The opinion of the court was delivered by: CONABOY
We consider here a motion to revoke the order of United States Magistrate Robert C. Lear detaining Defendant Cocco pending his trial on criminal charges.
For the reasons outlined below, the motion will be denied.
The Defendant has been indicted and charged with violating Title 18 U.S.C. § 2252(a)(2), in that he did knowingly receive, through the U.S. Mails, an illustrated advertisement containing the visual depiction of minors engaging in sexually explicit conduct.
On March 1, 1985, Magistrate Lear held a detention hearing and found the Defendant presents a clear danger to the safety of persons in the community; that the Defendant constitutes a serious risk of attempting to obstruct justice by threatening to injure or intimidate prospective witnesses; and that no combination of conditions -- short of confinement -- can insure the safety of both potential witnesses and the community at large. As a result of these findings, the Defendant was ordered detained until trial and remains confined at the present time.
After the motion to revoke the detention order was filed, we issued a rule on the Government to show cause why this detention order should not be revoked and bail set. Pursuant to that rule both sides have filed briefs and provided the court with the transcript of the hearing before the magistrate, as well as the magistrate's detailed detention order.
The proceedings we are concerned with here are all pursuant to Chapter 207 of the Comprehensive Crime Control Act of 1984, (the Act) (18 U.S.C.A. § 3141, et seq.). One of the dramatic nuances of the Act is the provision for pretrial detention -- the basis of this motion. Section 3141 provides generally that a judicial officer (a magistrate) has the authority to detain or release a defendant pending judicial proceedings. Section 3142(e) provides the reasoning for ordering detention and § 3142(f) sets the parameters of the detention hearing. Section 3145 provides for review of the magistrate's detention order by the district court. This section provides that the court may revoke or amend any such order.
The entire concept of pretrial detention is extremely controversial and invokes significant dispute as to its impact on very basic constitutional and legal rights such as the presumption of innocence,
the burden of proof in criminal cases, the prohibition against self incrimination, and various other evidentiary and procedural problems.
Traditionally, anyone accused of a crime is considered innocent until proven guilty at trial -- and thus -- with the exception of very specific instances -- entitled to remain free on bail unless and until convicted. Bail, however, is an often misunderstood concept, and this misunderstanding, coupled with a natural concern with repeat commission of crimes by those on bail, or probation, or parole, led to a growing demand for a change in the law that would allow for pretrial detention. This public clamor had much to do with the bail reform provisions of the new crime control act.
Closer to home, we have the benefit of a memorandum of Judge William Caldwell of our court on the role of the district court pursuant to the review section of the Act -- see U.S.A. v. Yeaple, 605 F. Supp. 85 (M.D. Pa. 1985). In Yeaple, Judge Caldwell noted the statute gave no guidance as to the scope of the court's review, but pointed out that a new hearing is not specifically required. He thus reviewed the hearing officer's (the magistrate) findings to determine if they were supported by competent evidence, and determined whether there was an abuse of discretion or an error of law. We are in accord with this review process.
Where the Government seeks to detain a defendant prior to trial, it must proceed under § 3142(e) of the Act. The Government must allege the existence of one or more circumstances, which in this case are (1) that the crime involved is one of violence; and (2) that there is a serious threat of intimidation or harm to potential witnesses. Upon such allegations § 3142(f) requires the judicial officer 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 . . ...