Opinion
No. 02-M-8039-01
June 19, 2002
MEMORANDUM AND ORDER
Defendant James Riccardi ("Defendant") made his initial appearance before the Magistrate Judge on June 18, 2002 with respect to a criminal Complaint filed in the United States District Court for the District of Kansas charging him with unlawful possession of visual depictions of minors involved in sexually explicit conduct in violation of Title 18 U.S.C. § 2252(a)(4)(B).
During this appearance, the government requested Defendant be detained pending trial in this matter. In support of detention, the government argued that releasing Defendant poses a danger to the community and that no condition of release, or combination of conditions of release, exists that reasonably would assure the safety of the community. With that said, the government then moved to defer the issue of detention for three days in order to allow it to prepare for the detention hearing at which it would establish Defendant's alleged dangerousness.
A continuance of the detention hearing specifically is authorized by 18 U.S.C. § 3142(f)(2), but, if requested by the government, such continuance shall not — in the absence of good cause — exceed three days.
Defendant opposed the government's motion for continuance, arguing the government was not entitled to a detention hearing under the circumstances presented. The Court ultimately took a recess to allow the parties to conduct research on the issue of whether the government is entitled to a detention hearing in order to establish Defendant's dangerousness for purposes of pretrial detention. Upon reconvening after the recess, the parties submitted law, and in the government's case submitted additional argument, in support of their respective positions. Accordingly, the Court is now ready to rule on the issue.
The government initially argued that it was seeking detention — and was entitled to a hearing on the issue of detention — based solely on the its contention that Defendant was a danger to the community. After the recess, however, the government supplemented its argument by arguing it was entitled to a detention hearing based on the fact that the offense charged falls within the Act's definition of a "crime of violence."
The Bail Reform Act of 1984 (the "Act"), 18 U.S.C. § 3141 et seq., empowers a court to order a defendant's detention pending trial upon a determination 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. § 3142(e). By its very language, the Act demonstrates its favorable inclination toward pretrial release of federal criminal defendants. For example, the Act requires the court order release on personal recognizance or on unsecured appearance bond (subject to the requirement that the person not commit a crime while on release) "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community[.]" 18 U.S.C. § 3142(b).
Notably, if the court cannot find that such unconditional release will reasonably assure appearance as required or guard against danger to the community, then release shall be ordered upon "the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community," including, but not limited to, conditions specifically listed within the statute. 18 U.S.C. § 3142(c)(1)(B).
Unlike orders of release, detention may only be ordered by the court following a hearing. 18 U.S.C. § 3142(e) and (f). The government's right to a detention hearing, however, carefully has been circumscribed by Congress:
• Detention hearing. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of such person as required and the safety of any other person and the community —
• upon motion of the attorney for the Government, in a case that involves —
(A) a crime of violence;
• an offense for which the maximum sentence is life imprisonment or death;
• an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.); or
• any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State or local offenses that would have been offenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise to Federal jurisdiction had existed, or a combination of such offenses; or
• Upon motion of the attorney for the Government or upon the judicial officer's own motion, in a case that involves —
• a serious risk that such person will flee; or
• a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.18 U.S.C. § 3142(f)(1) and (2).
As is evident from the face of the statute, dangerousness alone — as originally argued by the government — in the absence of serious risk of flight, serious danger of obstruction of justice or intimidation of witnesses, or charges involving one of the specifically enumerated offenses, does not provide a basis for detention and thus the government is not entitled to a detention hearing under such circumstances. See, e.g., United States v. Byrd, 969 F.2d 106, 109-110 (5th Cir. 1992) (although decided prior to 1996 amendment including 18 U.S.C. § 2251 et seq. as enumerated "crime of violence," court held threat to safety to other persons or community, standing alone, does not justify pretrial detention).
As argued by the government in its supplemental submission to the Court, however, Defendant in this case is charged with unlawful possession of visual depictions of minors involved in sexually explicit conduct in violation of Title 18 U.S.C. § 2252(a)(4)(B), an offense that falls within the Act's explicit definition of "crime of violence." See 18 U.S.C. § 3156(a)(4)(C) ("As used in sections 3141-3150 of this chapter . . . the term "crime of violence" means . . . any felony under chapter . . . 110 [ 18 U.S.C. § 2251 et seq.]."). Based on the government's supplemental argument, the Court finds the government is entitled to a hearing on the issue of Defendant's detention and therefore grants the Motion to continue such hearing to the extent that it shall be set on the Court's calendar at 3:00 p.m. on Wednesday, June 19, 2002.
IT IS SO ORDERED.