United States v. Manuel W. James, Etc. And Gustavo Fernandez , 674 F.2d 886 ( 1982 )

KRAVITCH, Circuit Judge:

Manuel James and Gustavo Fernandez appeal from the district court’s amendment of their conditions for bond under 18 U.S.C. § 3146. Appellants contend that their bonds could not be altered absent proof that they had violated a bond condition, that the policy of the Northern District of Florida against property bonds violates § 3146, that the amended bonds denied them their eighth amendment rights not to be subjected to excessive bail, and that the trial court failed to give adequate reasons for the bond amendment. We reject these contentions and affirm.¹

I. Background

Both James and Fernandez are long-time residents of Key West, Florida, and have family ties and property there. James is an attorney, and Fernandez has been employed for the past four years by Safe Harbor Boat Repair Company. In September 1981 both men were indicted under the federal drug laws and the Racketeer Influenced and Corrupt Organization Act (RICO) for their involvement in a multi-million dollar marijuana smuggling enterprise which operated from 1977 to 1981.² The charges carry a potential for life sentences without parole.³

After the indictment was returned, Judge Higby of the Northern District of Florida issued a warrant for appellants’ arrests; the warrant stated that bond would be set at $20 million.⁴ Both James and Fernandez voluntarily surrendered to federal authorities in the Southern District, and made their initial appearance before a federal magistrate of that district who after a hearing set a $5 million property bond for Fernandez and a $1 million bond consisting of $50,000 corporate surety, $450,000 personal surety and $500,000 property for James. Subsequently, pre-trial proceedings on the charges began in the Northern District, and at a hearing on various pre-trial motions the government orally requested reinstatement of the $20 million bond.⁵ The trial court rejected the government’s request, but amended the bonds to require a $2 million cash or corporate surety bond for each appellant. Neither James nor Fernandez were able to post the amended bond, and this appeal followed.

II. Amendment of Bonds under 18 U.S.C. § 3146

Appellants’ first argument is that a district court has no authority to increase a bond unless evidence is presented to show that the defendant has violated or is about to violate a condition of release. We reject this argument. Title 18, United States Code, § 3146(e) states:

(e) A judicial officer ordering the release of a person on any condition specified in this section may at any time amend his order to impose additional or different conditions of release: Provided, That, if the imposition of such additional or different conditions results in the detention of the person as a result of his inability to meet such conditions or in the release of the person on a condition requiring him to return to custody after specified hours, the provisions of subsection (d) shall apply.⁶

Thus by the express statutory language, the judicial officer who first sets the conditions of release “may at any time amend his order to impose additional or different conditions of release ...” (emphasis added). The “at any time” language indicates that an amendment of conditions of release is not conditioned on any event or evidence of a potential violation of the conditions by the accused.

Appellants nevertheless contend that 18 U.S.C. § 3143 controls the imposition of more onerous bond conditions. This section states:

When proof is made to any judge of the United States, or other magistrate authorized to commit on criminal charges, that a person previously released on the execution of an appearance bail bond with one or more sureties on any such charge is about to abscond, and that his bail is insufficient, the judge or magistrate shall require such person to give better security, or, for default thereof, cause him to be committed; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued, by such judge or magistrate, setting forth the cause thereof.

We, however, do not agree that § 3143 circumscribes the authority of a judicial officer to amend the conditions of release under § 3146(e). The “shall require” language of § 3143 indicates that an increase in bail is mandatory upon the proper proof that the defendant is about to abscond. Section 3146, on the other hand, is permissive, and enables, but does not require, amendments to conditions of release at any time and for reasons other than the possibility the accused will abscond. Moreover, it would be illogical to hold that Congress, in stating that a judicial officer may “at any time” impose additional conditions of release, in fact intended for additional conditions to be permitted only upon proof the defendant was about to leave the jurisdiction. We therefore conclude that § 3143 did not bar the trial court’s action in this case. Cf., United States v. Zuccaro, 645 F.2d 104, 106 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981) (“trial judge may amend conditions of bail subject only to the statutory standards applicable to the setting of bail without any prior determination that the magistrate’s order was clearly erroneous or contrary to law.”).

Although we find that § 3143 does not affect a judicial officer’s authority to amend conditions of release under § 3146, the district court’s authority to amend appellants’ bonds in this case requires further analysis. According to § 3146(e), the authority of that subsection extends to “the judicial officer ordering the release” of the defendant. Here the judicial officer who ordered the release of James and Fernandez was not the district court for the Northern District of Florida, but a magistrate of the Southern District. Thus we are presented with the problem whether the district court having original jurisdiction over the ease may amend the conditions of a defendant’s release on motion by the government even though that court is not the releasing officer under § 3146(e).⁷

This exact issue was the subject of a recent Second Circuit case, United States v. Zuccaro, 645 F.2d 104 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981). In Zuccaro, the appellant was arrested and brought before a federal magistrate who set bond at $150,000. The following day the district attorney motioned the district court to have bail increased to $500,000. After a hearing, the district judge set bail at $350,000 and Zuccaro appealed, claiming that because the trial judge was not the releasing officer under § 3146(e), he could not amend the bond set by the magistrate unless he found the magistrate’s order “clearly erroneous.”⁸

The Second Circuit rejected this argument and affirmed the district judge. The court reasoned that because conditions of bail govern release “pending trial,” 18 U.S.C. § 3146(a), the conditions necessarily extend into a period during which the judge with original jurisdiction over the case would be exercising that jurisdiction as to pre-trial matters. He therefore must have the authority to make such orders he deems necessary to ensure the presence of the defendants at trial, and the government should be able to invoke that authority. The court, moreover, noted that in many cases (such as the case before us) the defendant’s initial appearance would occur in a district other than that of prosecution; in such cases, insisting that the government return to the original releasing officer to request amendments to the conditions of bail would be a gross waste of resources. Finally, the court concluded that because the range of officers empowered to set initial release conditions covered a wide variety of persons, including local justices of the peace, Congress likely did not intend that the conditions be immune from supervision by the trial judge.

We find this reasoning persuasive and adopt it as our own. Thus we hold that despite the fact the district judge was not the releasing officer under § 3146(e), he had authority as the court with original jurisdiction over the case to amend the conditions of appellants! release on motion by the prosecution.

III. The Legality of the Amended Bond

Appellants also attack the legality of the amended bond on several grounds. First they assert that the policy of the Northern District of Florida not to accept property bonds is contrary to the primary policy behind § 3146, which is to permit release of the defendant pending trial under the least restrictive condition compatible with assuring the future appearance of the accused. United States v. Cramer, 451 F.2d 1198 (5th Cir. 1971). Accord, United States v. Honeyman, 470 F.2d 473 (9th Cir. 1972); United States v. Smith, 444 F.2d 61 (8th Cir. 1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); United States v. Bronson, 433 F.2d 537 (D.C.Cir.1970).

Because of the clear purpose behind § 3146, we would have difficulty with upholding the legality of denying or altering a property bond solely because of a stated policy against those bonds. Such a situation is not present in this case, however. Although the trial court’s orders⁹ asserted that the policy óf the Northern District against property bonds was a reason for altering the type of security, as opposed to the amount, a reading of the orders as a whole indicates that the court’s primary concern in altering the bonds was assuring that James and Fernandez would be present at trial. In the body of each order, for example, the court specifically discussed the factors under § 3146 weighing in favor and against an amended bond. In the Fernandez order, the trial court also specifically noted that the $2 million property bond was “the minimum needed to secure his appearance at trial.” In the final paragraph of the James order, moreover, the trial court stated, “I find a bond of $2 million, cash or corporate surety, is the minimum required to ensure James’ attendance at trial.” Hence we find that because the primary purpose of the bond amendments in this case was to secure appellants’ future presence and not merely to implement a policy against property bonds, the amendments were not illegal.

Appellants also urge that the amended bond denied them their eighth amendment rights to be free from excessive bail and that the trial court’s reasons for amending the conditions of release were inadequate. We disagree. The basic test for excessive bail is whether the amount is higher than reasonably necessary to assure the accused’s presence at trial. United States v. Beaman, 631 F.2d 85, 86 (6th Cir. 1981); United States v. Wright, 483 F.2d 1068, 1070 (4th Cir. 1973); United States v. Bobrow, 468 F.2d 124, 127 n.16 (D.C.Cir. 1972). As long as the primary reason in setting bond is to produce the defendant’s presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority, and we may review only for an abuse of that discretion. United States v. Cook, 428 F.2d 460, 461 (5th Cir. 1970). Accord United States v. Archie, 656 F.2d 1253, 1258 (8th Cir. 1981). See United States v. Zuccaro, 645 F.2d 106-07 (2d Cir.), cert. denied, - U.S. -, 102 S.Ct. 110, 70 L.Ed.2d 96 (1981).

After reviewing the record and the district court’s orders in this case, we conclude that the amended bond was not excessive and no abuse of discretion occurred. The court below specifically examined the various factors listed in § 3146 and, after hearing a substantial portion of the government’s evidence in the case relating to earlier pre-trial motions, concluded that the seriousness of the offense, the severity of the possible sentence, the central roles of James and Fernandez in the illegal enterprise, and the weight of evidence against each man created a significant risk of flight which warranted the amended bond. The explanation given by the trial court comported with the requirements of § 3146, and demonstrated that the primary purpose behind the amended bond was to reasonably assure the presence of James and Fernandez at trial.¹⁰ Accordingly, the orders of the district court amending the bonds of appellants are affirmed.

AFFIRMED.

1 . We have jurisdiction over this appeal under 18 U.S.C. § 3147(b). This case was entitled to preference in processing and disposition pursuant to Eleventh Circuit Rule 12.

2 . Specifically, appellants were indicted for racketeering activity in violation of 18 U.S.C. §§ 2, 1961, 1962(c) & (d), and 1963; conspiracy to possess marijuana with intent to import, conspiracy to possess marijuana with intent to distribute, and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, 960, and 963; and a continuing criminal enterprise under 21 U.S.C. § 848.

3 . 21 U.S.C. § 848.

4 . Although the warrant stated that bond was set at $20 million, James and Fernandez did not make an initial appearance before Judge Higby for a bond hearing. Rather, the initial appearance and bond hearing was before federal magistrate Patricia Kyle of the Southern District of Florida. Hence we conclude that Magistrate Kyle, not Judge Higby, was the “releasing officer” under § 3146. See text infra.

5 . At the time of this request, the court had heard a substantial portion of the evidence against James and Fernandez as a result of their motions to suppress.

6 . 18 U.S.C. § 3146(d) states:

(d) A person for whom conditions of release are imposed and who after twenty-four hours from the time of the release hearing continues to be detained as a result of his inability to meet the conditions of release, shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. Unless the conditions of release are amended and the person is thereupon released, the judicial officer shall set forth in writing the reasons for requiring the conditions imposed. A person who is ordered released on a condition which requires that he return to custody after specified hours shall, upon application, be entitled to a review by the judicial officer who imposed the condition. Unless the requirement is removed and the person is thereupon released on another condition, the judicial officer shall set forth in writing the reasons for continuing the requirement. In the event that the judicial officer who imposed conditions of release is not available, any other judicial officer in the district may review such conditions.

7 . Under § 3147(a), the defendant may move the court of original jurisdiction for an amendment of bond conditions, but the statute does not specifically give the government such authority.

Although the issue concerning whether the district judge with original jurisdiction has authority to amend bond conditions despite not being the “releasing authority” under § 3146 was not specifically raised by appellants, appellants broadly asserted that the district court lacked the authority to enter the amendments in this case; hence, we consider the issue properly before us.

8 . 28 U.S.C. § 636(b)(1)(A) authorizes a judge to reconsider a pre-trial matter first determined by a magistrate if “the magistrate’s order is clearly erroneous or contrary to law.”

9 . The order amending James’ bond stated:

At the conclusion of the motions hearing in this case the government moved to modify the conditions of Mr. James’ bond. After consideration of the factors set forth in Title 18, United States Code, Section 3146,1 granted the motion, raising Mr. James’ bond to $2,000,000.00 cash or corporate security. My reasoning was set out in open court. This order reiterates it.

Mr. James was originally released on $1,000,000.00 bond, $50,000.00 full surety, $500,000.00 personal surety, and another $450,000.00 personal surety cosigned by two other people. The personal surety bonds were secured by property.

The type of surety allowed Mr. James is unacceptable. According to the parties, the Magistrate allowed Mr. James to post property because the United States Attorney agreed to the arrangement, apparently because he was involved in plea negotiations of some sort with Mr. James. The judges of this district have steadfastly refused to accept property as bond security. The United States Attorney is not a judge of this district and cannot by his agreement alter the policies of this court. The policy against accepting property bonds is the reason for modifying the conditions of James’ release to require full or corporate surety.

Two of the factors to be considered in determining conditions of release, set forth in Title 18, United States Code, Section 3146(b), are the reasons for the increase in James’ bond. The weight of the evidence against Mr. James is heavy. That determination follows from my rulings on the motions to suppress, taped telephone conversations provided in the ex parte in camera hearing held on the motion to disqualify James’ attorneys, and transcripts of the Grand Jury testimony of Clyde William Cobb, Thomas Dan Abbey, Patrick Lloyd Robinson, and Thomas E. Alexander. Not only is the evidence persuasive, Mr. James as an experienced criminal attorney, unlike most defendants, is capable of accurately assessing its impact and the future it portends.

The second factor causing modification of James’ bond is the nature and circumstances of the crime. James is charged with being a major planner of and participant in a large, wide-ranging, complex, effective, highly profitable, drug importation conspiracy of at least four years duration. Mr. James is charged with using his legal talents to facilitate the enterprise. The charges and supporting evidence indicate Mr. James would be as likely to exploit the law’s failings in his own behalf as readily as he did on the conspiracy’s.

Other factors listed in section 3146 weigh in Mr. James’ favor. While he has no strong ties to the Northern District of Florida, he has strong family ties to Key West in the Southern District, and he is a long-time resident of Key West. James has no convictions and has never failed to appear at a court proceeding; in fact he turned himself in when he learned of this indictment.

One other factor weighs in my bond modification decision. James has demonstrated an ability to disappear from the country for an extended period of time. The evidence against him coupled with his ability to evaluate it give him great motivation to fail to appear. The nature and circumstances of the crime show James has no compunction about disobeying his oaths and court rules. His previous sojourn outside the jurisdiction shows his ability to avoid trial by departing. These factors outweigh both the presumption that a defendant will appear for trial and the other factors weighing in James’ favor.

I find a bond of $2,000,000.00, cash or corporate surety, is the minimum required to ensure James’ attendance at trial. All other conditions of release previously imposed, including restriction of travel to the Southern District of Florida, except for travel to the Northern District for proceedings in this case, remain in effect.

DONE AND ORDERED this 20th day of January, 1982.

The Fernandez order was substantially similar.

10 . Appellants intimate that James’ bond amendments were the result of James’ decision not to cooperate with the government in its investigation and prosecution of the marijuana enterprise. The record, however, does not support this charge. Although the fact of his noncooperation was mentioned at the bond hearing, the primary grounds for the government’s motion were the weight of the evidence against James and the fact that James had demonstrated the ability to remain beyond the jurisdiction of the United States as evidenced by his 18-month Caribbean trip prior to the indictment. James’ failure to cooperate, moreover, was not mentioned in the trial court’s order amending the bond conditions.