On Appeal from the United States District Court for the Western District of Pennsylvania, (D.C. Crim. Nos. 85-263, 85-253M).
Before: GIBBONS, HIGGINBOTHAM, and BECKER, Circuit Judges.
The United States appeals from an order of the district court reversing a magistrate's order that Howard Perry be held without bail pending disposition of a criminal complaint. The magistrate had jurisdiction to enter the detention order by virtue of 28 U.S.C.A. § 636(a)(2) (West Supp. 1985). The district court reviewed the order pursuant to 18 U.S.C.A. § 3145(b) (West 1985). We have appellate jurisdiction by virtue of 18 U.S.C.A. § 3145(c) (West 1985) and 28 U.S.C. § 1291 (1982). We reverse.
Proceedings in the District Court
On November 21, 1985 a criminal complaint, No. 85-253M, was filed charging Howard Perry and Gary Moore with conspiring to possess heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1982) and 21 U.S.C. § 846 (1982). The United States then moved pursuant to 18 U.S.C.A. § 3142(e) (West 1985) for pretrial detention of Perry on the ground that he was a danger to the community. Based on the evidence presented at a hearing the magistrate found that there was probable cause to believe that Perry committed the offense charged, for which a maximum term of ten years or more is prescribed. The magistrate also found that at the time of the events charged in the complaint Perry was on bail on a state indictment charging him with distributing narcotics and was under court supervision for conviction on gun charges in Illinois. Thus Perry fell within the provision that "a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community . . . ." 18 U.S.C.A. §§ 3142(e), 3142(f)(1)(C) (West 1985). The magistrate held that this presumption was not rebutted.*fn1
On November 27, 1985 Perry sought review by the district court, pursuant to 18 U.S.C.A. § 3145(b) (West 1985), of the magistrate's detention order. On December 5, 1985 the district court held a de novo detention hearing. During that hearing the district court stated that the only legitimate criterion for holding a defendant without bail was the likelihood of flight, a ground upon which the United States did not initially rely. According to the district court, the detention feature of the Bail Reform Act of 1984, Pub. L. No. 98-473, §§ 202-210, 98 Stat. 1976-87 (to be codified at 18 U.S.C. §§ 3062, 3141-3150), was facially unconstitutional, both substantively and procedurally. Thus the court declined to consider anything but Perry's likelihood of flight. When Perry testified that he would not flee, the court orally set bail at $100,000.
Meanwhile, on December 2, 1985, a grand jury in the Western District of Pennsylvania returned a ten-count indictment, No. 85-263, against Perry and others, charging them with conspiracy to distribute and possession with intent to distribute cocaine, marijuana, and oxycodone (percodan). The district judge learned of this indictment after the conclusion of the section 3145(b) hearing in No. 85-253M and determined to hold a detention hearing on the new charge. During this second hearing the judge reiterated his views about the unconstitutionality of the preventive detention features of the Bail Reform Act and again concluded that Perry was not likely to flee.
Although no formal order had yet been entered either in No. 85-253M or in No. 85-263, the United States moved for a stay of the decision to grant bail, which the district judge orally denied.
On December 6, 1985, the district judge filed a hand-written order covering both detention hearings.*fn2 Although the court had in both hearings opined that the preventive detention features of the Bail Reform Act are unconstitutional, transcript before the district court in No. 85-253 at 31-32, 43; transcript before the district court in No. 85-263 at 47-59, the order does not mention such a ground of decision, See United States v. Perry, Nos. 85-253M and 85-263 (W.D. Pa. Dec. 5, 1985) (order granting release on bail). Instead it contains a finding "that Howard Perry is not in any way a threat to the community or a threat to any individual or property situate in the Western District of Pennsylvania and is not a danger to anyone whatsoever." Id. Relying on this finding and the fact that the United States submitted no evidence of likelihood of flight, the court ordered Perry "released temporarily on his own recognizance for a period not to exceed five days for the purpose of posting a $50,000 bond for each of the two captioned charges." Id.
The United States appealed in both cases and moved before a panel of this court to stay the order granting release on bail. That panel granted a stay and expedited the appeal as required by 18 U.S.C.A. § 3145(c) (West 1985). After argument, held on January 16, 1986, the United States moved in this court to dismiss its appeal in No. 85-263 (Court of Appeals Docket No. 85-3671). We have considered Perry's opposition to that motion. Because that opposition does not demonstrate any prejudice from the dismissal, the motion will be granted. Thus our review is solely with respect to the order denying pretrial detention in No. 85-253M (Court of Appeals Docket No. 85-3680).
Because the order appealed from contains a finding that Perry is not a danger to the community, and thus appears to satisfy the criteria for release under the Bail Reform Act, the United States cannot prevail unless we may set that finding aside. The United States advances several reasons why we should do so. Perry, on the other hand, points out that even if we set aside the finding that he is not a danger to the community, the facial unconstitutionality of the preventive detention law is a separate ground for affirmance on which he relies and that we must address. We agree that unless we are prepared to affirm the release order on statutory grounds both the statutory and the constitutional issues must be considered.
Appellate review of a release or detention order is authorized by 18 U.S.C.A. § 3145(c) (West 1985). Neither this section nor any other provision of the Bail Reform Act specifies the scope of our review. In this circuit, however, it is now settled that the Court of Appeals must make an independent determination of a release or detention order. See, e.g., United States v. Coleman, 777 F.2d 888 (3d Cir. 1985) (pretrial release, government appeal); United States v. Strong, 775 F.2d 504 (3d Cir. 1985) (presentencing detention; defendant's appeal); United States v. Delker, 757 F.2d 1390 (3d Cir. 1985) (pretrial detention, defendant's appeal). That independent determination must be made with respect to the statutory criteria for detention or release. Obviously review of the legal questions presented by the claimed facial unconstitutionality of the preventive detention provision in the Bail Reform Act is also plenary.
A. The Detention Hearing Before the Magistrate
In the hearing before the magistrate in No. 85-253M the United States produced the complaint charging Perry with a violation of 21 U.S.C. § 841(a)(1) (1982) and 21 U.S.C. § 846 (1982). Appearing with counsel, Perry waived the reading of the complaint and pleaded not guilty. At that point the government moved for pretrial detention, asserting that Perry was a danger to the community. Perry's counsel asked that co-defendant Moore be produced, representing that he would exculpate Perry on the charge in the complaint. Informed by the magistrate that he could have Moore subpoenaed at Perry's expense, counsel declined to do so for reasons of expense.
The United States then produced Joseph Rotter, a special agent of the Drug Enforcement Administration who investigated the activities of Perry and Moore in the summer and fall of 1985. Rotter testified that he worked with Special Agent Daniel Williams in an undercover investigation, and that on August 29, 1985 Moore sold heroin to Williams. Perry's counsel objected to Rotter's testimony arguing, read generously, that his testimony was hearsay and that it offered the confrontation clause. Again counsel was advised of his opportunity to call, at his client's expense, any witness he desired. Rotter testified that on September 10 Williams paid Moore $2,300 in advance for a one-quarter ounce of heroin. Moore was followed from the site of the September 10 meeting to a dairy store, where he met Perry. After meeting Perry, Moore left the dairy store and using a coin operated telephone called a confidential informant to tell him that the $2,300 was paid and that the package would be delivered in an hour. At 8:55 P.M. Moore delivered to Williams a package the contents of which, then tested at a Drug Enforcement Administration laboratory, proved to be heroin. Rotter testified that similar transactions took place on October 15 and November 20, 1985, in which Williams paid Moore, Moore met Perry, and Moore shortly thereafter delivered heroin to Williams.
Rotter testified that after the November 20, 1985 transaction both Moore and Perry were arrested. A search, pursuant to a valid warrant, of Perry's residence produced $2,500 in currency that was identified by serial number to be part of the money used by Agent Williams to make the November 20 purchase. The balance, Rotter testified, was found on Moore's person when he was searched incident to his arrest.
Rotter also testified that he learned from Officer Benny Sledge that on July 18, 1985 the City of Pittsburgh Police Department conducted an investigation, arrested Perry, and searched his home, wherein cocaine, valium, and percodan were found. Perry's counsel objected on hearsay grounds, and asked the court to order the government to produce Office Sledge. He was informed that the court would not order the government to produce Office Sledge, but that Perry was free to subpoena him. As he had with Moore and Williams, defendant declined to make the expenditure. Over a hearsay objection Rotter testified that the drugs seized by the Pittsburgh Police Department were sent to the Allegheny Crime Lab and tested positive for cocaine and percodan.
Finally, Rotter testified, again over a hearsay objection, that an assistant state attorney in Waukegan, Illinois, informed him that Perry had pled guilty in Illinois to possession of a firearm, was placed on probation or court-ordered supervision until September of 1986, and was in violation of the conditions of his probation.
Perry's counsel stipulated that a Pennsylvania state charge was pending with respect to the July 18, 1985 arrest. He cross-examined Rotter at some length. In the course of that examination Rotter conceded that he had no evidence suggesting that Perry ...