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UNITED STATES v. GOTAY

April 30, 1985

United States of America,
v.
Pedro Gotay and Augustus Campbell, Defendants



The opinion of the court was delivered by: HAIGHT

HAIGHT, D.J.

MEMORANDUM OPINION AND ORDER

By superseding indictment, defendant Campbell has been charged with co-defendant Gotay with conspiring to violate 18 U.S.C. §§ 922(b) (2) and 922(a) (1). Superseding Indictment, Count One. In addition, Campbell has been charged with substantive violations of §§ 922(b)(2), 922(m), and 924(a). Id., Counts Four, Five and Six. These sections relate to unlawful acts involving firearms. If convicted, defendant faces terms totalling five years' imprisonment on each of the four counts in which he is named, together with fines totalling $25,000.

 Following his apprehension, Campbell was brought before Magistrate Buchwald. The Government applied for an order of pretrial detention pursuant to 18 U.S.C. § 3142(e). The Magistrate denied that application, and required as bail a $200,000 unsecured bond, to be co-signed by four "financially responsible persons." Campbell was detained because he could not satisfy those terms and conditions. The case was assigned to the undersigned for trial; and thereafter Campbell, through his counsel, applied to the Court for amendment of the conditions of his release. 18 U.S.C. § 3145(a)(2).

 At first I ruled that I would reduce the number of co-signers from four to two, leaving the face amount of the bond at $200,000, if ten percent cash security, or $20,000, was furnished. Defendant states that those conditions are equally impossible for him to meet. Instead, he asks that there be no requirement of cash security; and he offers two co-signers of modes means--clearly not "financial responsible" if that phrase is taken to mean an ability to pay the amount specified in the bond if Campbell fails to appear at his trial. Campbell argues that, given his limited economic circumstances and those of his acquaintances, this is all that the law entitles the trial court to ask of him. He places particular reliance upon the penultimate sentence of 18 U.S.C. § 3142(c). The argument raises interesting questions of construction of the recently enacted Bail Reform Act of 1984.

 The penultimate sentence of subsection 3142(c) reads:

 
"The judicial officer may not impose a financial condition that results in the pretrial detention of the person."

 Campbell argues that requirements that a bond be partially secured, or co-signed by persons of demonstrable economic responsibility, both operate to "impose a financial condition"; and where, as here (according to defendant's averments), neither he nor his acquaintances can satisfy that "financial condition," the failure in practical effect "results in the pretrial detention" of Campbell. This is said to violate the quoted provision from subsection 3142(c).

 That argument, carried to its logical extreme, would require the release of any defendant sufficiently indigent, and whose family and friends are sufficiently indigent, to prevent them from posting any financial security to assure the defendant's appearance at trial. In short, the more unable the defendant may be to give economic assurances of his appearance, the more he is entitled to be released on bail.

 This seems a doubtful proposition, although I would of course accept it if it reflected the clear intent of Congress in passing the Bail Reform Act. But I decline to so construe the statute.

 The sentence upon which Campbell relies cannot be taken entirely out of context. The statutory scheme must be considered. Subsection 3142(b) requires the judicial officer to release a defendant on his own recognizance, or upon execution of an unsecured appearance bond, "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community."

 If release of the defendant on personal recognizance or an unsecured appearance bond does not give sufficient assurance of his appearance or of the community's safety, the judicial officer must then go on to section 3142(c), and consider whether the defendant's release on stated conditions would furnish the requisite assurances. The judicial officer, proceeding under section 3142(c), must impose "the least restricted further condition, or combination of conditions" that the judicial officer determines will reasonably assure the defendant's appearance and the community's safety. 18 U.S.C. § 3142(c)(2). One of the specific options given by the statute, and the option which Magistrate Buchwald chose in the case at bar, requires the defendant to:

 
". . . execute a bail bond with solvent sureties in such amount as is reasonably necessary to assure the appearance of the person as required. . . ."

 I construe an appearance bond with "financially responsible" co-signers as failing within the ...


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