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UNITED STATES v. BESS

February 4, 1988

United States of America
v.
Gregory Bess



The opinion of the court was delivered by: ROBINSON

 Aubrey E. Robinson, Jr., Chief Judge

 This matter is before the Court on Defendant's Motion for Review of Detention Order. United States Magistrate Patrick J. Attridge ordered that the Defendant be detained pending trial following a hearing on January 14, 1988. Magistrate Attridge concluded, based upon evidence submitted at the hearing, that there was probable cause to believe that Gregory Bess ("Defendant") had committed the offense with which he was charged, bank robbery while armed with a gun, 18 U.S.C. § 2113(a), (d), and that no condition or combination of conditions listed in 18 U.S.C. § 3142(c) would reasonably assure the appearance of the Defendant and the safety of the community should Defendant be released pretrial.

 This Court held a hearing on January 25, 1988, at which it was established that Defendant was arrested on January 13, 1988 on charges of armed bank robbery. Defendant's counsel conceded that the evidence against the Defendant is strong. This evidence includes surveillance camera photos taken during the robbery and confessions to the bank robbery by both Defendant and his codefendant, Anthony Desnoes.

 Rather than contest the evidence against him, Defendant argued that the government had failed to sustain its burden that no condition or combination of conditions of release would reasonably assure Defendant's appearance or the safety of the community. To support his contention, Defendant proffered the following: Defendant did not attempt to flee when arrested and did not resist arrest; Defendant has no prior record; Defendant has two years of college and was a "semi-minister" licensed to perform religious services, which he did perform during the years 1981-1985; and Defendant had strong community and family ties, having lived in the District of Columbia for all of his life and with a resident girlfriend and supportive family who also live in Washington, D.C.

 Although the Magistrate based his detention order on risk of flight and danger to the community, this Court, for the reasons stated below, rests its detention order on the unreasonable risk of danger to the community that Defendant would pose if released pretrial. Thus the issue is whether the Government sustained its burden of establishing by clear and convincing evidence that no condition or combination of conditions of release would reasonably assure the safety of the community. See United States v. Simpkins, 264 U.S. App. D.C. 22, 826 F.2d 94 (D.C. Cir. 1987). For the reasons set forth below, the Court concludes that the Government has sustained its burden.

 As an initial matter, the Court must determine whether the statutory presumption of 18 U.S.C. § 3142(e) is implicated. This section provides, in relevant part:

 
Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, the Controlled Substances Import and Export Act, section 1 of the Act of September 15, 1980, or an offense under section 924(c) of title 18 of the United States Code.

 18 U.S.C. § 3142(e) (emphasis added) (citations omitted).

 Here the relevant offense is 18 U.S.C. § 924(c), which makes using or carrying a firearm during, and in relation to, a federal crime of violence calling for enhanced penalties if committed by use of a deadly or dangerous weapon a separate offense apart from the underlying crime of violence. 18 U.S.C. § 924(c). The Court found at the hearing that there was probable cause to believe that the Defendant committed an offense under 18 U.S.C. § 924(c), and ruled that this was sufficient to trigger the statutory presumption, even though Defendant had not been formally charged with violating 18 U.S.C. § 924(c). *fn1"

 Without question the primary purpose of the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., was to enable, if not require, a defendant's potential danger to the community while out on release pretrial to be taken into account when bail decisions were considered. Under the statute the Court is required to deny bail and order the defendant detained pretrial if the government sustains its burden of establishing that the defendant poses an unreasonable risk of danger to the community and that no condition or combination of conditions of release would reasonably assure the safety of the community. Because the defendant's substantial liberty interests are at stake, however, Congress imposed strict procedural safeguards to guide the inquiry of whether a defendant should be detained pretrial. See United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 2098-2103, 95 L. Ed. 2d 697 (1987) (discussing procedural safeguards). Thus the issue is whether judicial invocation of the statutory presumption sua sponte is consistent with the procedural safeguards outlined in the statute. The purpose of the Bail Reform Act, the plain terms of § 3142(e), the procedural framework for effectuating the Act's purpose, and the operation of the presumption convince this Court that judicial invocation of the statutory presumption is proper.

 With due deference to the Court of Appeals for the Second Circuit, this Court does not read the "plain language of the statute" as indicating that the presumption "was intended to arise only after a defendant has been charged with the particular offense by a valid complaint or indictment." United States v. Chimurenga, 760 F.2d 400, 405 (2nd Cir. 1985). The "plain language" of § 3142(e) states that the presumption applies upon a finding by " the judicial officer " that there is probable cause to believe that the person committed an offense under 18 U.S.C. § 924(c). Section 3142(a), upon which the Second Circuit relied, speaks of a person charged with an offense, a necessary first step to determining whether a particular person is properly before the court, and if so whether he should be released or detained pending further proceedings. It is undisputed that Defendant was charged with an offense.

 The next procedural prerequisite is a motion for pretrial detention, which can only be made under certain circumstances. The Defendant here was charged with a crime of violence, one of the limited circumstances entitling the government to move for pretrial detention. 18 U.S.C. § 3142(f). Once the government makes a proper motion for pretrial detention, a hearing is mandated to determine whether any condition or combination of conditions of release will reasonably assure the appearance of the person as required and the safety of any other person and the community. This hearing must proceed in accordance with strict procedural safeguards outlined in § 3142(f). There is no dispute that the government had a proper basis for its pretrial detention motion and that it was timely made. Likewise, with the exception of whether the government carried its burden by clear and convincing evidence, there is no dispute regarding compliance with the procedural safeguards outlined in § 3142(f) and that the hearing proceeded in a timely fashion.

 At the hearing, with or without the presumption, the government bears the burden of establishing that no condition or combination of conditions of release will reasonably assure the appearance of the defendant as required or the safety of the community. And in the case where detention is ordered on the basis of the defendant's dangerousness, the facts which support the finding that no combination of conditions will reasonably assure the safety of the community must be supported by clear and convincing evidence. 18 U.S.C. § 3142(f). The presumption, although it unquestionably aids the government in carrying its burden, is not determinative. It is the Court's ...


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