The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge:
This motion involves the newly enacted Bail Reform Act of 1984, part of the Comprehensive Crime Control Act, 18 U.S.C. § 3141 et seq. (the "Act") which was signed into law on October 12, 1984. Specifically, Defendant Donald Payden ("Payden") challanges aspects of the pretrial detention provisions. 18 U.S.C. § 3142.
Defendant Payden was arrested on August 3, 1984 and bail was set in the amount of $250,000. Defendant has not yet posted that bail. The original indictment was filed on August 13, 1984 and the defendant was arraigned on August 23, 1984. The original indictment charged Payden and another defendant with conspiracy to violate the federal narcotics laws, in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute heroin in violation of 21 U.S.C. § 841. A superseding indictment was filed on October 10, 1984 and the defendant was arraigned on that indictment on October 17, 1984. The superseding indictment added a third defendant and further charged Payden with organizing and supervising a continuing criminal enterprise, in violation of 21 U.S.C. § 848. On October 31, 1984, the government moved this court to detain preventively defendant Payden under the newly enacted bail provisions. On October 31st the court scheduled a hearing and gave the defendant and the government an opportunity to research the issues raised by the new statute and its application to defendant Payden. A hearing was conducted on November 16, 1984. The defendant and the government filed post-hearing briefs.
The defendant raises a number of arguments against both the constitutionality of the act and the application of the act to this particular situation. First, Payden contends that the application of the Bail Reform Act to him violates the prohibition against ex post facto laws. Second, Payden contends that because the government did not move to apply the statute on his first appearance before the court, as provided by Section 3142, pretrial detention should be denied. Third, defendant contends that the Bail Reform Act is unconstitutional because it lacks adequate procedural safeguards and is vague. Defendant further contends that the period of his pretrial detention would be protracted in violation of the "excessive bail" clause of the Eighth Amendment. Finally, Payden contends that should the Act be found to apply in this case, the government has not satisfied its burden, under the terms of the statute, of proving that no condition or combination of conditions of release will reasonably assure the defendant's presence at trial and the safety of the community.
Defendant Payden contends that application of the statute to him violates the prohibition against ex post facto laws
because the law in effect at the time of the alleged offense, "from on or about January 1, 1979, and continuously thereafter up to and including the date of the filing of this Indictment," permitted bail in the defendant's situation. This objection to the application of the statute is denied.
The ex post facto prohibition applies to "any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981) (quoting Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 325-26, 18 L. Ed. 356 (1867)). The ex post facto prohibition also applies to laws which alter substantial rights. Beazell v. Ohio, 269 U.S. 167, 171, 70 L. Ed. 216, 46 S. Ct. 68 (1925); Simpson v. Wyrick, 527 F. Supp. 1144, 1146 (W.D. Mo. 1981).It is not an ex post facto violation "if the change is merely procedural, and does "not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt." Weaver v. Graham, supra, 450 U.S. at 29 n.12 (quoting Hopt v. Utah, 110 U.S. 574, 590, 28 L. Ed. 262, 4 S. Ct. 202 (1884)).
The first step is determining whether the statute is punitive. In Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984), the Supreme Court established a test for determining whether a statute is punitive or regulatory. The Court in Schall held that pretrial detention of accused juvenile delinquents under the New York Family Court Act is regulatory, not punitive. Under Schall, the test for determining whether pretrial detention is punitive or regulatory is "whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]"." Id. at 2413 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-89, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963)). See also Bell v. Wolfish, 441 U.S. 520, 538, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) ("A Court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.").
The pretrial detention provisions of the Bail Reform Act do not prescribe punishment and are therefore not violative of the first two types of ex post facto prohibitions. The Act "is not intended to promote the traditional aims of punishment such as retribution or deterrence, but rather . . . "to curtail reasonably predictable conduct, not to punish for prior acts." S. Comm. on the Judiciary, Comprehensive Crime Control Act of 1983, S. Rep. No. 225, 98th Cong., 1st Sess. 8 (1983) [hereinafter cited as Senate Crime Control Report]. Moreovere, pretrial detention authorized by statute is not excessive in relation to this "alternativepurpose" of curtailing reasonably predictable future conduct. Pretrial detention can only be ordered if the government shows by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the safety of the community and the defendant's presence at trial. In other words, before ordering detention, the court is required to find that detention is the only method available to achieve Congress's "alternative purpose" of curtailing possible future conduct. Thus, under the Supreme Court's decision in Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979), the Act is "a constitutionally permissible regulatory, rather than penal, sanction," Senate Crime Control Report, supra, at 8, accord United States v. Edwards, 430 A.2d 1321, 1331-33 (D.C. App. 1981) (en banc), cert. denied, 455 U.S. 1022, 72 L. Ed. 2d 141, 102 S. Ct. 1721 (1982), and does not violate the first two types of ex post facto prohibitions.
The Act does not affect the elements of the offense that need to be proved by the government nor does the Act limit any defense available to the defendant and therefore is not an ex post facto law in that regard. See Dobbert v. Florida, 432 U.S. 282, 292, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). The ex post facto provisions in the Constitution were not intended "to limit the legislative control of remedies and modes of procedure which do not affect matters of substance." Id. at 293 (quoting Beazell v. Ohio, 269 U.S. 167, 171, 70 L. Ed. 216, 46 S. Ct. 68 (1925). Thus, even though the Act may work to the disadvantage of the defendant, it is not prohibited by the ex post facto provision. Therefore, the court finds that the application of the pretrial detention statute to defendant Payden is not violative of the ex post facto provision of the constitution.
FAILURE TO MOVE TO APPLY THE ACT ON DEFENDANT'S FIRST APPEARANCE
Defendant Payden also objects to the application of the pretrial detention provisions because the government did not move to apply the Act on his first appearance before the court. Defendant was arraigned on the superseding indictment on October 17, 1984 and the government moved to detain the defendant under the Act on October 31, 1984. Payden contends that this is a procedural defect which would preclude application of the Act to this case. Payden further contends that the provision relating to the application of the Act on a defendant's first appearance indicates that Congress did not intend the Act to be applied to those in custody at the time the Act became effective. The relevant portion of the statute provides:
The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that perrson, or the attorney for the Government, seeks a continuance.
18 U.S.C. § 3142(f). Thus, the statute does require that a hearing be held on the defendant's first appearance. This is not, however, the only situation that a hearing may conducted under the Act. The statute provides for the amendment of a release order. Id. § 3142(c). See also id. § 3148(b) (revocation of release on finding probable cause to believe that condition of release has been violated). Congress contemplated that a court would conduct hearings in these situations and not only on the defendant's first appearance. S. Comm. on the Judiciary, The Bail Reform Act of 1983, S. Rep. No. 147, 98th Cong., 1st Sess. 43 (1983) [hereinafter cited as Senate Bail Reform Report]; Senate Crime Control Report, supra, at 16. Thus, a hearing held two weeks after the initial appearance in front of the court on the superseding indictment is not beyond the scheme established by the statute
and does not preclude the application of the pretrial detention provisions to a person already in custody or released on bail at the time the Act became effective.
The situation in this case is within the framework established by the new Act. The continuance of the bail may be considered as a release order,
because it establishes a condition of release permitted under the Act. 18 U.S.C. § 3142(c)(2)(K). Thus, the hearing was conducted to amend the release order.
The authorization to amend the release orders and to conduct hearings is "based on the possibility that a changed situation or new information may warrant altered release conditions." Senate Crime Control Report, supra, at 16.
The new information that the court is considering now as compared to when the initial bail was set and when the defendant was arraigned on the superceding indictment relates to the new factors contained in the new Act. The Act permits a court to consider factors that were not to be considered under the old bail statute, specifically the suspect's dangerousness. Senate Bail Reform Report, supra, at 21-22. The "eyes of the court" were opened to these "new" facts when it became aware of the new statute.
Thus, the contention that a hearing cannot be held except on a ...