Appeal from an order the District of Connecticut, T. Emmet Clarie, J., ordering defendant detained without bail pending trial on federal charges arising out of an armed robbery.
Before LUMBARD, MANSFIELD, and MESKILL, Circuit Judges.
Luz Marie Berrios-Berrios appeals from an order of the District of Connecticut, T. Emmet Clarie, J., mandating Berrios's detention pending trial for federal criminal offenses arising out of a 1983 armed robbery. Judge Clarie, pursuant to a provision of the Bail Reform Act of 1984, denied Berrios's request that he set bail, on the ground that she posed a serious risk of flight. See 18 U.S.C. § 3142(e). We have jurisdiction over the appeal pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C. § 1291. Berrios argues that the district court's ultimate decision denying bail is subject to de novo appellate review and was improper; that the court clearly erred in its factual finding that Berrios might flee; that the pertinent provisions of the Bail Reform Act are unconstitutional on their face and as applied; and that the district court erred in admitting the results of electronic surveillance at Berrios's bail appeal hearing. We affirm in part and remand for further proceedings.
On August 28, 1985, a Hartford Grand Jury returned an eight-count indictment against Berrios and 16 other persons, charging offenses stemming from the September 12, 1983, robbery of the Wells Fargo depot in West Hartford, Connecticut. A New Haven Grand Jury filed a superseding indictment on March 21, 1986, which charged 16 of the original 17 defendants with the same, and additional, violations of federal criminal laws; the superseding indictment also added three new defendants. The first indictment charged Berrios with robbery, conspiracy to commit robbery, and transportation of stolen property. See 18 U.S.C. §§ 1951, 1952. The superseding indictment added another count and charge against Berrios: conspiracy to commit interstate transportation of stolen money (18 U.S.C. §§ 2314, 2), to commit armed robbery of a federally insured bank (18 U.S.C. § 2113(a)), and to commit a theft from an interstate shipment (18 U.S.C. § 659), all in violation of 18 U.S.C. § 371.
On April 1, 1986, Judge Clarie continued the determination, which he had previously ordered, of 9 of the defendants charged in the superseding indictment, including Berrios. The judge ordered that all of these defendants be detained without bond pending trial, based on their dangerousness, their risk of flight, or a combination of the two. See 18 U.S.C. § 3142(e). The appeals of the eight other detained defendants were consolidated in United States v. Melendez-Carrion, Nos. 85-1431, et seq. (2d Cir. May 2, 1986.)*fn1 Of the remaining ten defendants, five are currently out on bond, two are expected to post bond soon, and three have yet to be apprehended.
Immediately after the grand jury returned the first Wells Fargo indictment the Mexican Federal Judicial Police arrested Berrios on August 30, 1985, in Cuernavaca, Mexico, where she was living with her two children. Berrios and her children were detained in a Mexican jail for three days and, after interrogation, Berrios was brought to the Mexican customs officials, before whom she signed a waiver of extradition. On September 3, the Mexican authorities placed Berrios aboard a Pan Am flight from Mexico City to Miami, where the FBI arrested her.
Berrios was arraigned before United States Magistrate Peter L. Nimkoff of the Southern District of Florida, who subsequently presided over a detention hearing on September 11, 1985. Magistrate Nimkoff set bond at $75,000 unsecured personal surety and $75,000 corporate surety, and gave Berrios nine days to post bond in Florida before she would have to be removed to the District of Connecticut. Berrios was unable to arrange for the corporate surety, and on September 23 the authorities removed her to Connecticut where, on September 24 and again on October 1, she appeared before Magistrate F. Owen Eagan. On October 1, after Berrios entered a plea of not guilty to the original indictment, Magistrate Eagan adopted the conditions of release set by Magistrate Nimkoff; on that same day, the government appealed Nimkoff's order to the District of Connecticut. See 18 U.S.C. § 3145(a).
Judge Clarie held a hearing on October 10, and on October 29 he issued a ruling rescinding and reversing Magistrate Nimkoff's Order of Conditions of Release. Judge Clarie found that Berrios posed was a risk of flight, and thus denied bail, pursuant to his authority under the Bail Reform Act. Berrios filed a motion to reconsider and clarify this ruling on November 6, 1985, and a hearing was set for January 9, 1986. Following the hearing and submission of papers, Judge Clarie denied the motion on February 3. Berrios appeals from the rulings of October 29 and November 14, 1985, and February 3, 1986.
Berrios is 36 years old, the mother of two children, and has no previous criminal record. She was born in Naranjito, Puerto Rico, and until recent residence in Mexico had lived her entire life in Puerto Rico. Berrios is married to Juan Segarra Palmer, who is a co-indictee also detained without bail pending trial. See Melendez-Carrion, supra. FBI Special Agent Patrick Daly testified at the Florida detention hearing that Berrios was a member of "Los Macheteros" (The Machete Wielders"), a Puerto Rican organization dedicated to ousting the United States government from Puerto Rico. Los Macheteros has taken credit for a number of violent actions between 1978 and 1983, including murders of American servicemen stationed in Puerto Rico, bombings of United States property in Puerto Rico, and robberies including the 1983 Connecticut Wells Fargo robbery. Special Agent Daly testified that Berrios has been a paid, full-time member of Los Macheteros for eight years, and had gone by the code name "Mima," and that Berrios's husband, Segarra Palmer, has belonged to the organization for at least nine years.
Although Agent Daly conceded that no evidence indicated that Berrios had been present during any of Los Macheteros's violent actions, or that she had been in Hartford at the time of the Wells Fargo robbery, he testified that telephone records showed that there had been pre-robbery conversations between Berrios's home and the Hartford residence of Victor Gerena, a suspected robbery participant. Agent Daly stated that the only evidence directly linking Berrios to the Wells Fargo robbery was an intercepted phone conversation in which Berrios helped to plan a January 6, 1985, giveaway of toys, canned hams, and $20 bills in an impoverished Hartford neighborhood; during the conversation Berrios referred to the robbery by its code name "Aguila Blanca." The government asserted, but offered no proof, that the giveaway was funded with loot from the Wells Fargo robbery.
Agent Daly also testified that in June, 1985, a member of Los Macheteros held a press conference in Puerto Rico to announce that, according to his "sources," the authorities were about to arrest over 100 people in Puerto Rico linked to the independence movement. After the press conference, Agent Daly--who had been keeping Berrios under surveillance--was unable to locate her, her husband, or her children, in Puerto Rico. It turned out that Berrios had moved to Mexico, leaving behind her house and her car. The government argued that the impetus behind Berrios's sudden move to Mexico was her fear of arrest for terrorist activities, and that this demonstrated that she was likely to flee if Magistrate Nimkoff allowed her to remain free on bail.
In setting bail, the Magistrate observed: "There is at the moment nothing before me suggesting furtiveness or flight." He noted that Berrios had been living under her own name in Mexico, and had openly obtained an apartment and bank account in Cuernavaca. He also down-played Berrios's links to Segarra Palmer and the rest of Los Macheteros, stating "I'm not sure that I should feel that every terrorist's wife if obliged to be in pre-trial detention."
At the hearing upon appeal to the district court (the Connecticut Magistrate having adopted Magistrate Nimkoff's conditions of release), the government supplemented the evidence it had presented in Florida with the testimony of Special Agent Jose Rodriguez, who had monitored many of Berrios's telephone calls in Puerto Rico. These conversations--considered over defense counsel's objection--provided further evidence that Berrios was a member of Los Macheteros, that the organization paid her a salary, and that she knew the details of several crimes and assisted in decisions as to how the stolen money would be spent. Agent Rodriguez also testified that he had intercepted a conversation among four ...