anticipated that pretrial release will continue to be appropriate for the majority of Federal defendants." Id., at 7, 12 reprinted in 1984 U.S.Code Cong. & Ad.News at 3189 (emphasis added).

Consistent with the intent expressed in the legislative history, the statutory scheme of 18 U.S.C. § 3142 continues to favor release over pretrial detention. Section 3142 provides four alternatives from which the judicial officer must choose: (1) release on personal recognizance or unsecured appearance bond, or (2) release subject to certain conditions, or (3) temporary detention to permit, among other things, revocation of conditional release, or (4) pretrial detention. The judicial officer most often will be deciding between the first and the second alternatives. The statutorily mandated progression from one choice to the next is critical: a judicial officer cannot determine that a detention hearing and the possible imposition of pretrial detention is appropriate merely by determining that release on personal recognizance will not "reasonably assure" the defendant's appearance at trial or "will endanger" the community. The judicial officer must also consider whether one of the codified conditions or any combination of the conditions will "reasonably assure" the defendant's appearance and the safety of the community. The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention.

* * * * * *

... Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial.... The structure of the statute mandates every form of release be considered before detention may be imposed.

U.S. v. Orta, 760 F.2d 887, 890-92 (8th Cir.1985) (emphasis both added and in original).

18 U.S.C. § 3142(e) and (f) set forth the findings and procedures required for an order of detention. Subsection (e) provides that the judicial officer is to order the person detained if, after a hearing pursuant to subsection (f), he finds no conditions of release will reasonably assure the appearance of the person as required and the safety of any other person and the community. The facts underlying a finding of dangerousness must, under subsection (f), be supported by clear and convincing evidence.

The judicial officer must consider the factors specified in 18 U.S.C. § 3142(g) in determining whether any form of conditional release will reasonably assure the appearance of the defendant and the safety of the community. Those factors are: the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the prosecution's evidence; defendant's history and personal characteristics, including the existence and nature of any prior criminal record; and the nature and seriousness of the danger to the community posed by defendant's release.

The offense and offender characteristics that will support the required finding for pretrial detention under subsection (e) will vary considerably

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