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August 22, 1985


The opinion of the court was delivered by: WEINSTEIN



 Defendant Anthony Colombo was indicted along with twenty-four codefendants in an almost seventy page indictment charging sixteen crimes. He moves to affirm a magistrate's decision to release him on bail pending trial. Important statutory and constitutional issues of apparent first instance are raised by this application.

 The government originally sought detention on grounds of guarantee of appearance and protection against further crimes. Its reliance is now wholly on its perceived need to protect the public pending trial.

 At the conclusion of a detention hearing before the Magistrate on April 29, 1985, he held that pretrial incarceration was required. References that follow are to the transcript of the hearing before the Magistrate on April 29, 1985:

I am convinced . . . . I'm ordering detention . . . . First of all, there is a presumption which arises out of [the] narcotics elements of the conspiracy that the defendant represents a threat to the safety of the community. True, the existence of the presumption does not divest the Government of its requirement to prove by clear and convincing evidence the facts that give rise to the risk to the public. I feel that the Government notwithstanding its inordinate reliance on Mr. Ferraro [chief witness against defendant] has achieved this test. Mr. Ferraro's narrative is corroborated in many details.
I am satisfied that Mr. Ferraro's testimony might very well be believed by a jury. And [if] it were to be believed, there is an over whelming array of testimony that satisfies me that the defendant presents a threat to the safety of the public, or consistent pattern of orchestrating a series of violent criminal operations.
* * *
. . . I'm reasonably convinced, if the defendant were in custody, his visitors would be limited, and he would not have the freedom of operation to threaten the public in a federal detention facility that he would have if he were at large.

 Tr. pp. 81-83.

 The Magistrate then expressed concern that the trial of the defendant might not commence within a reasonable period which he deemed to be 90 days. He invited an application for reconsideration should the defendant still be in custody solely because of the detention order 90 days from the day of his arrest (Tr. p. 94).

 On July 19, 1985, more than 90 days following the defendant's arrest, the trial had not commenced. The defendant returned to the Magistrate's for reconsideration of the order of detention. The Government challenged the Magistrate's jurisdiction to reconsider his order. The Magistrate's response to that challenge was that he would hear the application to reconsider if Judge Bramwell, to whom the case was assigned for all purposes, approved. Tr. of proceedings before Judge Bramwell on July 19, 1985 at p.4. Judge Bramwell referred the parties back to the Magistrate

for him to hear whatever he wishes to hear concerning the bail application and to make whatever decision he feels is consistent in the best interests of all concerned. I refer you back to him. You could go back to him and if he wishes to hear further argument I'll permit; and I authorize him to hear whatever Mr. Cutler [defense counsel] has to say as to Mr. Colombo and make . . . findings . . . .

 Id. at 7-8.

 The Magistrate held a hearing on August 7, 1985. At the outset, he made it clear that if the application for reconsideration was predicated upon the Speedy Trial Act, 18 U.S.C. ยง 3161 et seq., it would be denied. (References that follow are to the transcript of proceedings before the Magistrate on August 7, 1985) (Tr. p.3). The Magistrate stated that his reconsideration would be confined to

whether or not new evidence that was unavailable for my consideration at the earlier detention hearing attenuates the findings that I made that there is clear and convincing evidence that this defendant poses a threat to the community. That's all I need concern myself with.

 Tr. p. 8.

 The Magistrate modified his original order for two reasons: the public is not being protected by the defendant's incarceration because he could just as effectively direct the commission of acts of violence from his prison cell (Tr. pp. 39, 50), and the absence of direct evidence that the defendant "physically hit anybody, struck anybody, raped anybody, [or had] been in anybody else's home in connection with any robbery" (Tr. pp. 46, 47). The Magistrate then succinctly stated:

The only difference between my findings in April and my findings this afternoon [is] that inasmuch as this defendant did not himself participate in any violent act and that inasmuch as the defendant['s] [ability] to orchestrate violent actions is only moderately attenuated by his incarceration, that the purpose of the act, the protection of the public is ...

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