United States v. Gonzolo Gonzales ( 1988 )

ORDER

Gonzolo Gonzales’ emergency motion for bond pending trial is denied. On March 18, 1988, after an evidentiary hearing, a magistrate in the Central District of California ordered Gonzales detained pending trial on the grounds that his release would pose danger to the community and that he was a flight risk. On March 21, 1988, Gonzales was taken to the Western District of Washington. On April 19, 1988, Gonzales was arraigned on an indictment returned in the Western District of Washington. On that date, a magistrate ordered that he be detained pursuant to 18 U.S.C. § 3145(b) because he was a danger to the community and a flight risk. On May 19, 1988, Gonzales appealed the detention order to the district court for the Western District of Washington.

The motion was scheduled for hearing on May 27, 1988. Section 3145(b) requires that a motion for the revocation of a detention order “shall be determined promptly.” Through inadvertence, however, the hearing on the motion for revocation was not conducted until June 24, 1988. The motion was denied. Eleven days later, on July 5, 1988, Gonzales filed an appeal to this court. Eight days later, on July 13,1988, Gonzales filed an application for a stay of the trial date set for July 18, 1988. On the same date, the Government was given 7 days to respond to the motion for a stay.

Gonzales contends that the district court’s failure to act on his motion for revocation for 36 days violated his right to have his motion heard promptly as required by Section 3145(b). Section 3145(b) does not define “promptly” nor does it provide a sanction or remedy for failure to provide timely review. United States v. Fernandez-Alfonso, 813 F.2d 1571, 1572 (9th Cir.1987).

In Fernandez-Alfonso, we held that a thirty-day delay “violates the promptness requirement of Section 3145(b).” Id., at 1572. In Fernandez-Alfonso, we determined that conditional release would be an appropriate remedy for a violation of the promptness requirement. In Fernandez-Alfonso, however, we were not faced with a finding by the district court and two magistrates that release of the defendant would pose a danger to the community. The district court in Fernandez-Alfonso determined that the accused posed a risk of flight. Id. Thus, contrary to Gonzales’ claim in his brief in this matter, we did not hold in Fernandez-Alfonso that conditional release of a defendant is an appropriate remedy “notwithstanding the finding[] of danger.” We believe it would be contrary to Congressional intent and the interests of society to release an individual who poses a danger to the safety of the community. Release of a person who may not appear for trial means that he may go unpunished for past behavior. This result penalizes the district court for its misdeed without placing society at risk. Release of a person who is a danger to the community, however, may result in the commission of future crimes against innocent persons. We decline to extend Fernandez-Alfonso to a case involving a finding of danger to the community.

Gonzales seeks only his conditional release pending trial. Thus, whether there are other remedies for a district court’s failure to determine promptly a motion for revocation of a detention order when the defendant poses a danger to the community is not before this court.

The emergency motion for bond pending trial is DENIED. The application for stay pending disposition of the emergency motion for bond pending trial is DENIED.