Appeal by the government pursuant to 18 U.S.C. § 3145(c) and 3731 from an order of the United States District Court for the Eastern District of New York, Weinstein, Chief Judge, releasing appellee on bail with specified conditions.
Pierce and Pratt, Circuit Judges, and Metzner, District Judge.*fn*
This is an appeal from an order entered in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, directing the release of appellee Anthony Colombo pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. (Act). Despite a finding that appellee Colombo presents a danger to the community, see infra pp. 7-8, the district court concluded that bail and release conditions could assure the public's safety. See 18 U.S.C. § 3142(e). "A substantial additional basis" for the decision to release Colombo was the projected length of his pretrial incarceration which the district court determined must be considered in order for the detention provisions of the Act to withstand constitutional attack. We hold that the district court erred in its decision to release Colombo and, at this stage of the proceedings, the possible length of Colombo's pretrial detention was not a proper basis for release. Accordingly, we reverse the order of the district court.
On April 22, 1985, appellee Colombo and twenty-four other persons were named in a seventy-one count indictment. The indictment charges that from 1975 until April, 1985, Colombo operated a criminal enterprise known as the "Anthony Colombo crew" which committed state and federal crimes, including murder, robbery, narcotics violations, arson, extortion, threats, assaults, illegal gambling, bribery, interstate theft and transportation of stolen goods, extortion and mail/wire fraud. At a detention hearing held before Magistrate Chrein on April 29, 1985, the government, through a proffer, stated its intention to present evidence at trial to support the allegation that Colombo participated in and directed the "Colombo crew." The proffer primarily consisted of the anticipated testimony of one Anthony Ferrara that he was recruited to join the "crew" in late 1980. App. at 72. The government asserts that Ferrara would testify at trial that Colombo stated that he was the head of the "crew" and approved all criminal activity by its members; that he received a share of all the proceeds of the "crew's" criminal activities and in return provided for their legal representation, id. at 72-73; that Ferrara attended organization meetings at which Colombo directed "crew" members to rob persons believed to be large-scale drug dealers and to distribute narcotics; that in at least two of the robberies the victims were assaulted; that Colombo approved the abduction of a supposed drug dealer, the assault of the manager of a car dealership, the extortion of a restaurant owner, and the attempted murder of a government informant; and that he was part of a conspiracy to rob passengers on an airline flight to Atlantic City. The government also proffered corroborative testimony by the alleged victims of the assault, extortion and attempted murder. Further, the proffered testimony of Ferrara concerning two alleged robbery conspiracies was corroborated by tapes of telephone calls in which Colombo allegedly participated. Id. at 77-93, 99, 102.
Based on this evidence, Magistrate Chrein found that the government proved by clear and convincing evidence that Colombo presents a "threat to the safety of the community." Id. at 150; see id. at 157. Consequently, the magistrate ordered Colombo's detention pursuant to 18 U.S.C. § 3142(e), but he invited an application for reconsideration of his order if Colombo remained detained due to the detention order for more than ninety days from the date of his arrest. On August 7, 1985, the trial had not yet commenced and the parties again appeared before Magistrate Chrein who confined his review of the detention order 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." App. at 174. Following the hearing, the magistrate ordered Colombo's release on the condition that he post bail in the amount of $500,000 to be secured by a deed to a home and sureties. He stated 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 not served by this defendant's incarceration. That is my only basis for changing my ruling." Id. at 220-21. The magistrate reasoned that Colombo's orchestration of the "crew's" criminal activities would not be hindered by imprisonment as he could as easily direct his alleged underlings in prison as at liberty. Id. at 216. The magistrate stayed the release order pending appeal by the government to the district court pursuant to 18 U.S.C. § 3145(a)(1).
Chief Judge Weinstein made several determinations on appeal. He ruled that the magistrate had jurisdiction to reconsider his own April 29th detention order. He determined that in reviewing a detention order, a district court may rely on the record developed before the magistrate in conducting its own independent review of the evidence, and he concluded that a second evidentiary hearing was not required although a court might, in its discretion, take additional evidence.*fn1 These rulings are not challenged on appeal and, in any event, we note that the parties stipulated that the record in the proceedings below was the evidence to be considered by the district court. App. at 232-33. The district court upheld the magistrate's release of Colombo, but based its decision on different grounds and ordered additional bail conditions.
The district court noted that the magistrate had found that the charges contained in the indictment were supported by probable cause; and that the charges relating to narcotics and to crimes of violence triggered the presumption that no condition or combination of conditions would assure the safety of the community. See 18 U.S.C. § 3142(e). Noting that the presumption shifts only a limited burden of production onto a defendant and not a burden of persuasion, see United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985) (citing United States v. Jessup, 757 F.2d 378, 381-84 (1st Cir. 1985)), the district court determined that Colombo rebutted the presumption by coming forward with evidence that he was ill, had never been convicted of a crime, and lived far from the scene of his alleged crimes. The court upheld the magistrate's finding that the government sustained its burden of persuasion as to danger to the community, but nevertheless concurred with the magistrate's conclusion that the government had failed to establish by clear and convincing evidence that detention was necessary. Judge Weinstein rejected the magistrate's reasoning that since Colombo could conduct his criminal activity as easily from within jail as out, he should be released. He noted that:
The statute does not require that the defendant himself commit acts of physical violence as a condition precedent to a detention order. Nor does the statute suggest that if a defendant has the ability to endanger the community vicariously from a prison cell through orders to his underlings detention is inappropriate. Leaders of criminal gangs who direct the commission of violent crimes by others can be detained prior to trial under the circumstances prescribed in the Act. A warden is in a position to inhibit criminal activities in jail by criminal overlords.
Chief Judge Weinstein concluded, however, that while the monetary conditions set by the magistrate assured only Colombo's presence at trial, id. at 308, other conditions of release could assure the safety of the community. Furthermore, a "substantial additional basis for [the district court's] decision to confirm the Magistrate's decision to release the defendant is that the necessary delay in bringing the case to trial will require him to be incarcerated from 13 months to two years before a trial can be completed." Id. at 317. According to the district court's reasoning, the extended period of incarceration likely to eventuate in this complex multi-defendant case must be considered in order for preventive detention to withstand constitutional attack.
We hold that the release conditions set by the district court are inadequate to protect the community, and, in addition, that the release of Colombo predicated on anticipated length of ...