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UNITED STATES v. PAYDEN

June 7, 1985

UNITED STATES OF AMERICA against DONALD PAYDEN, Defendant


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge

OPINION AND ORDER

Defendant Donald Payden ("Payden") has moved, pursuant to Fed. R. Crim. P. 46(a), for an order releasing him on $250,000 bail. The government has cross-moved for an order of detention or, in the alternative, for an increase in Payden's bail to $1 million. Because the court finds that Payden has attempted to hire a fellow inmate for the purpose of murdering a key government witness in this case and her daughter, Payden's bail application is denied and the government's motion for an order of detention is granted.

 BACKGROUND

 The facts of this case are set forth in this court's opinion of December 3, 1984, United States v. Payden, 598 F. Supp. 1388 (S.D.N.Y. 1984), rev'd, 759 F.2d 202 (2d Cir. 1985), but the court will review the facts pertinent to this motion. Payden was arrested on August 3, 1984 and brought before a Magistrate who set bail at $250,000.00. Payden was unable to post this amount and was remanded. On August 13, 1984, Payden was named in a two count indictment charging him 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. Payden was arraigned on August 23, 1984 and bail was continued. On October 10, 1984, the government filed a superseding indictment, which added a count under 21 U.S.C. § 848, charging Payden with organizing and supervising a continuing criminal enterprise. Payden was arraigned on the superseding indictment on October 17, 1984. Bail was not discussed. On October 31, 1984, the government moved for an order of detention, pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. After a hearing and based on the record in this case, the court granted the government's motion for pre-trial detention, finding that "no condition or combination of conditions provide sufficient assurance that the defendant will not continue the conduct alleged in the indictment and appear when required." United States v. Payden, 598 F. Supp. 1388, 1399 (S.D.N.Y. 1984).

 On March 26, 1985, the Court of Appeals for the Second Circuit reversed the order of detention, holding that because the detention hearing was not held on October 17, 1984 -- the date of Payden's "first appearance" before the judicial officer after the filing of the first superseding indictment -- the new Bail Reform Act was incorrectly applied to Payden. The court remanded the case "for consideration in accordance with the bail laws under which the court was effectively operating at the time of Payden's arraignment [on the first superseding indictment on October 17, 1984]." *fn1" United States v. Payden, 759 F.2d 202, 205 (2d Cir. 1985).

 On April 22, 1985, Payden moved for an order of release on the $250,000.00 bail set on August 3, 1984. The government cross-moved for an order of detention based on new information. The government alleges that sometime in February of 1985, James Turner, then an inmate at the Metropolitan Correctional Center ("MCC"), informed the superintendent of the MCC that Payden had approached him and asked for his assistance in murdering Claudine J. Jones, a government informant. The court held a hearing on the motions from May 9 through May 13, 1985. James Turner was the only government witness at the hearing. Payden elected not to present any testimony on his own behalf.

 I. APPLICABILITY OF THE BAIL REFORM ACT OF 1984

 The government argues that the Bail Reform Act of 1984 should be applied to Payden. The government contends that under the Bail Reform Act of 1984, the government may seek pre-trial detention of a defendant at a time other than the defendant's "first appearance" before the judicial officer. In support of this contention, the government relies on 21 U.S.C. § 3142(e), which allows a district judge "at any time [to] amend his order to impose additional or different conditions of release," and 21 - U.S.C. § 3148(a), which provides that an order of detention may issue as to any defendant who violates a condition of his release order. The government also refers the court to United States v. Resek, 602 F. Supp. 1126 (S.D.N.Y. 1985), in which Judge Keenan held that the government may seek detention of a defendant after his first appearance, provided the government can demonstrate that there exists "dramatic new information."

 The court finds the government's argument on this point persuasive; however, the mandate issued by the court of appeals in its March 26, 1985 opinion directs the court to apply the law as it existed prior to the enactment of the Bail Reform Act of 1984. The court of appeals held:

 
The new Bail Reform Act was incorrectly applied to defendant Payden. Rather than permit a special exception to the first appearance requirement as a result of the timing of this case, thereby potentially weakening the procedural fabric of the Act, we reverse the decision of the district court and remand for reconsideration in accordance with the bail laws under which the court was effectively operating at the time of Payden's arraignment.

 United States v. Payden, supra, 759 F.2d at 205. Even though the Bail Reform Act of 1984 provided for immediate repeal of the Bail Reform Act of 1966, see United States v. Zannino, 761 F.2d 52, slip op. at 6-12 (lst Cir. 1985) (Bail Reform Act of 1984 applies to defendant released on bail under 1966 Bail Act); United States v. Angiulo, No. 84-1745, slip op. at 4-14 (lst Cir. Feb. 25, 1985) (Bail Reform Act of 1984 applies to defendant incarcertated and seeking release on bail at the time of the passage of the new act), this court is bound by the court of appeals mandate that the old law be applied to Payden.

 Under the law as it existed prior to October 12, 1984, the court has the power to revoke bail and remand the defendant if it finds that the defendant has threatened witnesses. United States v. Graewe, 689 F.2d 54, 56-57 (6th Cir. 1982) (per curiam); United States v. Wind, 527 F.2d 672, 675 (6th Cir. 1975); United States v. Gilbert, 138 U.S. App. D.C. 59, 425 F.2d 490, 491-92 (D.C. Cir. 1969); see Carbo v. United States, 7 L. Ed. 2d 769, 82 S. Ct. 662, 668 (1962) (Douglas, Circuit J.); cf. United States v. Kirk, 534 F.2d 1262, 1280-81 (8th Cir. 1976) (detention during trial), cert. denied, 433 U.S. 906 & 433 U.S. 907, 53 L. Ed. 2d 1091, 97 S. Ct. 2971 (1977); United States v. Cozzetti, 441 F.2d 344, 350-51 (9th Cir. 1971) (same). Although this power was not expressly provided for in the Bail Reform Act of 1966, there is ample case authority for the court's extrastatutory power to revoke a defendant's bail prior to trial in order to insure the orderly and expeditious progress of the trial. *fn2" Fernandez v. United States, 5 L. Ed. 2d 683, 81 S. Ct. 642, 644 (1961) (Harlan, Circuit J.) ("District courts have authority as an incident of their inherent powers . . . to revoke bail."); see United States v. Graewe, supra, 689 F.2d at 57; United States v. Wind, supra, 527 F.2d at 675; cf. Bitter v United States, 389 U.S. 15, 16, 19 L. Ed. 2d 15, 88 S. Ct. 6 (1967) (per curiam) ("A trial judge indisputably has broad powers to ensure the orderly and expeditious progress of a trial. For this purpose, he has the power to revoke bail and to remit the defendant to custody. But this power must be exercised with circumspection. It may be invoked only when and to the extent justified by ...


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