The opinion of the court was delivered by: MCLAUGHLIN
McLAUGHLIN, District Judge.
Defendant is charged in a three-count indictment with conspiracy to transmit the Soviet Union information relating to the national defense, 18 U.S.C. § 794, aiding and abetting Soviet agents in an attempt to receive classified information, 50 U.S.C. § 783(c); 18 U.S.C. § 2, and acting as an agent of the Soviet Union without notifying the Secretary of State. 18 U.S.C. § 1951. For purposes of the issue now before the Court, the first count charges a capital offense, notwithstanding the government's disclaimer of any intention to seek the death penalty. See United States v. Kostadinov, 721 F.2d 411, 412 (2d Cir. 1983).
Defendant has moved for the third time for an Order releasing her on bail pending trial.
The two previous applications were denied on December 28, 1984 and March 5, 1985. Because of the sequence of events in this case, and the timing and effect of the Bail Reform Act of 1984 (the "Act"), 18 U.S.C. § 3141 et seq., a somewhat detailed chronology is required.
Defendant was arrested on October 1, 1984 at John F. Kennedy Airport in this district. She was arraigned on a complaint before Magistrate Caden on October 2, 1984, charged with conspiracy to commit espionage, the crime now charged in Count One of the Indictment. He remanded defendant after finding, in accordance with United States v. Kostadinov, 572 F. Supp. 1547 (S.D.N.Y.), aff'd, 721 F.2d 411 (2d Cir. 1983), that defendant posed a risk of flight. Defendant was not prepared at that time to make a bail application.
Defendant was indicted on October 10, 1984 for the offense charged in the complaint. On October 12, 1984, prior to defendant's arraignment on the Indictment, the Act went into effect. At defendant's arraignment before Magistrate Chrein on October 18, 1984, the Magistrate, with defendant's consent, referred the question of bail to this Court. The government took no position and, most significantly, did not seek a detention hearing as provided for in the Act. 18 U.S.C. § 3142(f).
The bail question lay dormant for several months, during which defendant was arraigned, without any discussion of bail, on the first of two superseding indictments. Finally, on December 28, 1984, defendant made her first application to this Court for bail, premising her argument squarely on the Act. Transcript of Dec. 28, 1984, at 6-15. In opposition, the government for the first time, requested a detention hearing in accordance with the Act.
After the hearing counsel's arguments, the Court weighed the factors enumerated in § 3142(g) of the Act. These include the nature and circumstances of the offense, the weight of the government's evidence, and defendant's history, character, family ties, and length of residence in the community. Also considered was defendant's claim that the German Democratic Republic, and its Acting Ambassador to the United States, would guarantee defendant's presence in Court when necessary prior to trial. Although not suggesting any lack of bona fide on the part of the Acting Ambassador, the Court found "by clear and convincing evidence that no condition or combination of conditions set forth in [the Act] would reasonably assure the appearance of the defendant at this point." Transcript of Dec. 28, 1984 at 36.
Several months later, on March 1, 1985, defendant was arraigned on a second superseding indictment, and made her second bail application to this Court. At this juncture, defendant for the first time suggested that, given the dates of the offenses charged (pre-Act), and the effective date of the Act, the old bail statutes should be applied. The Court adhered to its previous ruling and concluded that it was immaterial to the decision which bail statute governed: "Comparison of the new statute, 18 U.S.C. §§ 3146(b), 3148 (repealed October 12, 1984), demonstrates that the factors to be considered in ordering release or detention are the same." Memorandum and Order of Mar. 5, 1985 at 2 n.1.
Finally, on April 15, 1985, defendant made this, her third, bail application. Taking an understandably pragmatic approach to the problem, defendant has renewed her earlier claim that the Act applies, and seeks solace from the Second Circuit's recent decision in United States v. Payden, 759 F.2d 202, (2d Cir. 1985).
Payden presented the Second Circuit with facts similar to those now before the Court. On the date the Act became effective, October 12, 1984, Payden was incarcerated on narcotics charges in lieu of $250,000 bail. Five days later Payden was arraigned on a superseding indictment; the government did not seek a detention hearing at that time. On October 31, 1984, the government first moved for preventive detention under the Act.
Section 3142(f) of the Act governs when a detention hearing is to be held: "The 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." 18 U.S.C. § 3142(f). The Payden Court held that by not seeking a detention hearing at the October 17, 1984 arraignment, defendant's first post-Act appearance before a judicial officer, the government had ...