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February 1, 1985

UNITED STATES OF AMERICA, Plaintiff, against ROGER RESEK, Defendant

The opinion of the court was delivered by: KEENAN


JOHN F. KEENAN, United States District Judge

 This motion involves the newly enacted Bail Reform Act of 1984, part of the Comprehensive Crime Control Act, 18 U.S.C. §§ 3141-3151 ("Act"), which was signed into law on October 12, 1984. The government seeks a detention order, pursuant to 18 U.S.C. § 3141(e) of the new Act. In order to issue a detention order, the Court must hold a detention hearing in accordance with § 3142(f). The issue in this case is whether the government can obtain a detention hearing long after the defendant's first appearance before a judicial officer and without representing to the Court that there exists dramatically new information or changed circumstances bearing on defendant's likelihood of flight.

 Oral argument on this motion was held January 29 and 30, 1985. There was no briefing of the issue, though short affidavits were filed by both parties.


 Defendant was arrested, along with four co-defendants, on October 25, 1984. He was arraigned the following day before Magistrate Washington who set bail at $100,000 personal recognizance bond backed by $10,000 cash or surety. On the government's motion, Magistrate Gershon increased defendant's bail to $1 million backed by $100,000 cash or surety. Later that day, October 30, 1984, Judge Ward affirmed Magistrate Gershon's determination. The bail condition was later modified, without objection by the government, to allow defendant to post property for bail purposes.

 On November 5, 1984, defendant was indicted on two counts. Count one alleges a conspiracy, under 18 U.S.C. § 371, to commit a theft from a bank, 18 U.S.C. § 2113(b), and interstate transportation of stolen money and securities, 18 U.S.C. § 2314. Count two alleges a violation of 18 U.S.C. § 2113(b), which prohibits various forms of bank theft. These counts carry maximum penalties of five and ten years incarceration, respectively. The acts forming the basis of the indictment allegedly occurred between October 18 and October 25, 1984. The government alleges that defendant negotiated a check for $50,000, payable to Chase Manhattan Bank, which had been received as proceeds of a counterfeit check.


 Apparently to the government's surprise, the defendant is now prepared to meet the terms of his bail. The government has stated to the Court that it will not request a Nebbia hearing.

 Nonetheless, the government seeks an order, pursuant to 18 U.S.C. § 3142(e) of the new Act, detaining defendant prior to the trial without the opportunity for release on bail. Subsection (e) states that such an order may be issued only after the Court holds a detention hearing, described in subsection (f) of § 3142, to determine whether any condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of other persons in the community.

 Section 3142(f) detention hearings fall into two basic categories. Section 3142(f) (1) provides for hearings, upon motion of the government, under four precisely defined circumstances: (1) a crime of violence; (2) an offense for which the maximum sentence is life imprisonment; (3) a drug-related offense for which a term of ten years or more imprisonment is prescribed; or (4) any felony committed after the defendant had been convicted of two or more of the offenses described above, whether those offenses were under state or federal law. In this case, the government's indictment of defendant fails to allege an offense justifying a detention hearing under § 3142(f)(1).

 Under § 3142(f)(2), a detention hearing is authorized, upon motion of the government or the court, in two situations: (1) where there is a serious risk th defendant will flee, or *fn1" (2) a serious risk that the defendant will obstruct justice, or threaten, injure, or intimidate, a prospective witness or juror. The government bases its request for detention on the likelihood defendant will flee. (Affidavit of Baruch Weiss, Assistant United States Attorney, P4 (hereinafter "Weiss Aff.")).

 The critical part of subsection (f), for purposes of this motion, provides: "The hearing shall be held immediately upon the person's first appearance before the judicial officer..." The requirement that the hearing be held at the defendant's first appearance before a judicial officer is grounded on due process considerations. Comprehensive Crime Control Report, supra, at 21-22. In this regard, the Senate Judiciary Committee stated that "the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial." Id. at 20.

 Defendant first appeared before a judicial officer on October 25, 1984. Several appearances and 94 days later, on January 29, the government formally sought a detention hearing. Thus, the government's request fails to come within those ...

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