Expedited appeal from an order entered February 19, 1987 in the Southern District of New York, Charles S. Haight, Jr., District Judge, granting an application by a defendant to be released from pretrial detention on certain conditions.
Timbers, Kearse and Pierce, Circuit Judges.
Appellant United States of America ("the government") brings this expedited appeal from an order entered February 19, 1987 in the Southern District of New York, Charles S. Haight, Jr., District Judge, 656 F. Supp. 241, granting an application by appellee Mutulu Shakur ("Shakur") for release from pretrial detention on certain conditions.
Shakur filed the instant application eight months after his arrest and initial detention. The government opposed the application on the ground that, under the Bail Reform Act of 1984 ("the Act"), Pub. L. No. 98-473, § 203(a) et seq., 98 Stat. 1976 (codified at 18 U.S.C. § 3141 et seq. (Supp. III 1985)), Shakur was likely to flee if not detained.
The district court, after an evidentiary hearing, held that the government had failed to sustain its burden of showing that no condition or combination of conditions could be imposed on Shakur which reasonably would assure his presence at trial. The court stayed the effectiveness of its order pending the outcome of an appeal to our Court.
On appeal, the government claims that the district court was clearly erroneous in holding that the government had not proven by a preponderance of the evidence that there were no conditions which reasonably would assure the presence of Shakur at trial.
We hold that the district court erred when it held that conditions could be imposed which reasonably would assure the presence of Shakur at trial. This holding rests on errors of law as well as on clearly erroneous findings of fact.
We summarize only those facts believed necessary to an understanding of the issues raised on appeal.
On March 25, 1982, a magistrate in the Southern District of New York issued a warrant for the arrest of Shakur, Edward Joseph, and Cecil Ferguson on charges arising from the armed robbery of a Brinks armored truck on October 20, 1981 in Nanuet, New York. Joseph and Ferguson were arrested the following day. Their arrests received national press coverage.
Attempts to locate Shakur were unsuccessful. Investigations conducted by the New York Joint Terrorist Task Force of the Federal Bureau of Investigation ("the FBI") indicated that after the Brinks robbery Shakur had not returned to his New York home -- an acupuncture clinic located at West 139th Street in Manhattan. He had been observed on several occasions entering an apartment in Greenwich Village, New York, but could not be located there after issuance of the arrest warrant.
Subsequent information led the FBI to Washington, D.C., where it discovered that Shakur had rented an apartment under the fictitious name of "Donell Jackson". Coordinated efforts between the FBI and local authorities failed to locate Shakur at the apartment. He was last seen in Washington, D.C. in June 1982.
On July 23, 1982, the FBI placed Shakur on its list of "Ten Most Wanted Fugitives". Posters containing his photograph were circulated throughout the nation to federal and state law enforcement agencies, post offices, and the news media.
On November 24, 1982, while Shakur remained at large, he and others were indicted in the Southern District of New York in Indictment SSS 82 Cr. 312 ("the indictment"). The indictment charges Shakur in eight counts. Count One charges that Shakur and others conspired to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. §§ 1961 and 1962(d) (1982 & Supp. III 1985). Count Two charges Shakur with participation in a racketeering enterprise in violation of 18 U.S.C. §§ 2, 1961, and 1962(c) (1982 & Supp. III 1985), in that Shakur participated in the commission of 19 separate predicate acts of racketeering. Those acts included three murders (two of which were murders of law enforcement officers); three armed robberies of armored trucks, and one bank robbery (the robberies together having netted the enterprise nearly $2.5 million); seven attempted armed robberies of armored trucks; and two armed kidnappings. The indictment charges that the kidnappings were committed to effectuate the escape from prison of Black Liberation Army leader Joanne Chesimard, who herself was incarcerated for participating in the shooting death of a New Jersey State Trooper. The other counts of the indictment naming Shakur charge him with participation in two bank robberies in violation of 18 U.S.C. §§ 2 and 2113(a) (1982), two armed bank robberies in violation of 18 U.S.C. §§ 2 and 2113(d) (1982), and two bank robbery killings in violation of 18 U.S.C. §§ 2 and 2113(e) (1982). The indictment charges that the armed bank robberies were committed with the use of nine-millimeter handguns, shotguns, and M-16 automatic rifles.
In the aggregate, the charges against Shakur carry a maximum prison sentence in excess of two life terms and a possible fine of $80,000.
Shakur remained a fugitive throughout a five month trial of his alleged co-conspirators during the Spring and Summer of 1983. United States v. Ferguson, 758 F.2d 843 (2 Cir.), cert. denied, 474 U.S. 841, 106 S. Ct. 124, 88 L. Ed. 2d 102 (1985).
A continuing investigation into the whereabouts of Shakur and Cheri Dalton, another fugitive charged in the indictment, led the FBI to Los Angeles, California. There it learned that Shakur and Dalton had resided together under the fictitious names "David and Claudia Bryant" until May 1985, the month of the arrest of Marilyn Buck. Buck was another Brinks fugitive and now is Shakur's codefendant. See United States v. Buck, 813 F.2d 588 (2 Cir. 1987).
Shakur's four year elusion of the FBI came to an end on the morning of February 11, 1986, when he was arrested on a Los Angeles street by FBI Special Agent David Mitchell. At the time of his arrest, Shakur was in possession of a California driver's license under the fictitious name of "Eugene Allen". The license listed a fictitious address and a fictitious date of birth as well.
Shortly after Shakur's arrest, Agent Mitchell discovered a flyer entitled "'BY ANY MEANS NECESSARY'" in a public place in Los Angeles. The flyer purported to have been published by the "New Afrikan People's Organization". It was subtitled:
"STRUGGLE FOR THOSE THAT STRUGGLE FOR YOU MUTULU SHAKUR: FREEDOM FIGHTER, NOT A TERRORIST".
The flyer asserted that "the U.S. court system, in actual fact, has no moral or legal right to try Dr. Shakur. . . . We support Dr. Shakur being flown to a country where human rights are respected." The flyer concluded by urging fellow supporters to " Free Mutulu Shakur Now !"
On February 18, 1986, a magistrate in the Central District of California ordered Shakur detained for trial on the grounds that he posed both a risk of flight and a danger to the community. 18 U.S.C. § 3142(e). Shakur waived formal extradition proceedings. He was transported in custody to the Southern District of New York, where he was arraigned on the instant indictment on March 7, 1986. As he was led into the courtroom to be arraigned, Shakur announced to his supporters that he brought them greetings from "Nehanda", a name by which Dalton, still a fugitive, is known among Shakur's supporters. After pleading not guilty to the charges in the indictment, Shakur once again addressed his supporters:
"I would like to first thank all of my supporters who have come out here today. Secondly, I wish to apologize for being caught. I am a New Afrikan Freedom Fighter. . . .
As a captured freedom fighter of the New African Nation I am a prisoner of war. I demand to be treated in accordance with the Geneva Convention."
On October 15, 1986, eight months after his arrest and initial detention, Shakur filed the instant application pursuant to 18 U.S.C. § 3145(b) to be released on bail pending trial. In an affidavit filed by his attorney, it was urged that Shakur's departure from New York and fugitive status should be discounted on two grounds: first, it was asserted that the government would be unable to show that he had left New York while an arrest warrant was outstanding against him; and, second, implying that he justifiably had remained a fugitive, it was claimed that there was "evidence to show that the reckless, brutal warfare waged against New Afrikan Political Activists after October 20, 1981 created every objective reason to believe that the lives of Dr. Shakur and of numerous others were in danger if seized by US Law Enforcement or local American Law Enforcement Personnel."
In papers filed October 22, the government opposed the application on the ground that Shakur poses a serious risk of flight and "no condition or combination of conditions will reasonably assure [his] appearance as required." 18 U.S.C. § 3142(e).
The district court heard initial arguments on the application on October 24, 1986. At the court's invitation Shakur submitted his own affidavit on October 30. In his affidavit, Shakur again demanded "to be treated in accordance with the Geneva Convention" since he was "a captured Freedom Fighter of the New Afrikan Nation" and "a Prisoner-of-War". He asserted that "I have never been a fugitive from Justice" but rather was "legitimately cautious, concerned and fearful of the U.S. Government's potential and likelihood of committing criminal acts against me under a pretext of arrest." In explaining that "my security will be enhanced and my security concerns even further reduced" by release on bail, Shakur averred that "I am encouraged presently by the even handed manner in which the present court has considered and ruled on motions brought before it by my codefendant. . . . This certainly has positively effected [sic] my view of my security." One of the "motions" to which Shakur referred apparently was a motion by Buck to suppress certain evidence against her. See Buck, supra, in which our Court reversed two pre-trial orders entered October 24 and December 3, 1986, respectively, by Judge Haight suppressing certain evidence against Buck.
In a supplemental affidavit filed in the instant case on December 3, 1986, Shakur's counsel requested an evidentiary hearing to "establish the reasonable basis for and existence of fear on behalf of Dr. Shakur for his safety and the safety of others during a period when he was absent from the jurisdiction of the Southern District of New York." The district court held an evidentiary hearing on December 22-23, 1986. Shakur called seven witnesses, most of whom were either members of his family or his political supporters. None of the witnesses testified to any contact or conversations with Shakur during the years he was a fugitive. Rather, to the extent that the testimony could be considered relevant to the question of Shakur's motivation for flight, the witnesses related their own perceptions of public events and testified to conversations with ...