Appeal by Donald Payden from an order of the United States District Court for the Southern District of New York (Edelstein, J.) that, upon remand, directed appellant to be detained before trial under authority of the Bail Reform Act of 1966. Affirmed.
Before: KEARSE and CARDAMONE, Circuit Judges and WYATT, District Judge*fn*
CARDAMONE, Circuit Judge:
The question posed on this expedited appeal is whether appellant may properly be detained before trial under the Bail Reform Act of 1966. The district court revoked appellant's bail because of its finding that he attempted to contract for the murder of a key government witness and her daughter. We have recently held that the Bail Reform Act of 1984 provides statutory authority for detention before trial if a witness is threatened. United States v. Leon, 766 F.2d 77, slip op. at 4826 (2d Cir. 1985). We now conclude that the court had the inherent power under the 1966 Act as well to impose pretrial detention under the extraordinary circumstances of this case, though the road leading there diverges from the one recently travelled.
Donald Payden was arrested on August 2, 1984 and charged with conspiracy to violate the federal narcotics laws, 21 U.S.C. § 846 (1982), and distribution and possession with intent to distribute heroin, 21 U.S.C. § 841. Following indictment and arraignment, bail was fixed in the amount of $250,000 pursuant to the Bail Reform act of 1966, 18 U.S.C. § 3141-3156 (1982), amended by Bail Reform act of 1984, to be codified at 18 U.S.C. §§ 3141-3156 (effective Oct. 12, 1984). Payden was unable to make bail and was remanded to custody. On October 10, 1984 a superseding indictment that added a count to the existing indictment charged Payden with organizing a continuing criminal enterprise in violation of 21 U.S.C. § 848, for which he was arraigned on October 17, 1984. The government then moved on October 31 for a pretrial detention order pursuant to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141-3142. After holding a hearing on November 16, the district court issued a pretrial detention order on December 3rd. See United States v. Payden, 598 F. Supp. 1388 (S.D.N.Y. 1984), rev'd, 759 F.2d 202 (2d Cir. 1985) (Payden I). Payden appealed the pretrial detention order.
On February 25, 1985 the government filed a second superseding indictment that, in addition to the charges contained in the first superseding indictment, included a detailed list of items sought to be forfeited. i.e., cash, a 25% interest in a company as represented by shares of its stock, an automobile, and jewelry. Payden was arraigned on the second superseding indictment on February 26, 1985 at a time when Payden I was pending before this Court and the district court's December 3 pretrial detention order was still in effect. In March 1985 we reversed the lower court's pretrial detention order on the ground that the 1984 Act mandated its application to Payden at his first appearance before the district court on the first superseding indictment filed on October 17, 1984, rather than two weeks later on October 31 when the government first moved for detention. 759 F.2d at 204. We thereupon remanded the case to the district court "for reconsideration in accordance with the bail laws under which the court was effectively operating at the time of Payden's arraignment." Id. at 205.
On April 2, 1985 the government again moved for a pretrial detention order or in the alternative for an increase in bail from $250,000 to $1,000,000 on the basis of new information it had obtained. The government asserted that it had learned that Payden had approached James Turner, a fellow inmate at the Metropolitan Correctional Center (MCC), and asked him to murder a witness that Payden believed would appear and testify against him at his pending trial. On April 22 Payden moved for an order releasing him on the $250,000 bail that the magistrate had set on August 3, 1984. A hearing on both the government's and Payden's motions was held on May 9, 10, and 13 before the United States District Court for the Southern District of New York (Edelstein, J.). James Turner testified at length at that hearing. Payden did not introduce any evidence on his own behalf. On June 7, 1985 the district court entered an order detaining Payden before trial. It is from that order that Payden appeals. We affirm.
Turner and Payden were both inmates at the MCC and talked with one another between August 1984 and January 1985. Turner has an extensive criminal record going back to 1965 when he killed a man with a butcher knife in a dispute over a woman. From 1978 through 1985 he committed a series of bank robberies, during one of which he shot an unarmed guard. At the time of Payden's hearing, Turner was awaiting sentencing on a bank robbery conviction. He testified that he had feigned insanity at trial and at a pretrial hearing, but had been found competent to stand trial. Additionally, psychiatric examinations had described Turner as, inter alia, a paranoid and antisocial personality. Turner testified that he told Payden about his criminal history. Payden then confided in Turner that he wanted to kill a government witness whom he identified as "diane Turner." By then, according to Turner's testimony, he and Payden had become "real close" and Payden wanted to know if Diane Turner was related to him. When Turner said she was not, Payden then said that Diane Turner was ready to testify against him and he wanted her killed. Payden identified the witness as a 39-year-old black woman who had just been convicted for drug offenses along with Payden's brother. Payden asked Turner to kill this witness on a number of occasions and offered to "pay [Turner] good" for his services. Sometime after their initial conversations, Payden was visited by a girlfriend who brought him the Indianapolis, Indiana address of the target witness. Payden knew that Indianapolis was James Turner's hometown. When Payden gave Turner the government witness's Indianapolis address, he told Turner that he also wanted the witness's daughter, who lives in New York City, killed.
Payden gave Turner an address and a telephone number so that he could make initial arrangements for the murders when he was released from the MCC. From August 1984 until his trial on the bank robbery charges in March 1985, Turner was convinced that he would be released and from the time Payden first approached Turner, both believed that Turner would not be in prison very long. Turner's optimism about his release was based on his belief that he had successfully demonstrated his mental incompetency to stand trial.
The information that Payden gave Turner (other than the name) plainly identified Claudine Jones as the person that Payden wanted killed. Payden described his target as a woman who was testifying against him, who came from Indianapolis and had a daughter, and who with Payden's "brother" was serving a 20-year sentence for narcotics violations, Jerry McGee, who calls himself Payden's half-brother, and Claudine Jones are both serving 20-year sentences for narcotics violations. Turner relayed all of the above information about Payden to the Superintendent of the MCC in January 1985, while Turner's bank robbery trial was pending.
The Bail Reform Act of 1984 authorized the district court to detain a defendant before trial if there is " serious risk" that the defendant will "injure, or intimidate. . .a prospective witness." 18 U.S.C. § 3142(f)(2) (B). See Leon, slip op. at 4826. Because of our remand in Payden I "for reconsideration in accordance with the bail laws under which the court was effectively operating at the time of Payden's arraignment," 759 F.2d at 205, the district court did not apply the Bail Reform Act of 1984, but applied the law ...