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UNITED STATES v. PENYU BAYCHEV KOSTADINOV

October 19, 1983

UNITED STATES OF AMERICA
v.
PENYU BAYCHEV KOSTADINOV, a/k/a "Penyo B. Kostadinov", a/k/a "Penu B. Kostadinov", Defendant



The opinion of the court was delivered by: EDELSTEIN

MEMORANDUM OPINION AND ORDER

 EDELSTEIN, District Judge:

 Defendant Penyu Baychev Kostadinov was arraigned on September 24, 1983 before Magistrate Nina Gershon on two counts of espionage. Magistrate Gershon ordered defendant Kostadinov be remanded without bail pending trial. The defendant was indicted on September 30, 1983 for attempted espionage in violation of 18 U.S.C. § 794(a) and for conspiracy to commit espionage in violation of 18 U.S.C. § 794(c). On October 6, 1983, he entered a plea of "Not Guilty" before the court and moved for release on bail pending trial.

 BACKGROUND

 Defendant Penyu Baychev Kostadinov, an employee of the People's Republic of Bulgaria working out of the Office of the Bulgarian Commercial Counsellor in New York City, was arrested on September 23, 1983, after meeting at the Top of the Park Restaurant in the Gulf and Western Building in Manhattan. The government alleges that at this meeting defendant Kostadinov obtained a Department of Energy document entitled "Report on Inspection of Nevada Operations Office," which was classified as "Secret" and concerned security procedures for nuclear weapons at a Nevada testing site. This document was stamped on the cover with the designation of "Secret" and "National Security Information," and bore a stamped legend that unauthorized disclosure was subject to criminal prosecution. The government further contends that at this meeting defendant Kostadinov solicited an American citizen to obtain over thirty other classified documents pertaining to sensitive subjects, including five documents classified as "Secret" and nine documents classified as "Confidential." Unbeknownst to Kostadinov the person he solicited was cooperating with the Federal Bureau of Investigation. According to the government, defendant Kostadinov informed the cooperating citizen that the documents could be obtained over a long period of time and that he looked forward to a relationship over many years.

 Defendant Kostadinov was arrested as he left the Gulf and Western building with the classified Department of Energy report in his possession. The "shopping list" of classified documents sought by Kostadinov was in turn recovered from the cooperating citizen.

 Kostadinov was arraigned the next day on September 24, 1983, before the Honorable Nina Gershon, United States Magistrate, on a complaint charging him with attempted espionage and conspiracy to commit espionage in violation of Title 18, United States Code, Sections 794(a) and 794(c). After hearing the arguments of counsel for the government and counsel for the defense, Magistrate Gershon ordered defendant Kostadinov be held without bail pending trial.

 On September 30, 1983, the Grand Jury indicted defendant Kostadinov for attempted espionage in violation of 18 U.S.C. § 794(a) *fn1" and for conspiracy to commit espionage in violation of 18 U.S.C. § 794(c). *fn2" On October 6, 1983, the defendant was arraigned on this two-count indictment, and entered a plea of "Not Guilty" before this court, presiding in Part I. At this same proceeding, defense counsel submitted a one-page letter from the Ambassador of the People's Republic of Bulgaria stating that defendant Kostadinov was immune from arrest, detention, and prosecution under the Vienna Convention on Diplomatic Relations, 23 United States Treaties 3227, 3229 and that if defendant Kostadinov were "released in [the Ambassador's] personal custody," the Ambassador would assure the court that Kostadinov would attend all court proceedings. *fn3" Defense counsel also moved for the defendant's release on bail pending trial.

 The court stated that the claim of diplomatic immunity raised by the Ambassador was not properly before the court since the Ambassador has no standing to act as defendant's legal representative. The court permitted the government an opportunity to respond to defendant Kostadinov's motion for release on bail. *fn4"

 In its papers submitted to the court defendant took the position that his motion for release on bail should be granted on the grounds that the assurance of the Ambassador of the People's Republic of Bulgaria significantly reduces the risk of flight and that under the Bail Reform Act, 18 U.S.C. § 3146, et seq., there is a strong presumption, particularly before trial, of a defendant's right to bail no matter what the offense. The government, on the other hand, pointed to the extraordinarily serious nature of the charged offense and its severe penalties, the heavy weight of the evidence against the defendant in proof of that charge, the defendant's lack of any meaningful ties to the United States, and the defendant's evident loyalty to the People's Republic of Bulgaria. The government argued that these factors together create an extreme risk that, if released, the defendant would flee to avoid prosecution and the possible penalty of lifetime incarceration. The government therefore urges the defendant be remanded.

 DISCUSSION

 The Bail Reform Act, 18 U.S.C. § 3146, et seq., like its predecessor, Fed. R. Crim. P. 46(a)(1), carries a strong presumption in favor of releasing a defendant on bail pending trial in a noncapital case. After all, "unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4, 96 L. Ed. 3, 72 S. Ct. 1 (1951). Release on the accused's personal recognizance or upon the execution of an unsecured appearance bond is the preferable release method under the Act. If such non-demanding restrictions will not reasonably assure the appearance of the accused, the court has wide latitude under the Act to impose conditions of release that in the court's judgment will assure appearance.

 The right to pretrial bail in a noncapital case, however, is not absolute. While 18 U.S.C. § 3146 does not explicitly authorize the denial of bail in a noncapital case prior to trial, *fn5" it has been repeatedly held that a defendant may be remanded without bail pending trial under extreme and unusual circumstances. United States v. Abrahams, 575 F.2d 3 (1st Cir.) (pretrial bail properly denied to defendant who had lived life of subterfuge, deceit and cunning, who was an escaped felon and who had previously forfeited a $100,000 bond to avoid a removal hearing), cert. denied, 439 U.S. 821, 58 L. Ed. 2d 112, 99 S. Ct. 85 (1978); United States v. Graewe, 689 F.2d 54 (6th Cir. 1982) (pretrial bail properly denied to defendant in light of testimony that he had participated in the murder of two informants and his associates were threatening potential witnesses subsequent to the indictment); United States v. Kirk, 534 F.2d 1262, 1280-81 (8th Cir. 1976) (pretrial bail properly revoked where there was substantial evidence that defendants were involved in the deaths of three witnesses), cert. denied, 430 U.S. 906, 97 S. Ct. 1174, 51 L. Ed. 2d 581 and 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977). The Second Circuit has made clear in dicta that courts have authority under 18 U.S.C. § 3146 to deny pretrial bail in a noncapital case. See Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978); Gavino v. MacMahon, 499 F.2d 1191, 1195 (2d Cir. 1974).

 This authority derives logically from the primary purpose of bail, which is to allow an accused person not yet tried to be free of restraint while at the same time insuring that person's presence at the pending court proceedings. When no combination of workable conditions of release will reasonably assure appearance at trial pretrial bail may be denied under 18 U.S.C. § 3146. *fn6" See Ostrer v. United States, 584 F.2d 594, 599 (2d Cir. 1978) ...


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