Opinion
Case No. C4-01-03.
April 12, 2001.
MEMORANDUM AND ORDER
Before the Court is the United States' Motion to Revoke Bond pursuant to 18 U.S.C. § 3145(a). (Doc. #48). The motion came on for hearing at 9:00 a.m. on Tuesday, April 10, 2001. Defendant and his counsel appeared via interactive television. The United States was represented by Assistant United States Attorney Janice Morley and First Assistant United States Attorney Lynn Jordheim. At the conclusion of the hearing, the motion was GRANTED. The Court's reasons are as follows.
Until the date of this hearing, defendant had been represented by Benjamin Pulkrabek, Mandan, North Dakota pursuant to the Criminal Justice Act, 18 U.S.C. § 3006(A). At the hearing, however, the Court was informed that Steven Balaban had been retained by the family and friends of defendant to represent him. In fact, both attorneys Pulkrabek and Balaban attended and participated in the hearing. The motions filed on behalf of the defendant which are referred to in this Order were prepared by defendant's appointed counsel before the substitution was allowed.
I. Background
A two-count indictment was filed against defendant charging him in count one with sexual abuse in violation of 18 U.S.C. § 2242 (2)(A) and 1153 and, in count two with incest in violation of 18 U.S.C. § 1153 and N.D. Cent. Code §§ 12.1-20-11 and 12.1-32-01. The case proceeded to trial, and defendant was convicted of both counts on April 4, 2001. The facts, as found by the jury, showed that on or about February 5, 2000, defendant raped his sister; that is, he engaged in a sexual act with her when she was incapable of appraising the nature of the conduct.
After conviction, the government moved to detain defendant pursuant to 18 U.S.C. § 3143(a)(2) because he had been found guilty of a crime of violence. The Honorable Patrick A. Conmy ordered defendant detained but instructed him that he could request a hearing before Magistrate Judge Dwight C. H. Kautzmann to review the detention. The detention hearing was conducted on April 6, 2001. The Magistrate ordered that defendant be released after determining by clear and convincing evidence that he was not likely to flee and was not a danger to any person or the community.
The United States sought review of that decision, arguing that the relevant statutory provisions do not allow post-conviction release in these circumstances. The Court requested partial transcripts of a bench conference with Judge Conmy on April 4, 2001, and the detention hearing before Magistrate Kautzmann on April 6, 2001. The Court has received those transcripts and has reviewed them along with the entire file. With due regard for the Magistrate's assessment, the Court agrees with the United States.
II. Analysis
Pursuant to 18 U.S.C. § 3145(a), the United States may seek review of a magistrate's order releasing a defendant by filing a motion seeking revocation with the court having original jurisdiction over the offense, i.e, the district court. 18 U.S.C. § 3145(a)(1). Although this Court did not conduct the trial in this case, it has original jurisdiction over the charged offenses. When reviewing a magistrate's release order, the district court conducts a de novo review and makes its own determination of the facts. See United States v. Walters, 89 F. Supp.2d 1217, 1219-20 (D.Kan. 2000). This does not mean, however, that the district court must "start from scratch;" rather, it may incorporate the record of the proceedings conducted below or open up the proceedings to take more evidence. See id.
The Court notes that Judge Conmy is currently on vacation for two weeks commencing April 6, 2001; thus, the undersigned is the only district judge available to hear the motion for review. Defendant requests that this Court defer ruling on the motion and remand the motion back to Judge Conmy. This, however, cannot be done. Section 3145(a) of Title 18, United States Code, provides that a motion for review of a release order "shall be determined promptly." In keeping with this statutory mandate, the Court cannot countenance deferring the matter until Judge Conmy returns. Moreover, the statute does not require the trial judge to consider the motion. Instead, the statute vests authority in the "court having original jurisdiction over the offense." See 18 U.S.C. § 3145 (a)(1).
The release of a convicted defendant pending sentencing is governed by 18 U.S.C. § 3143. Section 3143, as amended by the Mandatory Detention for Offenders Convicted of Serious Crimes Act, Pub.L. No. 101-647, Title IX, §§ 901, 902, Nov. 29, 1990, 104 Stat. 4826, made it much more difficult for a criminal defendant found guilty of certain violent offenses or drug trafficking crimes to secure release pending sentencing. See United States v. Burnett, 76 F. Supp.2d 846, 847 n. 3 (E.D.Tenn. 1999) (noting that the "Mandatory Detention Act" was a radical departure from prior law and amended provisions of the Bail Reform Act of 1984). In fact, after a guilty plea or conviction of one of the enumerated crimes, there is a strong presumption of mandatory detention, subject only to a very limited exception. See United States v. Rodriguez, 50 F. Supp.2d 717, 719 (N.D.Ohio. 1999). The relevant provisions of § 3143 provide:
The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A) . . . of subsection (f)(1) of section 3142 [crime of violence] and is awaiting imposition or execution of sentence be detained unless —
(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or
(ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and
(B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or impose a danger to any other person or the community.18 U.S.C. § 3143(a)(2) [bracketed language added].
There can be no question that defendant has been found guilty of a crime of violence as described in subparagraph (A) of subsection (f)(1) of § 3142. As used within § 3142, and chapter 207 in general, a "crime of violence" is defined to include any felony under chapter 109A [ 18 U.S.C. § 2241 et. seq.]. 18 U.S.C. § 3156 (a)(4)(C). Defendant's felony conviction for sexual abuse, i.e., rape, in violation of 18 U.S.C. § 2242 falls within chapter 109A and is unquestionably a "crime of violence." See id.; see also United States Sentencing Guidelines Manual § 4B1.2 applic. n. 1 (2000 ed.) (defining "crime of violence" to include forcible sex offenses). Consequently, defendant must be detained unless the judicial officer finds that he has overcome the presumption of detention. See United States v. Meyers, 106 F.3d 936, 941 (10th Cir. 1997) (noting that a basic canon of statutory construction is that use of the word "shall" indicates a mandatory intent).
Overcoming this presumption of detention is the heart of the issue before the Court. The Magistrate determined that defendant should be released after a thorough analysis that he was unlikely to flee and did not impose a danger to any person or the community pursuant to 18 U.S.C. § 3143(a)(2)(B). The United States argues that in order to overcome the presumption and gain release defendant must meet the conditions of both (A) and (B) in 18 U.S.C. § 3143(a)(2). Since the Magistrate made no finding regarding the conditions of (A), the United States argues that defendant should not have been released.
The United States is correct that both conditions of (A) and (B) of 18 U.S.C. § 3143(a)(2) must be satisfied in order to release a defendant convicted of a crime of violence pending sentencing. A plain reading of the statute indicates that when a defendant is found guilty of one of the listed crimes, the judicial officer must find either that there is a substantial likelihood that a motion for acquittal or new trial will be granted; or that the government is not seeking imprisonment; and that there is clear and convincing evidence that the person is not likely to flee or impose a danger to any person or the community. See United States v. Bloomer, 967 F.2d 761, 762 (2nd Cir. 1992) (discussing that 18 U.S.C. § 3143(a)(2) requires detention unless the two conditions of (A) and (B) are met). See also United States v. Irvin, 2 F.3d 72, 73 n. 1. (4th Cir. 1993) ("As the use of the word "and" in § 3143(a)(2) indicates, both subsections (A) and (B) must be satisfied in order to grant release pending sentencing."). Thus, the two conditions of (A) and (B) must be met.
Section 3145(c) of Title 18, United States Code, providing that the defendant may show that there are "exceptional reasons" why detention is in appropriate may also apply. See United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997). This section is discussed below.
The conditions of subsection (A) may be satisfied in one of two ways: first, if the judicial officer finds that there is a substantial likelihood that a motion for acquittal or new trial will be granted; or, second, if the United States attorney has recommended that no sentence of imprisonment be imposed upon the defendant. See 18 U.S.C. § 3143(a)(2)(A). Neither of these alternative conditions apply in this case. To begin, the trial judge has already denied defendant's motion for judgment of acquittal. (doc. #44). Thus, defendant stands guilty of these offenses. Although defendant has recently filed a motion for a new trial based on prosecutorial misconduct, this Court has no reason to believe that this motion will be successful in light of the fact that the motion for acquittal was denied. Further, the United States attorney does recommend a sentence of imprisonment in this case. Consequently, subsection (A) of 18 U.S.C. § 3143 (a)(2) cannot be met. Accordingly, defendant must be detained pending sentencing pursuant to 18 U.S.C. § 3143(a)(2).
This Court does not determine the merits of defendant's motion for a new trial. As the Eighth Circuit has explained, such motions are better handled by the trial judge because he or she is in a better position, having been present at the trial, to determine whether the alleged errors justify granting a new trial. See United States v. McBride, 862 F.2d 1316, 1320 (8th Cir. 1988). It is noted, however, that obtaining a new trial based on prosecutorial conduct is not easy. The defendant must establish not only that "misconduct occurred but that it `fatally infected' the trial." United States v. LaFuente, 54 F.3d 457, 462 (8th Cir. 1995).
Defendant has one other possible avenue to gain release. See United States v. Kinslow, 105 F.3d 555, 557 (10th Cir. 1997) (noting that § 3145(c) is an alternative to § 3143(a)(2)). Section 3145(c) provides that a defendant who is subject to detention under § 3143(a)(2), and who meets the requirements of § 3143(a)(1), may be ordered released by the judicial officer if it is clearly shown that there are exceptional reasons why defendant's detention would not be appropriate. See 18 U.S.C. § 3145 (c). This part of § 3145(c) falls within the subsection entitled "Appeal from a release or detention order." Id.
The Court admits that at first glance, the "exceptional reasons" provision would not seem to apply to the detention orders of the district court. However, the weight of authority is against that proposition. See United States v. Jones, 979 F.2d 804, 806 (10th Cir. 1992) (noting that all circuits that have addressed the issue have ruled that the "exceptional reasons" provision does apply to district courts); Burnett, 76 F. Supp.2d at 849 (noting that a great majority of district courts to have considered the issue conclude that the provision applies to district court detention orders). In determining that this provision is available to district courts, the Fifth Circuit noted that the provision refers to the "judicial officer," a term also used in § 3143(a)(2) and (b)(2) when referring to the individuals initially ordering such mandatory detention. See United States v. Carr, 947 F.2d 1239, 1240 (5th Cir. 1991). Consequently, the Fifth Circuit found it persuasive that the term "judicial officer" should be given a consistent definition throughout the release and detention chapter. See id. Finding no reason why Congress would have limited the "exceptional reasons" provision to the appellate courts, the Fifth Circuit concluded that district courts also had the power to use that provision notwithstanding that it was included in a section that generally covered appeals. Id.
The Eighth Circuit Court of Appeals has yet to determine definitively whether the "exceptional reasons" provision of § 3145(c) is available to district courts. See United States v. Mostrom, 11 F.3d 93, 95 (8th Cir. 1993) (accepting without analysis that the district court may consider whether exceptional reasons exist to release a defendant under § 3145(c)). This Court, however, is not the first in the Eighth Circuit to consider the issue. In United States v. Charger, Judge Kornmann, of the District of South Dakota, determined that the district court had authority under § 3145(c) to apply "exceptional reasons" in the first instance. See 918 F. Supp. 301, 304 (D.S.D. 1996). Based upon the overwhelming weight of both appellate and district court authority, the Court is persuaded that, if squarely faced with the issue, the Eighth Circuit would follow this trend. Accordingly, the Court concludes that it does have the authority to consider whether exceptional reasons exist making defendant's detention inappropriate under 18 U.S.C. § 3145(c).
A review of the statute, however, does not provide much guidance regarding what constitutes an "exceptional reason" making detention inappropriate. See United States v. Disomma, 951 F.2d 494, 497 (2nd Cir. 1997) (noting that the statute and legislative history on the issue is sparse and uninformative). In fact, the term is not statutorily defined at all. See 18 U.S.C. § 3145. Consequently, courts have been left to flesh out a definition, and the term has generally come to mean that which is "unique," "uncommon," "rare," or "out of the ordinary." See Disomma, 951 F.2d at 497; United States v. Koon, 6 F.3d 561, 563 (9th Cir. 1997) (Rymer, J., concurring); Burnett, 76 F. Supp.2d at 849. What constitutes "exceptional reasons," by its very nature, must be determined on a case-by-case basis. See Disomma, 951 F.2d at 497.
Defendant argues that there are three circumstances evidencing "exceptional reasons" why detention is inappropriate in his case. He relies on the facts that the Magistrate found persuasive in ordering that he was not a flight risk or a risk to the community. Namely, defendant argues that release is necessary to allow him to care for a sister (one different from the victim) suffering from cancer and a mentally handicapped brother. Moreover, defendant points to his good conduct while on pretrial supervision as support that it would be inappropriate to detain him pending sentencing.
The Court finds none of these circumstances persuasive. His good behavior while on pretrial supervision clearly cannot be called an "exceptional reason." See Mostrom, 11 F.3d at 95 (compliance with pretrial supervision and gainful employment up until the date of sentencing are not, in and of themselves, exceptional). Quite the contrary, the Court expects and demands that a defendant released on pretrial supervision or bond behave himself and follow the conditions of his release. The Court certainly would not set a precedent that obeying the conditions of pretrial supervision was a "rare" or "uncommon" event justifying release. As Judge Rymer explained in his concurrence in Koon,
[t]o be eligible for the `exceptional reasons' exception to mandatory detention, the defendant must have shown by clear and convincing evidence that he does not pose a danger to society or a risk of flight. . . . Showing just these things cannot be "exceptional." They are foundational. Otherwise, every violent offender would have as good a chance of getting bail . . . as every nonviolent offender.
See Koon, 6 F.3d at 564 (Rymer, J., concurring).
Next, defendant's family responsibilities, unfortunately, cannot be characterized as "rare" or "uncommon." Most criminal defendants come to court with responsibilities that make it difficult for them to be separated from their families. As hard as incarceration may be on families, it cannot be considered an exceptional reason. On this point, other courts have also found that the burden placed on families when one of their members is incarcerated is not exceptional. See Burnett, 76 F. Supp.2d at 849-50 (citing cases). Moreover, the actual facts here tend to show that the sister with cancer and the brother with mental disabilities have a large support network as there are ten siblings in this family. Consequently, the Court concludes that there are no exceptional reasons which make defendant's detention inappropriate. Consequently, he must be detained.
III. Conclusion
Based on the above, IT IS ORDERED that the Motion to Revoke Bond is GRANTED. Accordingly, IT IS ORDERED that the defendant, Keane Vallie, be DETAINED pending sentencing in this matter.
IT IS SO ORDERED.