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United States v. Delker

March 18, 1985


On Appeal from the United States District Court for the Eastern District of Pennsylvania. (Crim. No. 840441-01-02).

Adams and Weis, Circuit Judges, and Harris District Judge.*fn*

Author: Adams


ADAMS, Circuit Judge

This appeal presents a multitude of issues concerning the construction and validity of the pretrial detention provisions 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. §§ 3141-50).*fn1 Because we believe that the district court did not err in determining that appellant should be detained on the basis that he posed a danger to the community, we will affirm its detention order.


Appellant Robert Delker was indicted along with five co-defendants in October 1984. He was charged with participating in a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962 (1982), conducting a pattern of racketeering that included the acceptance of illegal payments by employees of a labor union, 29 U.S.C. § 186 (1982), interference with interstate commerce by extortion, 18 U.S.C. § 1951 (1982), and theft by extortion, 18 Pa. Cons. Stat. Ann. § 3923(a)(7)(1983). He was also charged with a substantive violation of the Hobbs Act, 18 U.S.C. § 1951, resulting from the beating of painting contractors and the use of death threats against them in an attempt to extort money, three substantive violations of the Taft-Hartley Act, 29 U.S.C. § 286(b) (1982), and three violations of the federal income tax laws, 26 U.S.C. § 7206(1) (1982).

The charges arose out of appellant's involvement in the affairs of Painter's Local Union No. 1269. The indictment alleges that Delker, an employee of the union, was part of a group that during the course of an eight-year conspiracy illegally controlled local 1269 through the use of violence, threats, and physical and economic intimidation. the conspiracy came to dominate all painting work performed by union members in the Lehigh Valley, Pennsylvania area. Delker allegedly extorted money from painting contractors in exchange for labor peace, and extorted money from members of Local 1269 in exchange for the opportunity to work.

At the time the indictment was filed, the government moved for a pretrial detention hearing with respect to appellant and two co-defendants. On November 1, 1984, Delker surrendered himself to the authorities, and was promptly brought before a federal magistrate for a bail hearing. At the conclusion of the hearing, the magistrate denied the government's motion for pretrial detention pursuant to § 3142(d) of the new Bail Reform Act. He concluded that pretrial detention was not required, that bail of $250,000 was adequate, and that a series of conditions insulating the appellant from certain persons would guarantee the safety of the community. Those conditions included prohibiting Delker from any contact with alleged victims, potential witnesses, and the union, from which he was to take a leave of absence.

On November 5, 1984, the government filed a motion with the district court pursuant to § 3145(a)(1) of the new Act seeking review of the magistrate's release order. On November 16, 1984, a pretrial detention hearing was held before a district judge, who heard evidence concerning the detention issue. The court entertained argument from both government and defense counsel on November 29, 1984, and issued its decision on December 10, 1984.

Judge Huyett held that the government had met its burden "of demonstrating by clear and convincing evidence that Delker, if released on bail, would pose a threat to members of the community especially potential witnesses in this case." Delker appeals from the order of the district court detaining him pending trial.*fn2


Appellant raises numerous issues that will be discussed under three general categories. First, Delker challenges the method and scope of review employed by the district court regarding the magistrate's release order. Second, appellant claims he was denied statutory rights and constitutional due process by the manner in which the district court conducted the evidentiary hearing. Finally, he asserts that the facts of his case do not demonstrate clearly and convincingly that he poses a danger to the community.


On October 12, 1984, the new Bail Reform Act took effect, making several substantial changes in the basic provisions of the previous Bail Reform Act of 1966. In a major change the new Act permits the detention of a defendant pending trial when, after a hearing, a judicial officer finds that no condition or combination of conditions will reasonably assure the safety of other persons or the community. BRA § 3142(e). The legislative history of the Act suggests that "there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group of offenders that the courts must be given the power to deny release pending trial." S. Rep. No. 225, 98th Cong., 1st Sess. 6-7 (1983), reprinted in 1984 U.S. Code Cong. & Ad. News 1, 9 (Supp. 9A).

The legislative history also specifies that the concept of a defendant's dangerousness as used in the Act is to "be given a broader construction than merely danger of harm involving physical violence." Id. at 12-13 (1983), reprinted in 1984 U.S. Code Cong. & Ad. News at 15 (Supp. 9A). (In so doing, the Senate Report cites to the opinion of this Court in United States v. Provenzano, 605 F.2d 85 (3d Cir. 1979).) The Congress was apparently concerned with the safety not only "of a particular identifiable individual, perhaps a victim or witness," but also of the community as a whole. Id.

Under the new statute, if a person is ordered released by a magistrate, the government may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. A defendant may similarly seek review of a detention order. The court of original jurisdiction is directed to adjudicate the motion for review promptly, BRA § 3145(a)(1), and either party is entitled to prompt appellate review of the order of the district court. Id. § 3145(c).


If a case involves "a crime of violence" or other specified serious offenses, and the government moves for pretrial detention, a "judicial officer shall hold a hearing to determine whether any condition . . . will reasonably assure . . . the safety of any other person and the community." BRA § 3142(f)(1)(A). At the hearing, the "person has the right to be represented by counsel," and the Act guarantees that he "shall be afforded an opportunity to testify, to present witnesses on his own behalf, or cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." Id. § 3142(f). The statute stipulates that the "rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." Id.

A detention order must include findings of fact and a statement providing the reasons for detention, and to the extent practicable should direct that the person be confined in a facility separate from persons awaiting or serving sentences. Id. § 3142(i). A release order must include a written statement setting forth any conditions to which the release is subject and advising the defendant of the consequences of violating any of the release conditions. Id. § 3142(h).

II ...

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