Appeal from orders of the District Court for the District of Connecticut (T. Emmet Clarie, Judge) detaining eight defendants without bail on charges related to the armed robbery of a Wells Fargo office. Appellants challenge, among other things, constitutionality of pretrial preventive detention because of dangerousness. Remanded as to Camacho-Negron and Gonzales Claudio, affirmed as to all other defendants, and issuance of mandate stayed. Chief Judge Feinberg concurs, partly in the majority opinion and partly in the result, with separate opinion. Judge Timbers dissents in part, with separate opinion.
Before: FEINBERG, Chief Judge, TIMBERS and NEWMAN, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
In 1984, for the first time in the two centuries of our Nation's existence, Congress enacted comprehensive national legislation providing for the preventive detention on grounds of dangerousness of those awaiting trial. Bail Reform Act of 1984, Pub. L. No. 98-473, § 203(a), et seq., 98 Stat. 1976 (codified at 18 U.S.C.A. § 3141 et seq. (West Supp. 1985)). The Bail Reform Act of 1966 had authorized pretrial detention on grounds of dangerousness only for those accused of capital offenses, Pub. L. No. 89-465, § 3(a), 80 Stat. 214, 215-16 (formerly codified at 18 U.S.C. § 3148 (1982)), but no reported decision has adjudicated the constitutionality of that provision. This appeal challenges the constitutionality of preventive detention for dangerousness and the lawfulness of various steps taken in the application of the new statute. The issues arise on a consolidated appeal from orders of the District Court for the District of Connecticut (T. Emmet Clarie, Judge) detaining without bail eight defendants indicted on charges related to the September 12, 1983, armed robbery of a Wells Fargo office in West Hartford, Connecticut. For separate reasons that follow, a majority of the panel concludes that continued pretrial detention of the defendants because of dangerousness violates the Constitution. All of the other challenges of all defendants are rejected.
The indictment, returned August 28, 1985, charged seventeen persons, including appellants Isaac Camacho-Negron, Elias Samuel Castro-Ramos, Luis Alfredo Colon Osorio, Hilton Fernandez-Diamante, Orlando Gonzales Claudio, Ivonne Melendez-Carrion, Filiberto Ojeda Rios, and Juan Enrique Segarra Palmer, with violating the Hobbs Act, 18 U.S.C. § 1951 (1982). Other charges arising out of the Wells Fargo robbery were also made against Ojeda Rios and Segarra Palmer. All of the appellants were arrested on August 30, seven in Puerto Rico and Segarra Palmer in Dallas, Texas.
The seven arrested in Puerto Rico were brought before United States Magistrate Justo Arenas in San Juan on the day of their arrest. The Magistrate stated that he would conduct removal proceedings two days later, on Sunday, September 1. During this initial presentment, the Government moved for pretrial detention pursuant to 18 U.S.C. § 3142(f). For convenience, all provisions of the Bail Reform Act of 1984 will be referred to only by the appropriate section of Title 18. Appellants then moved for a five-day continuance of their bail hearings and requested postponement of removal proceedings until completion of the bail hearings. The Government objected to postponement of removal proceedings. The Magistrate ordered that removal proceedings occur as originally scheduled on September 1. Appellants then withdrew their motion for a five-day continuance and requested immediate bail hearings. Following a brief recess, the Government moved for a three-day continuance of bail hearings, contending that time was required to analyze and process weapons and other items that it had just learned had been seized pursuant to search warrants. The Magistrate granted the Government's motion and maintained the September 1 date for the removal proceedings. The Magistrate's scheduling rulings were affirmed by the District Court for the District of Puerto Rico on August 31. On September 1, the seven appellants were ordered removed to the District of Connecticut.
Segarra Palmer was brought before United States Magistrate William F. Sanderson, Jr. in Dallas on the day of his arrest. Advised of his right to a removal hearing, Segarra Palmer admitted that he was the person named in the indictment. The Magistrate on his own motion decided to proceed with a detention hearing pursuant to Section 3142(f)(2). Segarra Palmer was advised by the Magistrate that he could elect a bail hearing immediately in Dallas or, after removal, in Connecticut. Segarra Palmer chose the latter option. The Magistrate then ordered his removal to the District of Connecticut.
The seven appellants arrested in Puerto Rico arrived in Hartford, Connecticut, on September 3 and were promptly presented before United States Magistrate F. Owen Eagan. Appellants were represented by counsel. The Government stated, with respect to bail hearings, that its three-day continuance, granted in Puerto Rico, would expire on September 5. The Government took the position that the three days of the Labor Day weekend were excluded from the three-day continuance. The Government announced its readiness to begin bail hearings on September 5. Appellants then moved for a continuance until September 17. Magistrate Eagan granted a continuance until September 13. On September 9, Segarra Palmer arrived in Hartford and was promptly presented before Magistrate Eagan. Segarra Palmer requested and was granted a continuance of his bail hearing until September 13, the same day previously set for the hearings of his co-defendants.
Hearings began on September 13, focusing initially on various motions made by some or all of the defendants. The hearings continued on Saturday, September 14, and resumed on Tuesday, September 17. The Magistrate decided to conduct the evidentiary phase of the bail hearings individually for each defendant. The sequence of hearings, though not the fact of separate hearings, was agreed to by the defendants. The hearings occurred from September 17 through October 7.
With respect to all eight appellants the Government presented evidence of the risks of both flight and dangerousness. The evidence concerned the Wells Fargo robbery, in which $7.6 million was taken, and each appellant's connection with a group known as "Los Macheteros" (the machete wielders), which had claimed responsibility for the robbery. The group was identified as a paramilitary, terrorist organization that had committed various crimes, including the Wells Fargo robbery, to advance the cause of Puerto Rican independence. The evidence pertinent to the claims of each appellant will be discussed as those claims are considered. At the conclusion of the hearings, the Magistrate ordered Camacho-Negron, Colon Osorio, Ojeda Rios, and Segarra Palmer detained because of both flight and dangerousness, Fernandez-Diamante detained solely because of flight, and Castro-Ramos and Melendez-Carrion released on bail of $500,000 and $250,000, respectively. Judge Clarie affirmed the Magistrate's orders of detention with respect to Camacho-Negron, Colon Osorio, Fernandez-Diamante, Gonzales Claudio, Ojeda Rios, and Segarra Palmer, though affirmance with respect to Camacho-Negron was solely on grounds of dangerousness. However, the District Judge, acting on the Government's appeal, reversed the others setting bail for Castro-Ramos and Melendez-Carrion and ordered both detained on grounds of both flight and dangerousness. Thus, as the defendants' appeal comes to this Court, two defendants, Camacho-Negron and Gonzales Claudio, have been detained solely because of dangerousness, Fernandez-Diamante has been detained solely because of flight, and the other five defendants have been detained on grounds of both flight and dangerousness.
II. Procedural Challenges
We consider first a series of contentions, advanced by some or all of the appellants, that the Government failed to observe procedural requirements of the Bail Reform Act in the events leading up to the entry of detention orders. Most of these contentions concern compliance with the time requirements of the Act, specified in section 3142(f). Subsection (f) provides that a detention 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." It further provides, "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."
The initial objection is to the decision of the Magistrate in Puerto Rico to schedule the removal hearing prior to the detention hearing. Neither the Bail Reform Act nor Fed. R. Crim. P. 40 governing removal hearings specifies the sequence for a detention hearing and a removal hearing. We agree with the conclusion recently reached by the Seventh Circuit that a removal hearing may precede a detention hearing, leaving the latter normally to occur in the district of prosecution after removal. United States v. Dominguez, 783 F.2d 702, 704-05 (7th Cir. 1986). There is no indication that Congress, in specifying that a detention hearing shall occur, absent continuances, upon the defendant's "first appearance" before a judicial officer, considered the context of an arrest in a district other than the district of prosecution. As the Seventh Circuit pointed out, it is highly unlikely that Congress would have wanted detention hearings to occur in districts scattered across the country in which those accused in multi-defendant cases might happen to be arrested. The decision whether to seek detention and the evidence necessary to support a finding of dangerousness and risk of flight sufficient to justify detention will normally be located primarily in the district of prosecution. We recognize that the evidence a defendant might wish to present concerning roots in the community and other factors that might meet the Government's evidence will be more available in the district of arrest whenever he is arrested in the district of his residence. Though we do not believe that circumstance requires that the detention hearing occur, prior to removal, in the district of arrest, the proximity of evidence need not be totally disregarded by magistrates in such districts. Where practical, consideration should be given to affording the defendant, arrested in his district of residence, an opportunity in that district promptly to present locally available evidence pertinent to the issue of pretrial release so that a transcript of such evidence can be prepared and furnished to the judicial officer making the detention decision in the district of prosecution.
Appellants next contend that it was improper for the Magistrate in Puerto Rico to grant the Government's request for a three-day continuance of the detention hearing after the Government had initially announced its readiness for an immediate hearing. We see no reason why the Government was not entitled to change its mind and seek the three-day continuance provided by the Act. The decision was not capricious, having been made only after learning the results of searches conducted on the day of the arrests.
Appellants next contend that Saturdays, Sundays, and holidays are included in the three-day period of the continuance the Government may request and that the continuance granted on August 30 included the three-day Labor Day weekend of August 31-September 2. The argument is based on a comparison of section 3142(f), which makes no mention of excluding weekends and holidays from the three- and five-day periods of authorized continuances, with section 3142(d), which explicitly excludes weekends and holidays from the ten-day detention period authorized for aliens and for citizens who were awaiting trial or sentence or were on parole at the time of the alleged offense. The Government responds that the omission of an exclusion for weekends and holidays from section 3142(f) does not mean that Congress meant to include them; rather, it means that Congress was legislating in light of Fed. R. Crim. P. 45(a), which, on the date of enactment of the Bail Reform Act, October 12, 1984, specified that weekends and holidays were to be excluded in computing allowable time periods of less than seven days (currently less than eleven days). To this appellants reply that Criminal Rule 45(a) does not apply to time periods set forth in statutes, a conclusion drawn from comparison with the corresponding Civil Rule 6(a), which explicitly applies to time periods prescribed by statute.
We do not believe the difference in wording of Civil Rule 6(a) and Criminal Rule 45(a) on this point has any significance. We have applied the time computation provisions of Rule 45(a) in determining compliance with time requirements of a treaty. See Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983) (per curiam). We agree with the Government that time computation for the short intervals set forth in section 3142(f) is governed by Rule 45(a). But see United States v. Hurtado, 779 F.2d 1467, 1474 n.8 (11th Cir. 1985). Hence the Government's readiness to proceed with detention hearings in Connecticut on September 5 was timely. In any event, since we hold that the pertinent appearance for purposes of section 3142(f) is the first appearance before a judicial officer in the district of prosecution, the Government was entitled to seek a continuance of three days from September 3. Though it would have been preferable for the Government to seek the three-day continuance on September 3 upon the defendants' first appearance before the Magistrate in Connecticut, we see no reason to disregard the three-day continuance granted by the Magistrate in Puerto Rico.
Some of the appellants claim that Magistrate Eagan erred in granting their motions for a continuance. The seven defendants arrested in Puerto Rico sought a fourteen-day continuance and were granted a ten-day continuance. Their complaint is not that the delay was four days too short, but that it was too long. Their principal point is that no continuance would have been needed had the detention hearings been held in Puerto Rico prior to removal. Since, as we have ruled, they were not entitled to detention hearings prior to removal, they cannot complain that removal created circumstances justifying the continuance that they sought. The Magistrate granted the continuance to afford time to obtain witnesses and affidavits from Puerto Rico, to enable the English-speaking defense attorneys in Connecticut to obtain interpreters and effectively interview their clients, and to permit the defense attorneys in Puerto Rico an opportunity to visit their clients in Connecticut. These were substantial reasons pertinent to protection of the rights of the defendants. The continuance was not for the convenience of counsel, a ground condemned in United States v. Al-Azzawy, 768 F.2d 1141, 1146 (9th Cir. 1985). Nor is there merit to Segarra Palmer's claim that it was error to grant his motion for a four-day continuance without written findings of good cause. The "good cause" requirement of section 3142(f) applies only to a defendant's motion for a continuance in excess of five days.
Segarra Palmer also contends that the continuance provisions of the Act were violated by the ten-day period that elapsed during his removal from Dallas to Hartford. Magistrate Eagan ruled that Segarra Palmer's uncounseled waiver of a removal hearing entitled him to be returned to Dallas, if he preferred, so that his right to a removal hearing could be exercised or waived with the benefit of counsel. In Hartford, Segarra Palmer, with the advice of counsel, waived this opportunity. He appears to contend, nevertheless, that the transportation time amounted to a "continuance" of his detention hearing, for which no finding of good cause was made. His argument fails in light of our ruling that he was not entitled to a detention hearing prior to removal. The detention hearing "clock" began to run at his first appearance in Connecticut. Segarra Palmer also contends that ten days was an undue amount of time to accomplish his removal. Though expeditious removal may occur prior to the start of the detention hearing "clock," the congressional purpose of assuring prompt detention hearings would be defeated if removal were accomplished at a needlessly slow pace. We doubt that ten days was the minimum time required to remove Segarra Palmer from Dallas to Hartford. However, we have no basis to rule from the sparse record concerning the details of the transportation that the arrangements made by the Government were so dilatory as to warrant the sanction of release. This is an aspect of detention procedure, however, with which the Government should be concerned in future cases.
The final challenge concerning scheduling is that Magistrate Eagan did not act with sufficient expedition in the conduct of the detention hearings. The record belies the claim. It reveals a conscientious judicial officer, besieged with a barrage of motions, endeavoring to act with scrupulous fairness to all defendants, while mindful of the fact that the defendants remained incarcerated throughout the process of determining whether to grant the Government's motions for detention orders. The objection that the Magistrate adjourned the hearings on September 16 to honor the request counsel had made to observe Rosh Hashanah is frivolous, especially in light of the Magistrate's decision to keep the hearings in session on Saturday, September 14, to replace the Monday religious holiday.
Somewhat more troubling is the contention that time was needlessly consumed by the Magistrate's decision to hold individual detention hearings and by the failure of the District of Connecticut to assign additional magistrates or district judges to share the task of conducting these individual hearings. The overall interval needed to conduct the hearings lasted from September 13 to October 7, a period by no means excessive in view of the fact that eight defendants required hearings. Though we do not believe any error warranting relief was committed by proceeding with individual hearings before a single judicial officer, we think that in future multi-defendant cases the issues of whether to hold a joint detention hearing or whether to assign more than one judicial officer should receive more searching attention.
The choice of joint versus individual hearings must rest largely in the discretion of the judicial officer to whom the hearing task is entrusted. A joint hearing, with the active participation of numerous defense counsel, may sometimes consume more time than a series of individual hearings. In this case there was an attempt to conduct jointly some facets of the proceedings, which led to what Judge Clarie characterized as confusion and chaos. One approach worth considering is to proceed jointly at least to receive the testimony of the Government witnesses common to all, or virtually all, defendants. in this case, for example, a special agent of the Federal Bureau of Investigation gave testimony about the offense and about the background of "Los Macheteros" that had to be repeated in whole or in part seven times. Consolidation to receive that testimony, followed by individual hearing to receive evidence peculiar to each defendant, might prove useful.
Whether to use one or more judicial officers is also a matter largely within the discretion of those with responsibility for conducting the business of the judicial district as a whole. Surely all the judicial business of a district need not come to an abrupt stop simply because the Government seeks detention orders in a multi-defendant case. On the other hand, detention orders deserve special consideration. Though the Act could not possibly be thought to require assignment of each defendant's hearing to a different judicial officer, it would not seem to be an undue imposition on the resources of a judicial district with four magistrates in close proximity to enlist two of them to share the detention hearing assignment. We disagree with the District Judge that the possibility of disparate treatment between defendants is a valid reason for not assigning the hearings to more than one judicial officer. Assessing the entirety of what occurred in this case, however, we see no basis for granting any relief on grounds of undue delay.
Appellants next contend that they did not receive proper notice of the grounds on which the Government would seek pretrial detention. Section 3142(e) authorizes detention if no conditions of release will reasonably assure "the appearance of the person as required and the safety of any other person and the community." Appellants argue that they are entitled to have the Government specify in its request for a detention order whether detention will be sought on grounds of flight or dangerousness or both. They point out that evidence to oppose a request for detention on each of the two statutory grounds might well be different. The Government responds, first, that the statute does not specify that the motion for detention must state the grounds relied on, and, second, that imposing such a requirement "might well result in the government's simply declaring in every case that detention is warranted on both grounds." Brief for Appellee at 79. We reject this latter argument out of hand. It is astonishing for a prosecutor to contend that if grounds for relief sought must be specified, the Government will routinely allege all grounds mentioned in the governing statute. Every lawyer has an obligation to file pleadings only in a good-faith belief that valid grounds exist for the relief sought, an obligation that should weigh heavily with those exercising the power of public prosecution. See United States v. Berger, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
The response that specification of grounds is not required is equally without merit. Though the statute does not contain such a requirement, it is plainly set forth in Rule 47 of the Federal Rules of Criminal Procedure: "A motion . . . shall state the grounds upon which it is made . . . ." The Government, which properly avails itself of the time computation provisions of Rule 45, is equally obliged to respect the motion practice provisions of Rule 47. The requisite "grounds" for a detention motion should include specification of flight, dangerousness, or both, depending on the prosecutor's good-faith belief in the grounds that can be established. in addition, if detention is sought under section 3142(f)(2)(B) on the ground of risk of threat or injury to a witness or juror, or other obstruction of justice, that specific ground should be alleged. In accordance with Rule 47, the motion may be made orally, if permitted by the Court. In this case the detention motion was made orally before the Magistrate in Puerto Rico, and approval for proceeding on that oral motion was explicitly given by the Magistrate in Connecticut.
The lack of compliance with Rule 47 in this case does not, however, warrant any relief from the detention orders. The Government did not allege risk of harm to a witness or juror, the type of ground that would normally require specification in order to mount a proper defense. Examination of the detention hearings in this case indicates that the defendants fully challenged the Government's generalized motion by disputing the risks of both danger to the community and flight.
The final procedural contention concerns a claim of non-compliance with 18 U.S.C. § 2518(9), which prohibits the introduction at any hearing of evidence derived from electronic surveillance unless each party has been furnished at least ten days before the hearing with a copy of the court order for the surveillance and the accompanying application. The purpose of this requirement is to afford the defendant "an opportunity to make a pretrial motion to suppress. . . . ." S. Rep. No. 1097, 90th Cong., 2d Sess. 105-06, reprinted in 1968 U.S. Code Cong. & Ad. News 2112, 2195. Section 2518(9) also provides that the court may waive the ten-day requirement upon a finding that it was not possible to furnish the required documents timely and that no prejudice will result. In this case the District Court made the requisite findings, which are abundantly supported in the record. The bulk of the required material was furnished a week before the detention hearing of the first defendant, and all defendants were able to make a motion to suppress the results of the electronic surveillance.
III. The Findings of Risk of Flight and Dangerousness
Six appellants, all except Ojeda Rios and Segarra Palmer, challenge the findings that they present a risk of flight or danger to the community, or, in some cases, both, sufficient to support their detention. In this Circuit findings with respect to risk of flight or dangerousness may not be disturbed unless clearly erroneous. United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986); United States v. Colombo, 777 F.2d 96, 100 (2d Cir. 1985); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985). At least that is the standard of review with respect to the ascertainment of historical facts underlying the conclusion that the defendant is a risk to flee or poses a danger to the community. Any error in the application of the pertinent legal standard is of course subject to broader review. The ultimate determination of risk of flight would normally seem to be as subject to the "clearly erroneous" standard of review as the underlying historical facts. On the other hand, "danger to the community" is not as clear a concept as risk of flight and has not been fully developed as a basis for pretrial detention. Application of the "dangerousness" ground for pretrial detention may therefore implicate legal interpretations to a degree somewhat greater than the ground of risk of flight, with a corresponding broader scope of review.
Evidence presented against all eight appellants, including the six who challenge the detention findings, provided ample basis for believing, by the "clear and convincing" standard applicable to findings of dangerousness, section 3142(f), that each is an active member of Los Macheteros. In addition to claiming responsibility for the Wells Fargo robbery, this organization has undertaken various acts of violence, including an operation known as "La Gaviota," in which nine aircraft of the Puerto Rico National Guard were destroyed by explosives at the Muniz Air Base in Puerto Rico.
Fernandez-Diamante was ordered detained solely for risk of flight. Evidence showed that he had knowledge of and access to Los Macheteros safe houses, that he had assisted a convicted felon, formerly a member of Los Macheteros, to escape detection, and that he had recently traveled to Costa Rica and Panama for purposes not explained to customs officials, though his ability to finance such travel was placed in doubt by his unemployment for the three months preceding his arrest and his qualification for subsidized housing. A search of his home revealed documents reflecting contacts in foreign countries and signs to be used in making contacts.
Colon Osorio was ordered detained because of both risk of flight and dangerousness. Evidence showed that he had been identified by Ojeda Rios as a valuable person in military operation of Los Macheteros. He had planned with Ojeda Rios an operation known as "El Chivo" to bribe prison guards to arrange the release of imprisoned members of the organization, including an informant who was slated to be murdered. The plan was not carried out. A search of his home disclosed military manuals, code books, twenty remote control receivers adapted to complete electrical circuits of the type used for explosive devices, and booby trap switches used to fire explosive devices. He long history of using aliases.
Castro-Ramos, though admitted to bail by the Magistrate, was ordered detained by the District Judge because of both flight and dangerousness. Upon his his arrest, he told the arresting agents that he would remember their faces and that their families would pay. He has access to a Machetero safe house. Found at his house was an envelope containing his brother-in-law's passport with the photo obliterated and several passport-size photos of Castro-Ramos. Evidence indicated that he had participated in three Machetero operations and has supervisory authority over all armed actions of the organization. He has previously been convicted of possession of a large quantity of chemical explosives.
Camacho-Negron was ordered detained by the Magistrate because of both flight and dangerousness; the District Judge, considering only the finding of dangerousness, upheld it. Evidence indicated that Camacho-Negron had played a role in the La Gaviota operation in which National Guard planes had been destroyed. Though acknowledging that he was on duty in the Guard and stationed at the Muniz Air Base the day of the attack, he contends he could not have been involved since he had recently broken his leg and was wearing a substantial cast. However, that circumstance does not preclude his having planned the operation and served as an inside man. His role in La Gaviota was confirmed by Segarra Palmer in an intercepted communication.
Gonzales Claudio was ordered detained solely for dangerousness. Evidence indicated that he participated in the La Gaviota attack and in another Machetero operation in which a bus carrying United States Navy personnel was fired upon, resulting in the deaths of two sailors and the wounding of nine others.
Melendez-Carrion, though admitted to bail by the Magistrate, was ordered detained by the District Judge on grounds of both flight and dangerousness. Evidence indicated that she was a member of a Machetero combat unit and had been trained in sabotage and weapons assembly. On one occasion she participated with other Machetero members in a critique of an operation in which a federal courthouse was attacked with a rocket. A search of her home disclosed a semi-automatic pistol, two .357 pistols, a submachine gun, and other weapons and ammunition. The evidence as to flight included the following circumstances. She had been offered access to a Machetero safe house shortly before her arrest and thus had knowledge of its location and the opportunity to use it to escape detection. A search of her home revealed articles of disguise. She had been observed repeatedly driving evasively in an effort to avoid surveillance.
We are satisfied that all of the findings of flight and dangerousness ultimately made by the District Judge are adequately supported by the evidence.
IV. The Validity of Preventive Detention
Since appellants' challenges to the sufficiency of the evidence to support the findings of dangerousness are without merit, the validity of preventive detention under section 3142(e) must be faced. That is an issue not yet considered in this Circuit. See United States v. Colombo, supra, 777 F.2d at 101 n. 2. Before facing the constitutional challenges to the provision, we consider whether section 3142(e) can reasonably be ...