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United States v. Himler

filed: August 6, 1986.

UNITED STATES OF AMERICA
v.
HARRY HIMLER, JR., APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Cr. No. 86-118)

Author: Mansmann

Opinion OF THE COURT

Before: Gibbons, Stapleton and Mansmann, Circuit Judges.

MANSMANN, Circuit Judge.

In this appeal from a detention order entered by the district court, we must consider whether, under the Bail Reform Act of 1984, an accused taken into custody may be detained prior to trial based on danger to the community where the detention hearing was justified only by an alleged serious risk of flight pursuant to 18 U.S.C. § 3142(f)(2)(A).

The district court ordered that the defendant be detained prior to trial because of the danger of the defendant's recidivism in crimes involving the use of fraudulent identification. We hold that this is not the type of danger to the community which will support an order of detention under the Bail Reform Act of 1984. Because we also find that this record will not support a finding that no conditions of release will guarantee the defendant's appearance in court, we will reverse the order of the district court.

I.

On May 7, 1986, a criminal complaint was filed charging Harry Joseph Himler, Jr. with crimes involving the production of a false identification document, namely, an international driving permit. At the defendant's initial appearance the government requested a surety bond in the amount $25,000. Upon being informed that there was an outstanding Florida warrant for the defendant's arrest as well as a detainer lodged against him by the Pennsylvania Department of Probation and Parole, the magistrate ordered that the defendant be detained. Temporary detention under such circumstances is authorized by statute in order to give other officials time to take a defendant into custody. 18 U.S.C. § 3142(d) (Supp. II, 1985).

At a preliminary examination of May 14, 1986, the magistrate found probable cause to believe that the defendant had produced false identification while processing an application to replace allegedly lost travelers checks. The government moved for a detention hearing pursuant to 18 U.S.C. § 3142(f) asserting the risk that the defendant would flee.

Based on the evidence presented at the hearing on May 19, 1986, the magistrate found that in 1981 the defendant had been convicted of larceny in Ohio and had been released on two and one-half years probation. The magistrate also found that at the time of the offense currently charged the defendant was on probation from a conviction of multiple counts of possession of false identification. These findings, combined with evidence of the circumstances leading to the current charges, led the magistrate to conclude that the defendant's considerable experience in adopting a false identity posed serious risk of flight as well as the danger that he would continue to engage in similar criminal activity. Therefore, the magistrate ordered that the defendant be detained pending trial.

The defendant filed a motion for review of the detention order pursuant to 18 U.S.C. § 3145(b). At a de novo detentions hearing on June 3, 1986, the district court found that at the time of the alleged offense the defendant was on probation from convictions of grand theft in Ohio and of unlawful use of credit cards and unlawful possession of forged or counterfeited driver's licenses in Florida. The court also found that there was an outstanding arrest warrant for the defendant on charges of grand theft in Florida. These findings, together with evidence supporting the current charges, led the district court to conclude that the defendant's release on conditions would not assure the safety of the community. Unlike the magistrate, the district court made no finding regarding risk of flight.

The defendant appeals the detention order, arguing that the Bail Reform Act of 1984 does not authorize his detention based on the danger that he will continue to use false identification to defraud the community.

II.

The hallmark of the Bail Reform Act of 1984 is its requirement that an arrested person be admitted to bail only under conditions which will "reasonably assure both the appearance of the person as required and the safety of any other person and ...


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