Expedited appeal from an order of the United States District Court for the Southern District of New York, Hon. Leonard B. Sand, J., granting the government's motion for pretrial detention of defendant James Coonan.
Van Graafeiland,*fn* Pratt, and Altimari, Circuit Judges. Altimari, Circuit Judge, dissenting.
On this expedited appeal from an order of the United States District Court for the Southern District of New York (Sand, J.) granting the government's motion for pretrial detention of defendant James Coonan, we must consider the extent of the government's responsibilities to ensure that a prompt detention hearing is held where the government seeks pretrial detention under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. Since requiring the government to have insisted on a hearing within the strict time requirements of the act would, in the circumstances presented here, exalt form over substance, we conclude (1) that the government could seek pretrial detention of Coonan even though the detention hearing did not occur within the five days allowed by § 3142 (f), and (2) that on the basis of the evidence tendered at the hearing the district court properly ordered Coonan detained. We therefore affirm.
The act contains strict procedural requirements, designed to ensure that defendants are not held pretrial without due process. Section 3142(f) provides in relevant part:
Detention hearing. -- The judicial officer shall hold a hearing to determine whether any condition or combination of conditions * * * will reasonably assure the appearance of the person as required and the safety of any other person and the community --
(1) upon motion of the attorney for the Government * * * * * * *
The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days.
Here, Coonan's initial appearance occurred when he was arraigned in the Southern District of New York before Judge Griesa in Part I on Thursday, April 2. The government moved at that time for pretrial detention of Coonan and his four co-defendants. At the time, all of them were being held in state custody. The government also sought a three-day continuance, permitted under the act, and defendants apparently requested an additional day, so that the hearing could be held on Wednesday, April 8 (four "statutory days" after April 2, since "days" under the act does not include Saturdays, Sundays, or holidays, United States v. Melendez-Carrion, 790 F.2d 984, 991 (2d Cir. 1986)), which is the date that had been set down for the first pretrial conference in the case by Judge Leval, to whom the case had been assigned.
The hearing was not, however, held on April 8. On Monday, April 6, Judge Leval withdrew from the case, and on April 8, Judge Sand was chosen at random to replace him. During a meeting on that day in Judge Sand's chambers, the first conference was rescheduled for April 15.
When that first conference was held, new counsel for Coonan, Gerald Shargel, moved to have bail set for his client. He argued that the district court lacked jurisdiction to order detention under the act because no hearing had been held within the maximum five days allowed for continuances following a defendant's initial appearance. Judge Sand ordered expedited briefing of Coonan's jurisdictional arguments, and held a hearing on April 22, following which he ruled that he had jurisdiction to detain Coonan without bail, and he went on to grant the government's motion for detention, holding that there was a significant risk of flight and that Coonan was likely to seek to intimidate witnesses.
A. Jurisdiction of the District Court.
Coonan argues that the language of § 3142(f) means that the government may not seek his detention. He relies on United States v. Payden, 759 F.2d 202 (2d Cir. 1985), as holding that any departure from the procedural requirements of § 3142 ...