United States v. Mitchell, CR-83-0130-MHP.

• Citation: 600 F. Supp. 164
• Decision Date: 04 January 1985
• Docket Number: No. CR-83-0130-MHP.,CR-83-0130-MHP.
• Parties: UNITED STATES of America, Plaintiff, v. Felix Wayne MITCHELL, Nathan Charles Lewis, Morris McClendon, Marcus Wayne Edmundson, Alvin Gay, Donald Grogans, Randy Lamont Brown, aka Randy Lamont Patterson, Billy Ray Brown and Tony Louvell Burton, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

600 F. Supp. 164

UNITED STATES of America, Plaintiff, v. Felix Wayne MITCHELL, Nathan Charles Lewis, Morris McClendon, Marcus Wayne Edmundson, Alvin Gay, Donald Grogans, Randy Lamont Brown, aka Randy Lamont Patterson, Billy Ray Brown and Tony Louvell Burton, Defendants.

No. CR-83-0130-MHP.

United States District Court, N.D. California.

January 4, 1985.

Joseph Burton, Asst. U.S. Atty., San Jose, Cal., Michael Howard, Asst. U.S. Atty., Tax Div., George Niespolo, Criminal Div., San Francisco, Cal., for plaintiff.

William Lathan Osterhoudt, Hallinan, Osterhoudt & Poplack, San Francisco, Cal., for Felix Wayne Mitchell.

Robert Lyons, Hayward, Cal., for Nathan Charles Lewis.

Gregor D. Guy-Smith, San Francisco, Cal., for Marcus Wayne Edmundson.

Richard Mazer, San Francisco, Cal., for Alvin Gay.

Charles Gretsch, San Francisco, Cal., for Donald Grogans.

Marcus Topel, Topel & Goodman, San Francisco, Cal., for Randy Lamont Brown.

Paul D. Wolf, Oakland, Cal., for Billy Ray Brown.

John Williams, San Jose, Cal., for Tony Louvell Brown.

OPINION

PATEL, District Judge.

Defendants Nathan Lewis and Felix Mitchell have been in custody since February 1983. On November 6 and 19, 1984, respectively, they moved for reconsideration of their bail conditions. In response to these motions the Government moved for a detention hearing pursuant to § 3142 of the Bail Reform Act of 1984 ("BRA 1984"), Comprehensive Crime Control Act of 1984, Tit. II, Ch. 1, Pub.L. No. 98-473, 98 Stat. 1837 (October 12, 1984) (to be codified at 18 U.S.C. § 3141 et seq.). Defendants dispute the applicability of the Act to them on retroactivity and ex post facto grounds and challenge its constitutionality under the Eighth Amendment and the Due Process Clause of the Fifth Amendment.

Having carefully considered the parties' papers and oral argument the court concludes that the Bail Reform Act of 1984 does not apply to defendants Lewis and Mitchell and hereby denies the Government's motion for a detention hearing. As discussed in detail below, this ruling is based upon the finding that neither the legislative history of the Act nor its statutory provisions indicate that Congress intended BRA 1984 to be applied retroactively to individuals already admitted to bail pursuant to the Bail Reform Act of 1966 ("BRA 1966"), 18 U.S.C. §§ 3141-3152 (repealed by BRA 1984). In light of this finding on retroactivity the court need not and does not reach the ex post facto issue or the constitutional challenges to BRA 1984 raised by defendants.

Background

Defendants Felix Mitchell and Nathan Lewis were indicted along with several other individuals on February 18, 1983 on charges of conspiracy to distribute narcotics and income tax evasion. The offenses for which they were indicted occurred between 1976 and 1983. Defendants were arraigned in March of 1983 and bail was set at $2.5 million for Mitchell and $1.5 million for Lewis. A trial before Judge Orrick commenced in June 1983 and ended in a mistrial one month later. In December 1983, while defense motions arising from the mistrial were on appeal, this court reduced Mitchell's bail to $1 million. The court reduced Lewis' bail to $750,000 in July 1984. Defendants have not posted bail and have been in custody since their arrest nearly two years ago.

On October 22, 1984 Mitchell again moved for a reduction of bail. The court ruled it would reconsider bail conditions only upon a showing of "changed circumstances" since the previous bail order. Mitchell renewed his motion on November 19, supplementing his prior motion with evidence that he had an offer of employment in Oakland. Meanwhile, Lewis had moved for reconsideration of his bail on November 6, 1984.

In response to these motions the Government moved on November 30 for a detention hearing pursuant to § 3142 of BRA 1984. Defendants responded on December 10 challenging the constitutionality of the statute and its applicability to them. On December 11 the court heard oral argument and, since the Government in its moving papers had not addressed the issues raised by defendants, ordered the Government to file papers on the retroactivity and ex post facto issues. The Government responded on December 14 and the court took the matter under submission.

Discussion

Standards for Retroactive Application of Statutes

Laws are presumed to be prospective in application absent express Congressional intent to the contrary. Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964). In Greene, a government contract employee who lost his job when the Department of the Navy revoked his security clearance sought compensation from the Defense Department. The Court considered which of two Defense Department personnel regulations applied to petitioner's claim — the regulation in effect at the time petitioner initiated his action against the Department or a superseding regulation which was less favorable to petitioner, promulgated while the claim was being processed. The Court refused to give the superseding regulation retroactive effect because petitioner's rights had "matured and were asserted" under the prior regulation. The Court wrote,

"the first rule of construction is that legislation must be considered as addressed to the future, not to the past ... and a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be `the unequivocal and inflexible import of the terms, and manifest intention of the legislature.'"

376 U.S. at 160, 84 S.Ct. at 621 (quoting Union Pacific Railroad Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179 (1913)).

The rationale of Greene is persuasive here. Defendants Mitchell and Lewis were admitted to bail and had their bail conditions modified under the provisions of the Bail Reform Act of 1966. That Act granted defendants a statutory right to bail pending trial subject only to conditions designed to assure their appearance before the court. 18 U.S.C. § 3146 (1966) (repealed by BRA 1984); United States v. Melville, 306 F.Supp. 124, 126 (S.D.N.Y. 1969) ("There is no authority under existing law for confining defendants in noncapital cases prior to trial on the ground that they are likely to commit crimes other than the one already charged against them."). Although defendants had not yet met the bail conditions imposed by the court they without question had asserted their statutory right.

In passing the Bail Reform Act of 1984 Congress intentionally altered the philosophy underlying the BRA 1966 and for the first time created statutory authority for preventive detention. The legislative history states, "BRA 1984 marks a significant departure from the basic philosophy of the Bail Reform Act of 1966, which is that the sole purpose of bail laws must be to assure the appearance of the defendant at judicial proceedings." S.Rep. No. 225, 98th Cong., 1st Sess. 3 (1983) ("S.Rep."). The new Act allows for denial of bail if a judicial officer determines following a hearing 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." BRA 1984 § 3142(e).

The statute creates a rebuttable presumption that certain defendants are to be denied bail. It reads in relevant part:

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 for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances, Import and Export Act (21 U.S.C. § 951 et seq.) ...

BRA 1984 § 3142(e). Since Lewis and Mitchell were indicted for violations of the Controlled Substances Act with maximum sentences of greater than ten years, they would be subject to the rebuttable presumption that they be detained without bail should a judicial officer find there was probable cause to believe they committed the offenses with which they are charged. Indeed, the Government argues that Lewis and Mitchell should be subject to the rebuttable presumption on the basis of the indictment alone. See United States Memorandum on Mitchell/Lewis Detention Hearings at 9.

Without deciding whether the indictment alone is sufficient to establish probable cause, BRA 1984 clearly mandates that upon such a finding these defendants are subject to the rebuttable presumption that they be detained without bail. In contrast, under BRA 1966 they were entitled to their liberty pending trial subject only to their ability to meet the conditions already set by the court. The court finds that the provisions of BRA 1984 significantly alter the statutory right to bail previously asserted by Lewis and Mitchell under BRA 1966. Accordingly, the court cannot apply BRA 1984 retroactively to them absent express authorization from Congress.

Construction of the Bail Reform Act of 1984

Neither the language of BRA 1984 nor its legislative history addresses the question of whether its provisions should be given retroactive effect. This silence is conspicuous inasmuch as Congress clearly recognized the "substantial change" this Act makes in existing law. S.Rep. at 10. See also S.Rep. at 3 (the Act "substantially revises the Bail Reform Act of 1966."); S.Rep. at 12 (pretrial detention "represents a significant departure from the Bail Reform Act."). Congress knows how to fashion retroactive legislation when it so chooses. See, e.g., Lehmann v. United States ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957). Presumably, had Congress intended the substantial changes it intentionally wrought in existing bail law to be applied retroactively it would have so stated.

The legislative history does state that the pretrial detention...