Appeals from orders of the United States District Court for the Southern District of New York (Griesa, J.) granting the government's motions to revoke appellants' bail.
Feinberg, Chief Judge, Meskill and Pierce, Circuit Judges.
Wayne Davis and Mary Davis bring these expedited appeals from orders of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, revoking their respective releases on bail pending trial. Though appellants raise several arguments on appeal, we need only address their claims (1) that they were denied their right to testify, to cross-examine witnesses who appear, and to present evidence at a hearing, and (2) that the district court did not include written findings of fact in its detention order, which they contend is required by 18 U.S.C. § 3148(b) (1982 & Supp. IV 1986). We conclude that, under § 3148, appellants are entitled to a further hearing, to specific findings by the district court, and to a statement of the court's reasons for revocation and detention. Accordingly, we remand.
We set forth briefly the pertinent facts of this case, as gleaned from the papers submitted on this expedited appeal. On October 21, 1987, Wayne Davis was arrested with twenty-two other persons and charged with violations of the federal narcotics laws. Following the government's motion for pretrial detention pursuant to 18 U.S.C. § 3142(e) (1982 & Supp. IV 1986), Magistrate Buchwald held a hearing on October 27, 1987, at which counsel for the government and counsel for Wayne Davis made proffers. Based on the rebuttable presumptions against pretrial release in narcotics cases, see id., the magistrate ordered that Wayne Davis be detained.
On November 5, 1987, Wayne Davis was indicted along with twelve other persons on charges of federal narcotics violations. Wayne Davis was arraigned on November 12, 1987. An appeal of the magistrate's detention order was argued before Judge Griesa on November 17, 1987, and was denied. On December 10, 1987, a superseding indictment was filed which added new narcotics counts against Wayne Davis and added a new defendant, Mary Davis, who is the wife of the lead defendant, Brooks Davis. A second appeal of Wayne Davis's detention order was argued before Judge Griesa on December 23, 1987, and was denied.
On January 4, 1988, Mary Davis appeared before Magistrate Gershon for the setting of bail. With the government's consent, bail was set at $250,000 by personal recognizance bond, to be secured by $100,000 in real estate. On January 7, 1988, in light of a rescheduling of the trial from January 25, 1988 to April 4, 1988, the government reached an agreement on bail conditions for Wayne Davis, including $750,000 by personal recognizance bond, secured by the residences of two relatives, and travel restrictions enforced by an electronic wristlet to be worn by Wayne Davis.
On April 11, 1988, just prior to the commencement of jury selection, the government moved for remand of Wayne Davis, Mary Davis, and co-defendant Claddis Arrington. During the long colloquy that ensued, the government made a proffer that a confidential informant had implicated Wayne Davis and Claddis Arrington in plans to harm witnesses. The government indicated that two government witnesses recanted their testimony under suspicious circumstances. A third potential witness was shot two days before the trial was to commence. In response to the government's proffer, Wayne Davis's counsel argued that there was no proof of his client's involvement in the alleged efforts to harm witnesses and that his client had no motive to have the third potential witness shot since he had obtained strong impeachment evidence against that potential witness. Mary Davis's counsel argued that the government had said nothing to connect his client to the alleged acts. Though defense counsel did not request that defendants be present during this colloquy, they did indicate their belief that defendants were entitled to a hearing under 18 U.S.C. § 3148. However, after noting that "indications are . . . strong" that defendants were involved in witness intimidation and attempted murder, the district court orally granted the government's motions for remand of defendants and concluded the hearing.
On April 12, 1988, the second day of jury selection, defense counsel renewed their request for a hearing and announced that another potential government witness, the informant whose testimony had formed the basis of the government's proffer the day before, had recanted. The district judge denied the request for a hearing, indicating that the hearing conducted the day before had been sufficient and that he did not intend to take testimony from the informant who recanted. Orders revoking the appellants' bail which were filed that day were not accompanied by particularized findings of fact. Wayne Davis and Mary Davis subsequently sought review of the orders revoking their releases on bail pending trial, and this appeal was argued on April 19.
Appellants make several arguments to support their claim that the district court's revocation of their bail violated 18 U.S.C. § 3148. We need only reach appellants' procedural arguments, namely, that they were denied the opportunity to testify, to call witnesses, and to cross-examine witnesses who appear, and that the district court failed to issue written findings of fact, as required by § 3148.
Section 3148 sets forth procedures to be followed and standards to be observed for revocation of an order of release pending trial. In relevant part, § 3148(b) provides that a "judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer -- (1) finds that there is -- (A) probable cause to believe that the person has committed a Federal, State, or local crime while on release . . . . If there is probable cause to believe that, while on release, the person committed a Federal, State, or local felony, a rebuttable presumption arises that no condition or combination of conditions will assure that the person will not pose a danger to the safety of any other person or the community" (emphasis added).
Though the statute is silent as to the nature of a § 3148(b) hearing, Wayne Davis contends that the hearing envisioned by § 3148 is akin to the detention hearing required by 18 U.S.C. § 3142(f). In support of this claim, Wayne Davis observed that the Supreme Court in United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), held the Bail Reform Act to be constitutional, in part, because of the numerous procedural safeguards which must be afforded defendants prior to pretrial detention. Those safeguards included the right to counsel, the right of the accused to testify in his own behalf, to present information by proffer or otherwise, to cross-examine witnesses who appear at the hearing, see 18 U.S.C. § 3142(f), ...