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UNITED STATES v. HAZZARD

December 11, 1984

UNITED STATES OF AMERICA, PLAINTIFF,
v.
KEVIN SIDNEY HAZZARD, BYRON RANDOLPH AND KEVIN STEPHENS, DEFENDANTS.



The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

Defendant Kevin Sidney Hazzard has moved to revoke or amend an order entered by a United States magistrate on October 23, 1984 ordering his pretrial preventive detention pursuant to the Bail Reform Act of 1984 ("the Act"), 18 U.S.C. § 3141, et seq. Section 3145(b) of the Act provides that if a person is ordered detained by a magistrate he may file with the court having original jurisdiction of the offense a motion for revocation or amendment of the order. The Act requires that the motion shall be determined promptly.*fn1

Hazzard contends that the detention order should be reversed and reasonable bail set for one or more of the following reasons:

  (a) The detention order was entered pursuant to
      the provisions of a statute which, both on
      its face and as applied to Hazzard, deprives
      him of constitutional rights to bail, to the
      presumption of innocence, to due process of
      law, and to equal protection of the laws.
  (b) The detention order was entered without
      providing Hazzard with the discovery
      necessary to a meaningful exercise of his
      right to cross-examine, to confront
      witnesses, and to present evidence.
  (c) The hearing was inadequate because of the
      government's reliance on hearsay evidence and
      because of the limits placed on
      cross-examination.
  (d) To apply the Act in this case would violate
      the Ex Post Facto clause of the Constitution
      because the offense charged allegedly
      occurred on October 6, 1984 and the Act did
      not become law as part of the Comprehensive
      Crime Control Act of 1984 until October 12,
      1984.

I. Applicable Statutory Provisions

On October 12, 1984 the Bail Reform Act became law as Chapter II of the Comprehensive Crime Control Act of 1984. Because of new interrelated provisions pertaining to detention hearings, it is appropriate to set forth at the outset the parts of the Act which govern this proceeding:

"§ 3141. Release and detention authority generally

"(a) PENDING TRIAL. — A judicial officer who is authorized to order the arrest of a person pursuant to section 3041 of this title shall order that an arrested person who is brought before him be released or detained, pending judicial proceedings, pursuant to the provisions of this chapter.

"§ 3142. Release or detention of a defendant pending trial

"(a) IN GENERAL. — Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be —

    (4) detained pursuant to the provisions of
  subsection (e).

"(e) DETENTION. — If, after a hearing pursuant to the provisions of subsection (f), the judicial officer finds 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, he shall order the detention of the person prior to trial. . . . Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . an offense under section 924(c) of title 18 of the United States Code [possession of a firearm during the commission of a felony].

"(f) DETENTION HEARING. — The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) will reasonably assure the appearance of the person as required and the safety of any other person and the community in a case —

    (1) upon motion of the attorney for the
  Government, that involves —

(A) a crime of violence;

"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 hearing, the person has the right to be represented by counsel, and, if he is financially unable to obtain adequate representation, to have counsel appointed for him. The person shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing. The facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence. The person may be detained pending completion of the hearing.

"(g) FACTORS TO BE CONSIDERED. — The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information 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, including —
      (A) his character, physical and mental
    condition, family ties, employment, financial
    resources, length of residence in the
    community, community ties, past conduct,
    history relating to drug or alcohol abuse,
    criminal history, and record concerning
    appearance at court proceedings; and
      (B) whether, at the time of the current
    offense or arrest, he was on probation, on
    parole, or on other release pending trial,
    sentencing, appeal, or completion of sentence
    for an offense under Federal, State, or local
    law; and
    (4) the nature and seriousness of the danger to
  any person or the community that would be posed
  by the person's release.

"(i) CONTENTS OF DETENTION ORDER. — In a detention order issued pursuant to the provisions of subsection (e), the judicial officer shall —

    (1) include written findings of fact and a
  written statement of the reasons for the
  detention;
    (2) direct that the person be committed to the
  custody of the Attorney General for confinement
  in a corrections facility separate, to the extent
  practicable, from persons awaiting or serving
  sentences or being held in custody pending
  appeal;
    (3) direct that the person be afforded
  reasonable opportunity for private consultation
  with his counsel; and
    (4) direct that, on order of a court of the
  United States or on request of any attorney for
  the Government, the person in charge of the
  corrections facility in which the person is
  confined deliver the person to a United States
  marshal for the purpose of an appearance in
  connection with a court proceeding.

"The judicial officer may, by subsequent order, permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for ...


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