United States v. John Edward Clark, A/K/A Eddie Hatcher, Timothy Bryan Jacobs, Defendants , 865 F.2d 1433 ( 1989 )

WILKINS, Circuit Judge:

John Edward Clark, a/k/a Eddie Hatch-er, and Timothy Bryan Jacobs appeal from a district court order of detention pending trial on criminal charges. We affirm.

I.

On February 1, 1988 Defendants allegedly took 21 people hostage at gunpoint in a newspaper office in Lumberton, North Carolina, in an effort to focus public attention on what they claimed was discrimination against blacks and Indians. Although they released some of the hostages throughout the day, others were detained for approximately nine hours until Defendants surrendered to federal agents. On February 2 Defendants, accompanied by their attorney, made their initial appearance before a United States Magistrate. They were formally charged with detaining and threatening to kill hostages in violation of the Hostage Taking Act, 18 U.S.C.A. § 1203 (West Supp.1988), and unlawfully making and possessing a sawed-off shotgun in violation of the National Firearms Act, 26 U.S.C.A. §§ 5861(d), (f) (West 1980). The transcript of the proceedings before the magistrate clearly shows that at the beginning of the hearing Defendants were placed under oath and questioned regarding their educational backgrounds, the possible influence of any intoxicants, their medical conditions, and their ability to understand and participate in the proceedings. Hatcher responded that he had attended college for five years, and Jacobs stated that he was a high school graduate. Both Defendants denied being under the influence of any intoxicants, and indicated that they were able to understand and participate in the proceedings.

When advised of the charges, Defendants indicated that they understood them. The magistrate also advised them of their “right to be considered for bail or release on conditions pending the time this case is in the court.” At this point in the proceedings the government attorney moved for detention pending trial and informed the magistrate that “[pjursuant to my conversations with Mr. Cunningham, [Defendants’] attorney, we agree that it would [be] in the best interest of both his client[s] and the body politic at large that they be detained. Our agreement is, I think, that they will waive a detention hearing.” Mr. Cunningham, in the presence of Defendants, represented to the court that this was a correct statement of the agreement. On the basis of this agreement by which Defendants expressed their desire not to be released, the magistrate issued a detention order without receiving additional evidence.

An indictment was returned on February 9 charging Defendants with conspiracy to violate sections 1203 and 5861 and related substantive counts. On February 11 Defendants moved to reopen the detention hearing. The magistrate offered to set the hearing for Friday, February 12, Tuesday, February 16, or Wednesday, February 17.¹ Defendants’ counsel elected to proceed on February 17. After a day-long hearing, the magistrate ordered Defendants held pending trial. In the detailed detention order issued February 18, the magistrate stated his finding that “the defendants have failed to rebut the presumption that no condition of release [would] reasonably assure the safety of any other person and the community.”

Defendants immediately moved to reopen the detention hearing to submit new evidence. The magistrate granted the motion and held another hearing on February 19. The magistrate again ordered the Defendants detained, concluding that he could “construct no combination of conditions of release which [would] assure the court of the safety of any other person, including that of the defendants themselves, and the community.”

Defendants thereafter moved for review of the detention order by a district judge. After holding a hearing and performing a de novo review, the district court found “that the Magistrate’s ruling on detention was supported by clear and convincing evidence at the time it was made and that the evidence supported] continuation of the order in force at [that time].” The district court also denied Defendants’ subsequent motion to vacate the detention order on the ground that a timely detention hearing was not held.

On appeal, the majority of a three-judge panel reversed the detention order “as fatally flawed by the failure to hold a timely detention hearing,” ordering that the district court release Defendants on appropriate conditions. United States v. Clark, No. 88-5079, slip op. at 4 (4th Cir. June 30, 1988), [850 F.2d 690 (table) ]. (unpublished). Pursuant to the mandate of this court, Defendants were released on July 6. However, on August 3, rehearing en banc was granted by a majority of the active members of this court. Subsequently, on August 26, the mandate was recalled and the detention order was reinstated. Jacobs promptly surrendered to authorities. Hatcher refused to do so and remained a fugitive until he was captured a few days prior to the scheduled trial date. Defendants’ trial commenced on September 26 and had not concluded by the day of oral argument, during which time Defendants remained in custody. On October 6, this court issued a memorandum order affirming the district court detention order and reserving the right to file this opinion.

II.

Pursuant to the Bail Reform Act, a judicial officer shall detain a defendant pending trial if he finds by clear and convincing evidence “that no 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.” 18 U.S.C.A. §§ 3142(e), (f). Upon motion of the government for detention, “[t]he 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.” Section 3142(f).

Section 3142(f) further provides that:

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.

At the detention hearing, a defendant is “afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” Id. In making a determination on detention, the judicial officer must consider certain factual matters concerning:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person ...; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.

18 U.S.C.A. § 3142(g). A detention order must “include written findings of fact and a written statement of the reasons for the detention.” 18 U.S.C.A. § 3142(i)(l). A defendant ordered detained by a magistrate may seek de novo review in the district court. 18 U.S.C.A. § 3145(b); United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985).

At Defendants’ initial appearance the magistrate determined by direct questioning of Defendants that they were able to understand and participate in the proceedings. He specifically informed Defendants of their right to a detention hearing and with the assistance of counsel they waived that right because they desired to remain in custody for their own protection. Based on this waiver, the magistrate entered a short detention order without either conducting an evidentiary hearing pursuant to section 3142(f) or preparing a detailed order of written findings of fact and a written statement of the reasons for detention as required by section 3142(i). Defendants now contend that they are entitled to release arguing that they had an absolute, unwaivable right to a detention hearing within at most five days of their initial appearance, notwithstanding their representation that they did not wish to be released because they feared for their safety. The panel majority agreed and held that Defendants could not waive either the time requirements or the detention hearing itself. Holding further “that the magistrate’s failure to hold a detention hearing on February 2, 1988, or within five calendar days thereof constitutes a flat violation of the critical time requirements of 18 U.S. C. § 3142(f),” slip op. at 4 (citation omitted), the panel found that the appropriate remedy was release of Defendants under appropriate conditions. We now hold that both the time requirements and the detention hearing itself provided for in section 3142 are waivable. And, in cases where the requirements of the Bail Reform Act are not properly met, automatic release i¿ not the appropriate remedy.²

III.

Accepting the premise that “the procedures under section 3142 of the Act must be strictly followed as a precondition to detention,” United States v. Al-Azzawy, 768 F.2d 1141, 1145 (9th Cir.1985), the requirements of section 3142 must still be applied with common sense, United States v. Malekzadeh, 789 F.2d 850, 852 (11th Cir.1986). Rigid application of the Act when a defendant desires to remain in custody for his own protection is illogical and “exalt[s] form over substance.” United States v. Coonan, 826 F.2d 1180, 1182 (2d Cir.1987).

In Coonan, a detention hearing was not held until after expiration of the statutory time limits because defense counsel had informed the government that “bail was not an issue.” The court rejected the defendant’s argument that the statutory right is not waivable “since it would convert the time requirements of the act into a potential trap, available to defendants, that would undermine the functioning of the act, and would also require meaningless, ritualistic hearings in situations where no one wants them.” Id. at 1184.

The Act affords certain rights to defendants through procedural rules and defendants may voluntarily and knowingly waive those rights. If defendants can waive fundamental constitutional rights such as the right to counsel, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), or the right to a jury trial, Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), surely they are not precluded from waiving procedural rights granted by statute. Here, review of the transcript of the magistrate’s hearing on February 2 clearly shows that Defendants, who were represented by counsel, voluntarily and knowingly waived a detention hearing.

IV.

Although a defendant may waive an immediate detention hearing, this waiver is not an absolute, final relinquishment of all rights under the Bail Reform Act. When a defendant who has waived an immediate detention hearing later requests a hearing, one must be held within the procedural requirements of section 3142. In this sense, Defendants’ “waiver” of an immediate detention hearing can be viewed as a request for an indefinite continuance for good cause.

In a similar situation in Malekzadeh, where the defendant made no objection to a four-day continuance on motion of the government, the court found no violation of the Act despite the three-day limit under section 3142(f), reasoning that “common sense clearly tells us that the defense counsel implicitly requested that the hearing be continued [within the five days allowed on his own motion].” 789 F.2d at 852. Applying the same common sense here, Defendants implicitly requested an indefinite continuance for good cause as allowed under section 3142(f) — good cause being their concern for their personal safety. When Defendants later requested a detention hearing, one was held within five workdays on a date chosen by defense counsel. See Fed.R.Crim.P. 45(a); United States v. Melendez-Carrion, 790 F.2d 984 (2d Cir.1986).

V.

Having found that Defendants waived an immediate detention hearing and ultimately received a timely hearing when requested, we now turn to the merits of the detention order. Although the district court review of a magistrate’s detention order is de novo, our review of the final detention order of the district court is under a clearly erroneous standard. United States v. Williams, 753 F.2d at 333.

We begin by recognizing that in addition to being indicted on counts alleging violations of the Hostage Taking Act and the National Firearms Act, Defendants were charged with use of firearms in the commission of a crime of violence in violation of 18 U.S.C.A. § 924(c) (West 1976 & Supp.1988). This charge gave rise to a rebuttable presumption that “no condition or combination of conditions [would] reasonably assure the appearance of the person as required and the safety of the community.” Section 3142(e). Following an evidentiary detention hearing, the magistrate found that clear and convincing evidence required the detention of Defendants pending trial because “no condition of release [would] reasonably assure the safety of any other person and the community.” The district judge subsequently conducted a separate hearing and made a de novo determination that the record supported detention by clear and convincing evidence that “no conditions or combination of conditions would reasonably assure the appearance of the defendants as required and also assure the safety of other persons and the community.”³ Our review of the record persuades us that the district court’s finding, by clear and convincing evidence, of insufficient conditions for release was not clearly erroneous.

AFFIRMED.

1 . Monday, February 15 was a federal holiday.

2 . See United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985) (although the detention hearing was untimely, the court remanded the case to the district court with instructions to hold a de novo hearing.)

3 . Contrary to Defendants’ contention that the district court order did not comply with the specificity requirements of section 3142(i), the district court order, viewed in conjunction with the magistrate’s order, sufficiently set forth written findings of fact and reasons for the detention.