EFTA00191587

I 
Page 1 of 6 
Westlaw. 
611 F.Supp. 860 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
H 
U.S., Rourke 
D.C. a.,1985. 
United States District Court,E.D. 
Nortfolk Division.. 
UNITED STATES of America, Plaintiff, 
v. 
John ROURKE, et al., Defendants. 
Crim. No. 84-94-N. 
June 21, 1985. 
On defendant's motion for bail pending ap-
peal, the District Court, Doumar, J., held 
that: (1) defendant was not entitled to bail 
pending appeal; (2) Bail Reform Act of 
1984 is not an ex post facto law; and (3) no 
manifest injustice resulted in ordering de-
fendant to begin serving his sentence 
pending appeal. 
Motion denied. 
West Headnotes 
111 Bail 49 O=>44(1) 
49 Bail 
491I In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k44 Pending Appeal or Other 
Proceeding for Review 
49k44(1) k. In General; Con-
ditions. Most Cited Cases 
Absent showing by clear and convincing 
evidence that defendant was not likely to 
flee, defendant was not entitled to bail 
pending appeal. 18 U.S.C.A. § 3143(b). 
[2] Bail 49 C=39 
49 Bail 
49II In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
Page 1 
edy. Most Cited Cases 
Constitutional Law 92 c€7 .2810 
92 Constitutional Law 
92MII Ex Post Facto Prohibitions 
92XXIII(B) Particular Issues and 
Applications 
92k2809 Criminal Proceedings 
92k2810 k. In General. Most 
Cited Cases 
(Formerly 92k199) 
Bail Reform Act of 1984 [18 U.S.C.A. § 
3143] is not an ex post facto law. U.S.C.A. 
Const. Art. 1, § 9, cl. 3. 
[3] Bail 49 €=,44(1) 
49 Bail 
49II In Criminal Prosecutions 
49k41 Right to Release on Bail 
49k44 Pending Appeal or Other 
Proceeding for Review 
49k44(1) k. In General; Con-
ditions. Most Cited Cases 
No manifest injustice resulted in ordering 
defendant, who had been admitted to bail 
before effective date of Bail Reform Act of 
1984 [18 U.S.C.A. § 3143], to begin 
serving his sentence pending appeal, under 
rationale that even under Bail -Reform Act 
of 1966 release on bail was modifiable and 
never a vested right, or under interpretation 
that 1984 Act was prospective law effectu-
ating procedural change which fully ap-
plied to defendant upon his resentencing. 
*860 Tommy E. 
Robert E. Braden-
ham, H, Office o 
e 
S. Atty., E.D. Va., 
Walter E. Hoffman, U.S. Courthouse, Nor-
folk, Va., for plaintiff. 
Paul D. Brunton, Tulsa, Okl., Lloyd J. 
Parker, Jr., Portsmouth, Va., for defendant 
John Rourke. 
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EFTA00191667

611 F.Supp. 860 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
MEMORANDUM ORDER 
DOUMAR, District Judge. 
On March 14, 1985, the defendant, John 
Rourke, was convicted of 21 U.S.C. § 963 
(conspiracy to import cocaine) and 21 
U.S.C. § 952(a) (importation of about 691 
pounds of cocaine). Following the jury ver-
dict of guilty and an evidentiary hearing, 
the Court ordered that Rourke, an accom-
plished pilot and the aviation consultant to 
a drug nng, be detained. ending sentencing 
under 18 U.S.C. § 3143 a) of the Bail *861 
Reform Act of 1984. 
e Court now de-
clines to modify that judgment for the reas-
ons which follow. 
Following the preparation of a pre-sentence 
report, the Court sentenced Rourke on May 
3, 1985 to concurrent imprisonment terms 
of fourteen (14) years on both counts. 
Rourke now moves for bail pending appeal 
under 18 U.S.C. § 3143(b) as he remains 
incarcerated under the sentence imposed on 
May 3, 1985. Rourke argues that (1) the 
Bail Reform Act of 1984 is an ex post facto 
law as applied to him and (2) that the stat-
ute does not apply retroactively to a de-
fendant like Rourke admitted to bail prior 
to the Act's passage. 
I. 
Laying aside constitutional analysis and 
questions of retroactivity, the relevant 
subsections of the Bail Reform Act of 1984 
read as follows: 
§ 3143. Release or detention of a defend-
ant pending sentence or appeal. 
(a) 
RELEASE 
OR 
DETENTION 
PENDING SENTENCE.-The judicial of-
ficer shall order that a person who has been 
found guilty of an offense and who is wait-
ing imposition or execution of sentence, be 
Page 2 of 6 
Page 2 
detained, unless the judicial officer finds 
by clear and convincing evidence that the 
person is not likely to flee or pose a danger 
to the safety of any person or the com-
munity if released pursuant to section 
3142(b) or (c). If the judicial officer makes 
such a finding, he shall order the release of 
the person in accordance with the provi-
sions of section 3142(b) or (c). 
(b) 
RELEASE 
OR 
DETENTION 
PENDING APPEAL BY THE DEFEND-
ANT.-The judicial officer shall order that a 
person who has been found guilty of an of-
fense and sentenced to a term of imprison-
ment, and who has filed an appeal or a pe-
tition for a writ of certiorari, be detained, 
unless the judicial officer finds-
(1) by clear and convincing evidence that 
the person is not likely to flee or pose a 
danger to the safety of any other person or 
the community if released pursuant to sec-
tion 3142(6) or (c); and 
(2) that the appeal is not for purpose of 
delay and raises a substantial question of 
law or fact likely to result in reversal or an 
order for a new trial. 
If the judicial officer makes such findings, 
he shall order the release of the person in 
accordance with the provisions of section 
3142(b) or (c). 
18 U.S.C. § 3143. This new Act created 
significant revisions in standards and pro-
r
ures governing bail. See United States 
Williams, 753 F.2d 329, 332 (4th 
r.1985). 
Upon Rourke's conviction on March 14, 
1985, the Court ruled that Rourke would be 
detained under Section 3143 Subsection 
(a), the section relevant to defendants 
pending sentencing. The evidence adduced 
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611 F.Supp. 860 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
at trial and at a post-verdict evidentiary 
hearing led the Court to find that clear and 
convincing evidence of Mr. Rourke's return 
for sentencing was wholly lacking. Actu-
ally, much evidence to the contrary was re-
vealed. Rourke himself is a pilot who has 
maneuvered planes in and out of the United 
States at will and his family continues to 
own an aviation business. He was in poor 
financial condition. Rourke testified that he 
had received communications and threats 
of an undisclosed nature, from other fugit-
ive co-defendants involved in the smug-
gling venture. These continuing commu-
nications particularly troubled the Court. 
On April 17, 1985, the Fourth Circuit ruled 
that Rourke's appeal of his post-verdict but 
pre-sentence detention was "premature 
since the appellant has not yet be 
sen-
tenced." United States of America I gp John 
Rourke, No. 85-5101 (4th Cir. April 17, 
1985). 
Following his sentencing on May 3, 1985, 
Rourke renewed his motion in this Court 
for bail pending appeal to allow his release 
from detention at least until the Fourth 
Circuit acted. The motion is now brought 
under 18 U.S.C. § 3143(6) (Release or De-
tention Pending Appeal), whereas prior to 
*862 sentencing the relevant subsection 
was 
3143(a) 
(Release 
or 
Detention 
Pending Sentencing). 
Subsection (a) requires the Court to detain 
the defendant unless clear and convincing 
evidence shows that the defendant will not 
flee or pose a danger to safety of any other 
person or the community. The Court found 
such evidence lacking on March 14, 1985. 
Subsection (b), relevant after sentencing, 
places a greater burden upon the convicted 
and sentenced defendant. The defendant is 
detained unless the Court finds that both § 
Page 3 of 6 
Page 3 
3143(bX1) and (b)(2) are met. Clearly, if 
the burden of proof of either subsection is 
not met, the defendant is detained. 
[11 There have been numerous recent cir-
cuit courts of appeal decisions interpreting 
the appeal dale in § 3143(b)(2). See e.g., 
k
United States ■ Molt, 75 F.2d 1198 (7th 
Cir.1985); Um ed States 
Crabtree, 754 
F.2d 1200 
ith Cir.198 
(one judge); 
United States( 
Handy, 1 
F.2d 1279 (9th 
Or.1985); United States 
Giancola, 754 
F.2d 8
 Allitir.19 
); and United 
States 
753 F.2d 
19 (3rd 
Cir.198 . 
these decisions inter-
pret this subsection in a new and important 
way, these cases are irrelevant to the in-
stant determination. Here, the Court stands 
pat on its findings at the post-conviction, 
presentence heanng that there was no 
showing by clear and convincing evidence 
that the defendant was not likely to flee. 
The operative language of subsection 
3143(a) is identical to the language of sub-
section 3143(b)(1) regarding risk of flight. 
Hence, the Court need not further evaluate 
subsection 3143(b)(2) as Rourke desires, 
because he must meet the burdens of both 
subsections, not just one or the other. 
II. 
[2] Rourke claims that the Bail Reform Act 
of 1984 is an ex post facto law under Art-
icle I, sec. 9 of the Constitution. Until Oc-
tober 12, 1984, the relevant statutory rules 
regarding bail pending appeal were as fol-
lows: 
A person ... who has been convicted of an 
offense and is either awaiting sentence or 
sentence review under section 3576 of this 
title [18 USCS § 3576] or has filed an ap-
peal or a petition for a writ of certiorari, 
shall be treated in accordance with the pro-
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611 F.Supp. 860 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
visions of section 3146 [18 USCS § 3146] 
unless the court or judge has reason to be-
lieve that no one or more conditions of re-
lease will reasonably assure that the person 
will not flee or pose a danger to any other 
person or to the community. If such a risk 
of flight or danger is believed to exist, or if 
it appears that an appeal is frivolous or 
taken for delay, the person may be ordered 
detained.... 
18 U.S.C. § 3148 (repealed). As the Sev-
Ic
th Circuit stated recently in United States 
Molt, 758 F.2d 1198 (1985) (Posner, J.): 
T]he change in the standard for bail 
pending appeal is not an ex post facto law. 
Even though it may work to the disadvant-
age
p 
f 
of a defendant, a procedural clinge is 
not ex ostacto ',"citing Dobbert
Flor-
ida, 432 U.S. 282, 293, 97 S.Ct. 2290, 
2298, 53 L.Ed.2d 344 (1977); g  e e.g., 
United States ex rel Massarella 
Elrod, 
682 
F.2d 
688, 
689 
(7th 
rr.1982) 
(extending the statute of limitations); Dunn 
v. Maggio, 712 F.2d 998, 1001-02 (5th 
Cir.1983) (per curiam) (repealing pardon 
statute). It appears that the recent circuit 
decisions construing the Bail Reform Act 
of 1984 are in acc 
with the view, see, 
e.g. United States 
Crabtree, 754 F.2d 
1200, 1201-02 45 
• 1985) (one judge); 
United States I 
753 F.2d 19, 21 
(3rd Cir.1985). 
ecourt follows these 
cases and rejects the ex post facto claim. 
Rourke also claims that the Bail Reform 
Act of 1984 is a prospective law, inapplic-
able to those admitted to bail prior to its ef-
fective date on October 12, 1984. 
The Supreme Court has ruled that federal 
courts must apply the law in effect at the 
time it renders a decision, unless such a de-
Page 4 
cision would result in manifest injustice or 
where legislative history or statutory *8 
direction is to the contrary. Bradley
Richmond School Board, 416 U.S. 69 , 
711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 4 
(1974); See National Posters, Inc.
N. L. R. B., 
720 F.2d 
1358, 1363 (4 
Cir.1983). The Court here addresses the 
Congressional intent and the issue of 
"manifest injustice". 
Rourke was admitted to bail in the amount 
of 
Twenty-Five 
Thousand 
Dollars 
($25,000.00) in the Northern District of 
Oklahoma on July 30, 1984. The Bail Re-
form Act of 1966 was then in effect. He 
was free on bail at the effective date of the 
Bail Reform Act of 1984, yet the govern-
ment made no attempt to seek his deten-
tion under the new statute's standards. 
However, after the jury returned a guilty 
verdict at his third trial, the government 
moved for his immediate detention. Under 
the new Act, 18 U.S.C. § 3143(b), the 
Court ordered Rourke's detention for the 
many reasons revealed in the transcript of 
the post-verdict detention hearing held on 
March 14, 1985. 
This Court reads 18 U.S.C. § 3143(b) as 
speaking in terms of conviction as the trig-
gering event, i.e., "a person ... found guilty 
... and sentenced to a term of imprisonment 
... who has filed an appeal ... [isj detained, 
unless...." Rourke's conviction occurred on 
March 14, 1985 and his sentencing was on 
May 3, 1985. Upon sentencing, the Court 
must review the defendant's status under 
the criteria of 3143(b). A defendant's con-
viction and a finding of guilty by a jury is a 
markedly different status from presumed 
innocence and release on bail prior thereto. 
The statute recognizes the different status. 
The defendant in United States' Zannino, 
761 F.2d 52 (1st Cir.1985), was admitted 
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EFTA00191670

611 F.Supp. 860 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
to bail before the Act's effective date. 
However, after its effective date, and be-
fore trial, the government moved for his 
detention under the "dangerous" defendant 
provisions of the new Act. See18 U.S.C. § 
3143(a). The district Court affirmed the 
U.S. Magistrate, who refused to revoke bail 
under the Bail Reform Act of 1984, and the 
First Circuit reversed. 
[3] The First Circuit in Zannino noted that 
even under the prior Bail Reform Act of 
1966, bail terms were "subject to review 
when changed circumstances require that 
the release be reappraised." Zannino, 
supra, at 55. The Court cited 18 U.S.C. § 
3146(e), repealed by18 U.S.C. § 3142(c), 
which reads in part: 
A judicial officer ordering the release of a 
person on any condition specified in this 
section may at any time amend his order to 
impose additional or different conditions of 
release. 
Id. Although Rourke is a sentenced and 
convicted defendant unlike Zannino, who 
was a pre-trial defendant, Rourke was 
equally subject to the repealed subsection 
above by virtue of repealed § 3148, which 
states that those "awaiting ... sentence re-
view ... shall be treated in accordance with 
the provisions of section 3146 unless [there 
exists] a risk of flight or danger is believed 
to exist, or if it appears that an appeal is 
frivolous or taken for delay...." The Zan-
nino court went on to state: 
Thus the release on bail allowed under the 
1966 Act was not an absolute grant; de-
fendants were given notice that a change in 
conditions or terms could bring about the 
revocation of the release. That statute, fur-
thermore, created no expectation that con-
ditions would not change. 
What has actually occurred with the pas-
Page 5 of 6 
Page 5 
sage of the pretrial detention provision 
may be considered a statutorily mandated 
change in those conditions.... We hold that 
defendants released under the 1966 Bail 
Act must show their continued eligibility 
for bail by meeting the newly imposed con-
ditions if this issue is affirmatively raised 
by the Government. 
Zannino, supra, at 55-56. It is plain that 
even under the prior Bail Reform Act of 
1966 release on bail was modifiable and 
never a vested right; hence, Rourke would 
not profit from its applicability. 
*864 Under the rationale of Zannino, or 
under an interpretation that the Bail Re-
form Act of 1984 is a prospective law ef-
fectuating a procedural change which fully 
applied to Rourke upon his sentencing, the 
Court holds that no manifest injustice res-
ults in ordering Rourke to begin serving his 
sentence pending appeal. There is no indic-
ation of any kind in the legislative history 
of the Bail Reform Act of 1984 that Con-
gress intended it to apply to certain classes 
of defendants and not to others, nor of the 
Act's retroactivity or prospectivity. Fur-
thermore, since the Act had an obvious im-
pact on pretrial detainees and post-
conviction defendants, any limitation on its 
applicability would have been expressed by 
Congress. See generally Zannino, supra, at 
56-57 
l
e Court recognizes that in United States 
Mitchell, 
600 
F.Supp. 
164 
.D.Ca1.1985) Judge Patel held that the 
Bail Reform Act of 1984 was inapplicable 
to defendants admitted to bail under the 
prior, repealed Bail Reform Act of 1966. 
an
This Court is unable to discover 
 other 
reported 
decision 
to 
date 
flowing 
Mitchell. Indeed, in United States 
Allen, 
605 F.Supp. 864 (W.D.Pa.1985), Judge 
Diamond rejected an "ex post facto law" 
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• 611 F.Supp. 860 
, • 
611 F.Supp. 860 
(Cite as: 611 F.Supp. 860) 
challenge and a "retroactivity" attack on 
the Bail Reform Act of 1984, by pre-trial 
detainees alleged to have committed crimes 
prior to the Act's passage. In another case, 
the First Circuit Court of Appeals rejected 
the "retroactivity" argument with respect 
to one charged before the new Act was ef-
fective and who tought pre-trial release. 
See United States 
Angiulo, 755 F.2d 969, 
973-74 (1st Cir.19 ). 
The Court therefore holds that the Bail Re-
form Act of 1984 is not an ex post facto 
law as applied to Rourke; that the Act is in-
tended to apply to pending criminal matters 
such as the mstant case and that a convic-
tion by a jury is a substantial change in 
status of the defendant. Rourke shall re-
main incarcerated pending appeal. 
IT IS SO ORDERED. 
D.C. 1
.,1985. 
U.S. 
Rourke 
611 .Supp. 860 
END OF DOCUMENT 
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EFTA00191672

U.S. v. GAVIRIA 
667 
Chou1123 Fad 667 (11th Cir. 1987) 
sarial role has long been well established. 
We agree with the district court that peti-
tioner's present claim is merely a variation 
of law that was well established at the time 
of the 1983 proceedings. The ends of jus-
tice can provide no exception in this case to 
the application of the abuse of the writ 
doctrine. The trial attorney could not pre-
vent Ritter from testifying. Ritter's testi-
mony—which admitted all of the relevant 
facts, evidenced no remorse, affirmatively 
sought the death penalty, and threatened 
harm to the jurors should they fail to re-
turn a death sentence—would have under-
mined any defense which the attorney 
might have presented. Under these cir-
cumstances, we are confident that the 
"ends of justice" concept does not warrant 
an exception to the abuse doctrine. 
III. Conclusion 
Although we GRANT the petition to pro-
ceed in forma pauperis, since both claims 
raised by petitioner are barred by the 
abuse of the writ doctrine, and since this 
issue would not be debatable among jurists 
of reason, we conclude the petitioner's ap-
plication for a certificate of probable cause 
should be DENIED. 
Accordingly, petitioner's emergency mo-
tion for a stay of execution is DENIED. 
UNITED STATES of America, 
Plaintiff-Appellee, 
v. 
Jorge Enrique GAVIRIA and Jose Elkin 
Echeverry, Defendants-Appellants. 
No. 87-6517. 
United States Court of Appeals, 
Eleventh Circuit. 
Sept. 3, 1987. 
United States District Court for the South-
ern District of Florida, No. 87-303-CR-
LCN, Lenore Carrero Nesbitt, J., affirmed, 
and defendants took further appeal. The 
Court of Appeals, Hatchett, Circuit Judge, 
held that (1) Government could proceed at 
pretrial detention hearing by way of prof-
fer of evidence; (2) defendants' right to call 
adverse witnesses was conditional; and (3) 
defendants were not entitled to de novo 
hearing before district court. 
Affirmed. 
1. Criminal Law 4=D1158(1) 
Court of Appeals applies plenary stan-
dard of review in considering appeals under 
Bail Reform Act, but purely factual find-
ings of district court remain subject to 
clearly erroneous review standard. 18 U.S. 
C.A. § 3141 et seq. 
2. Bail O249(3) 
At pretrial detention hearing, Govern-
ment as well as defense may proceed by 
proffering evidence, subject to discretion of 
judicial officer presiding at detention hear-
ing. 18 U.S.C.A. § 1341 et seq. 
3. Bail 4:242, 49(5) 
Defendant in pretrial detention hearing 
has only conditional right to call adverse 
witnesses; judicial officer presiding at de-
tention hearing is vested with discretion 
whether to allow defense counsel to call 
adverse witness with or without initial 
proffer of expected benefit of witness' tes-
timony. 18 U.S.C.A. § 1341 et seq. 
4. Bail a=049(5) 
Narcotics defendants were not entitled 
to de novo hearing to fully review magis-
trate's pretrial detention order which was 
based on proffers of evidence, where order 
was affirmed after reviewing Govern-
ment's and defendants' memoranda of law 
and transcript of proceedings before magis-
trate. 18 U.S.C.A. § 1342(e). 
Milton Hirsch, Miami, Fla., for Gaviria. 
Narcotics defendants appealed magic- 
Samuel J. Rabin, Jr., Miami, Fla., for 
trace's order of pretrial detention. The 
Echeverry. 
EFTA00191673

668 
828 FEDERAL REPORTER, 2d SERIES 
Leon B. Kellner, U.S. Atty., Miami, Fla., 
for plaintiff-appellee. 
Appeal from the United States District 
Court for the Southern District of Florida. 
Before RONEY, Chief Judge, FAY 
and HATCHET?, Circuit Judges. 
HATCHET?, Circuit Judge: 
Jorge Enrique Gaviria and Jose Elkin 
Echeverry appeal the decision of the dis-
trict court imposing pretrial detention pur-
suant to 18 U.S.C. § 3142(e). We affirm.' 
FACTS 
On April 30, 1987, Jorge Enrique Gaviria 
and Jose Elkin Echeverry were arrested 
and charged with several Title 21 narcotics 
offenses. The government requested tem-
porary detention of Gaviria and Echeverry 
pursuant to 18 U.S.C. § 3142(d) after deter-
mining that they were in the United States 
illegally. 
On May 6, 1987, a United States Magis-
trate conducted a pretrial detention hearing 
pursuant to 18 U.S.C. § 3142(f) and ordered 
pretrial detention of Gaviria and Echever-
ry' 
The magistrate based the pretrial de-
tention order on risk of flight and dangers 
posed to the community as authorized by 
18 U.S.C. § 9142(e). Gaviria and Echever-
ry requested a review of the magistrate's 
order and a de novo hearing before the 
district court, alleging that (1) the magis-
trate erroneously permitted the govern-
I. This matter came to the court as a "Motion for 
Bail Pending Trial." We noted that 18 U.S.C. 
§ 3145 provides for an appeal from a pretrial 
detention order. Under our rules and operating 
procedures. a single judge may determine a mo. 
tion for bail pending appeal, but a panel must 
determine an appeal pursuant to 18 US.C. 
§ 3145. 
2. Title 18 US.C. § 3142(f) provides, in pertinent 
part, that: 
The judicial officer shall hold a hearing to 
determine whether any condition or combina-
tion of conditions set forth in subsection (c) 
of this section will reasonably assure the ap-
pearance of the person as required and the 
safety of any other person and the communi. 
ment to proceed by proffering evidence at 
the pretrial detention hearing; (2) defense 
counsel were not permitted to call as a 
witness the government's case agent, who 
was present at the detention hearing; and 
(3) Gaviria and Echeverry were interviewed 
by immigration agents while in custody 
without notice to their defense counsel. 
The district court, without a de novo 
hearing, affirmed the magistrate's order of 
pretrial detention noting that the govern-
ment had met its burden under the Bail 
Reform Act. 
Gaviria and Echeverry urge this court to 
reverse the district court's order affirming 
their pretrial detention. They allege that 
(1) the magistrate erred in allowing the 
government to proceed by proffer, (2) de-
fense counsel were erroneously prevented 
from calling the government's case agent 
as a witness; and (3) the district court 
erred in failing to conduct a de now review 
of the pretrial detention proceedings' 
DISCUSSION 
(1) We note that this circuit has 
adopted the plenary standard of review in 
considering appeals under the Bail Reform 
Act. United States v. Hurled°, 779 F.2d 
1467, 1470-73 (11th Cir.1986). Neverthe-
less, the purely factual findings of the dis-
trict court remain subject to the clearly 
erroneous standard. Surfed°, 779 F.2d at 
1472. 
At the hearing, the person has the right to 
be represented by counsel and, if financially 
unable to obtain adequate representation, to 
have counsel appointed. The person shall be 
afforded an opportunity to testify, to present 
witnesses, to cross-examine witnesses who ap-
pear at the hearing, and to present informs• 
don by proffer or otherwise. 
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 per. 
son 
3. Gaviria and Echeverry have not raised before 
this court their contention that various state-
menu made to agents of the US. Border Patrol 
were improperly introduced at the detention 
hearing. 
EFTA00191674

U.S. v. GAVIRIA 
669 
Cite am US F.2d 667 111th Clr. 1987) 
I. 
Gaviria and Echeverry contend that the 
magistrate committed error by allowing the 
government to proceed by proffer at the 
pretrial detention hearing and by improper• 
ly precluding defense counsel from calling 
as a witness the government's case agent 
who was present at the detention hearing. 
The district court, citing a decision of the 
Third Circuit, United States v. Delker, 757 
F.2d 1390 (3d Cir.I985), stated that "the 
magistrate did not err in allowing the 
government to proceed by proffer during 
the pretrial detention hearing. Nor did the 
magistrate err in the defendants' request 
to call the case agent as a witness on their 
clients' behalf under section 3142(gX2) of 
the Bail Reform Act." We agree. 
Although this circuit has not expressly 
addressed the issue of whether the govern-
ment at a pretrial detention hearing may 
proceed solely by proffer, the court in 
Delker stated that 
the 'procedural requirements for the pre-
trial detention hearing set forth in sec-
tion 3142(0 are based on those of the 
District of Columbia statute which were 
held to meet constitutional due process 
requirements in United States v. Ed-
wards,' 430 A.2d 1321 (D.C.App.1981) (en 
bane), cert. denied, 455 U.S. 1022, 102 
S.Ct. 1721, 72 L.Ed.2d 141 (1982). S.Rep. 
No. 225, 98th Cong. at 1st Sees. at 22 
(1983), reprinted in 1984 U.S. Code 
Cong. & Adm.News at 25 (Supp. 9A). 
Delker, 757 F.2d at 1396. In Edwards, the 
District of Columbia Court of Appeals held 
that "the information presented to the judi-
cial officer by either the government or 
the defense may be by proffer. . . ." Ed-
wards, 430 A.2d at 1334. In Edwards, the 
court continued by stating that 
The legislative history of the statute 
confirms Congress' intent that the infor-
mation upon which the judicial officer 
makes his findings need not be sworn 
testimony, and that the hearing is not 
designed to afford defendants a dis-
covery device. Thus, in providing that 
the finding of substantial probability is 
to be based upon information presented 
'by proffer or otherwise,' the House re-
port anticipates 'that, as is the present 
practice under the Bail Reform Act, . . . 
the use of sworn testimony will be the 
exception and not the rule. . ..' [Bjail 
hearings under the Bail Reform Act, 
which frequently result in detention of 
the accused, proceed primarily by way of 
proffers. They are not formal trials re-
quiring strict adherence to technical 
rules of evidence. If the court is dissat-
isfied with the nature of the proffer, it 
can always, within its discretion, insist 
on direct testimony. 
But discretion 
should be left to the court without impos-
ing on it the burden of limiting admissi-
bility to that it would permit a jury to 
hear. 
Edwards, 430 A.2d at 1334 (citation omit-
ted) (original emphasis). Additionally, the 
United States Supreme Court recently held, 
in United States v. Salerno and Cafaro, 
— U.S. -, 
107 S.Ct. 2095, 95 L.Ed.2d 
697 (1987), that under the Bail Reform Act 
of 1984, "Congress hoped to 'give the 
i
courts adequate 
thority to make release 
decisions that gi 
appropriate recognition 
to the danger a 
rson may pose to others 
if released.'" Salerno, 107 S.Ct. at 2098 
(citing S.Rep. No. 98-225 at 3). 
(2] In light of the legislative history 
and the relevant case law relating to the 
Bail Reform Act of 1984, we reject Gavi-
ria's and Echeverry's contention that the 
magistrate erred in allowing the govern-
ment to proceed at the pretrial detention 
hearing by way of proffer. We hold that 
the government as well as the defense may 
proceed by proffering evidence subject to 
the discretion of the judicial officer presid-
ing at the detention hearing. 
DJ Gaviria and Echeverry also allege 
error because the magistrate refused de-
fense counsels' request to call the govern-
ment case agent, who was present at the 
hearing, as a witness. We note that 18 
U.S.C. § 3142(f) specifically provides that a 
defendant may testify, present witnesses, 
and cross-examine witnesses who appear at 
the detention hearing. The court in Ed-
wards held, however, that: 
The legislative history does not discuss 
the scope of cross-examination permitted 
EFTA00191675

670 
828 FEDERAL REPORTER, 2d SERIES 
of witnesses who are called by the 
government. Section 1322(0(4) gives the 
accused the right 'to present witnesses in 
his own behalf,' but the House report 
states that the accused has only a condi-
tional right to call adverse witnesses: 
He may not, of course, call witnesses 
who ordinarily would be expected to tes-
tify for the government at trial, unless 
he can proffer to the court in reason-
able detail how he expects their testimo-
ny to negate substantial probability. 
Edwards, 430 A.2d at 1884 (original empha-
sis). We agree that the defendant in a 
pretrial detention hearing has only a condi-
tional right to call adverse witnesses. We, 
however, do not adopt the procedural 
guideline under Edwards requiring the de-
fendant to initially proffer to the court in 
detail how an adverse witness's testimony 
is expected to negate substantial probabili-
ty as a prerequisite to calling such witness. 
The legislative history compels a finding 
that the judicial officer presiding at the 
detention hearing is vested with the discre-
tion whether to allow defense counsel to 
call an adverse witness with or without an 
initial proffer of the expected benefit of the 
witness's testimony. 
Moreover, as the 
court in Edwards noted, "[t]he related trial 
right of compulsory process, as provided by 
the sixth amendment, guarantees that the 
defendant may compel the attendance of 
witnesses in his favor." Edwards, 430 
A.2d at 1338 (emphasis added). 
H. 
(41 Gaviria and Echeverry next contend 
that the district court erred in failing to 
conduct a de novo hearing to fully review 
the magistrate's detention order which was 
based merely on proffers of evidence. The 
district court's order, however, expressly 
states that it affirmed the magistrate's or-
der after reviewing "the Government's and 
Defendants' Memorandum of Law and the 
transcript of the proceedings before the 
Magistrate, in accordance with U.S. v. Hur-
tado, 779 F.2d 1467 (11th Cir.1985)." In 
Hurtado, we held that de novo review re-
quires the court to exercise independent 
consideration of all facts properly before it 
and to include written findings of fact and 
a written statement of the reasons for the 
detention. Hurtado, 779 F.2d at 1480-81. 
We find that the district court's order in 
this case complies with the requirements 
under Hurtado, and we affirm the district 
court's denial of Gaviria's and Echeverry's 
request for a de novo hearing because the 
district court properly afforded de novo 
review of the magistrate's detention order. 
Gaviria and Echeverry also contend that 
the pretrial detention statute was unconsti-
tutionally applied in this case. This claim 
is not persuasive. For the above-stated 
reasons, we hold that the application of 
section 3142 at the pretrial detention hear 
ing in this case was wholly constitutional 
and procedurally correct. 
Accordingly, we affirm the decision of 
the district court. 
AFFIRMED 
David W. TROEDEL, 
Petitioner-Appellee, 
Cross-Appellant, 
U 
Richard DI:GOER, Secretary, Florida 
Department of Corrections, 
Respondent-Appellant, Cross-Appellee. 
No. 86-6880. 
United States Court of Appeals, 
Eleventh Circuit. 
Sept 4, 1987. 
Richard E. Doran, Asst. Atty. Gen., 
Dept. of Legal Affairs, Miami, Fla., Peggy 
A. Quince, Dept. of Legal Affairs, Tampa, 
Fla., for respondent-appellant, cross-appel-
lee. 
Capital Collateral Representative, Mark 
Evan Olive, Tallahassee, Fla., Steven H. 
Malone, Sp. Appointed Asst. Represents-
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Page 1 of 13 
westjaw. 
755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
C U.S. A Angiulo 
C.A. ass.,1985. 
United States Court of Appeals,First Cir-
cuit. 
UNITED STATES of America, Appellee, 
v. 
Gennaro J. ANGIULO, Defendant, Appel-
lant. 
No. 84-1745. 
Heard Jan. 10, 1985. 
Decided Feb. 25, 1985. 
An accused sought release from pretrial 
detention. The United States District Court 
for the District of Massachusetts, David S. 
Nelson, J., applying the Bail Reform Act of 
1984, ordered that accused remain in cus-
tody. Accused appealed on ground that the 
Bail Reform Act did not apply to one like 
him whom Government had charged before 
Act took effect. The Court of Appeals, 
Breyer, Circuit Judge, held that standards 
of the Bail Reform Act were applicable to 
one who was incarcerated and seeking re-
lease when Act became law. 
Affirmed. 
West Headnotes 
(11 Bail 49 C=39 
49 Bail 
49II In Criminal Prosecutions 
49k39 k. Nature and Scope of Rem-
edy. Most Cited Cases 
Standards of the Bail Reform Act were ap-
plicable to one who was incarcerated and 
seeking release when Act became law. 18 
U.S.C.A. § 3141 et seq. 
[2J Bail 49 0=49(3.1) 
Page 1 
49 Bail 
4911 In Criminal Prosecutions 
49k49 Proceedings to Admit to Bail 
49k49(3) Evidence 
49k49(3.1) k. In 
General. 
Most Cited Cases 
(Formerly 49k49(3)) 
District court could rely on evidence ob-
tained by electronic surveillance, legality 
of which accused challenged, in consider-
ing whether to grant bail under Bail Re-
form Act. 18 U.S.C.A. § 3141 et seq. 
131 Bail 49 €=49(3.1) 
49 Bail 
49II In Criminal Prosecutions 
49k49 Proceedings to Admit to Bail 
49k49(3) Evidence 
49k49(3.1) 
k. In 
General. 
Most Cited Cases 
(Formerly 49k49(3)) 
Materials under seal offered legally suffi-
cient basis for district court to conclude un-
der the Bail Reform Act that no condition 
or combination of conditions imposed on 
release of accused would reasonably assure 
safety of any other person and the com-
munity. 18 U.S.C.A. §§ 3141 et seq., 
3142(e). 
*969 James L. Sultan, Boston, Mass., with 
whom Joseph T. Travaline, Burlington, 
Mass., was on brief, for defendant, appel-
lant. 
Diane M. Kottmyer, Boston, Mass., with 
whom Ernest S. Dinisco, Jane E. Serene, 
Sp. Attys., William F. Weld, U.S. Atty. and 
Jeremiah T. O'Sullivan, Sp. Atty., Boston, 
Mass., were on brief, for appellee. 
Before BREYER, ALDRICH and TOR-
RUELLA, Circuit Judges. 
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755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
BREYER, Circuit Judge. 
The district court, applying the Bail Re-
form Act of 1984, found that the release of 
Gennaro Anguilo from pretrial detention 
would put at risk the "safety" of the com-
munity, and it ordered that he remain in 
custody. Anguilo appeals, on the ground 
that the new Bail Reform Act does not ap-
ply to one like him whom the government 
had charged before the new Act took ef-
fect. Since we do not agree with this claim, 
since Anguilo makes no significant consti-
tutional challenge to the new statute on this 
appeal, and since we find that the district 
court's order has sufficient evidentiary sup-
port, we affirm the district court's decision. 
I 
The basic procedural facts are the follow-
ing. On September 19, 1983, a grand jury 
charged appellant with several serious fed-
eral crimes. On September 20, the govern-
ment brought appellant before a magistrate, 
who ordered him held without bail lest he 
flee the jurisdiction-a decision that the dis-
trict court affirmed. In early January, 1984, 
this court upheld the lawfulness of appel-
lant's pretnal confinement, finding the 
evidence of risk of flight sufficient to make 
this a "rare case of extreme and unusual 
l e
circumstances that justifies pretrial 
ten-
tion without bail." United States 
An-
guilo, No. 83-1965 (1st ir. Jan. 5, 984), 
quoting United States 
Abrahams, 575 
F.2d 3, 8 (1st Cir.), cer. *970 denied,439 
U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 
(1978). 
During 1984 appellant first asked the ma-
gistrate and then twice asked the district 
court to reconsider his circumstances. See 
Bail Reform Act of 1966, 18 U.S.C. former 
§§ 3146(d) and 3147(a). On October 9, 
1984, the district court wrote that it was 
Page 2 
"prepared to order" that appellant be re-
leased under conditions "tantamount to 
house arrest"; and, it asked the government 
to suggest appropriate safeguards. In re-
Tonse, the government noted that the new 
Bail Reform Act had just become law (on 
October 12, 1984); it asked the court to 
continue appellant's detention under the 
new Act's "dangerousness" provisions. On 
October 19, the court ordered appellant's 
continued detention. Subsequently, in a 
memorandum of October 23, the court 
wrote that its 
stated intention in its prior decision to re-
lease the defendant on bail is withdrawn, 
and the government's motion that the de-
fendant be detained pending trial as re-
quired by the Bail Reform Act of 1984 is 
allowed. 
Anguilo appeals from the district court's 
decision. 
II 
[1] The basic legal issue in this case is 
whether the standards of the new Bail Re-
form Act, 18 U.S.C. § 3141et seq., apply to 
one who, like appellant, was incarcerated 
(and seeking release) on October 12, 1984, 
when the new Act became law. The Act it-
self does not say. It speaks of an "effective 
date" of "October 12, 1984," but it is silent 
as to whether, or to what extent, it applies 
to those charged before that date. Its lan-
guage neither precludes nor mandates such 
application. Similarly, the parties have not 
been able to point to anything in the legis-
lative history of the Act that suggests Con-
gress explicitly considered the question. 
We have found, however, two sources of 
authority that point towards a proper legal 
answer. 
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755 F.2d 969 
755 F.2d 969 
(ate as: 755 F.2d 969) 
First, courts often turn to various "canons" 
of construction to interpret statutes that are 
silent or ambiguous. See generally, e.g., C. 
Sands, Statutes and Statutory Construction 
(4th ed. 1984); R. Dickerson, The Inter-
pretation and Application of Statutes 
(1975). One such canon, relevant here, in-
terprets new statutes and other new law to 
reflect an intent to apply to cases in the 
process of being decided at the time the 
new law takes effect. This canon, or prin-
ciple, is reflected in Chief Justice Mar-
shall's well known statement that, 
if subsequent to the judgment and before 
the decision of the appellate court, a law 
intervenes and positively changes the rule 
which governs, the law must be obeyed.... 
United States t Schooner Peggy, 5 U.S. (1 
Cranch) 102, 
9, 2 L.Ed. 49 (1801). This 
principle is embodied in the Supreme 
Courts holding that a new law applies to a 
case in progress unless applying it "would 
result in manifest injustice or there is stat-
utory direction or illative history to the 
contrary." Bradley 
Richmond School 
Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 
2016, 40 L.Ed.2 
476 (1974); New Eng-
land Power Co. 
United States, 693 F.2d 
239, 244 (1st Cir.982). The case before us 
is one that was pending on October 12. The 
district court had not reached a final de-
cision about appellant's application for re-
lease. Since nothing in the new Bail Re-
form Act or its legislative history says that 
the Act does not apply, Bradley requires us 
to look to the "justice" or "injustice" of the 
new Act's application. 
We do not believe it "unjust" to apply the 
new Act to those, like appellant, who were 
in custody on October 12, 1984, because 
those then in custody are unlikely to have 
relied to their detriment upon the continued 
Page 3 
application of prior law. In this respect 
there is an important difference between 
persons in custody on October 12 and those 
free on bail. The latter might claim that 
they have relied upon continued freedom in 
making plans for their trial defense, or in 
making other important plans; and the 
threat of incarceration might disrupt those 
plans. The former, however, could not have 
reasonably relied *971 upon the freedom 
promised them under prior law, for they 
were committed to custody under that law. 
At best theirs was a hope for freedom that 
changing circumstances might, or might 
not, have let them realize. 
Without a showing of likely significant and 
justified reliance those in custody fall out-
side both Bradley 's exception and the 
scope of other canons that disfavor "retro-
active" application 
new statutes. See, 
e.g., United States 
Security Industrial 
Bank, 459 U.S. 70,
 103 S.Ct. 
7, 412, 
74 L.Ed.2d 235 (1982); Greene 
United 
States, 376 U.S. 149, 160, 84 
. 615, 
F
1, 11 L.Ed.2d 576 (1964); United States 
Heth, 7 U.S. (3 Cranch) 399, 413, 2 
.Ed. 479 (1806). These canons basically 
seek to protect the interests of those who 
have reasonably relied upon the legal status 
quo. See 2 C. Sands, Statutes and Statutory 
Construction §§ 41.04, 41.05 (4th ed. 
1973). An inability to find such likely reli-
ance by those incarcerated indicates that 
application of the new law is not unjust, 
and that Congress therefore likely intended 
the new law to apply, at least to pending 
proceedings involving incarcerated per-
sons. 
Applying a canon like Bradley 's to discern 
congressional intent is not simply to in-
dulge in a legal fiction. The Bradley rule 
(reflecting the Schooner Peggy principle) is 
well established. Legislative draftsmen and 
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755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
their legal advisors often refer to well es-
tablished interpretive principles when pre-
paring statutory language. A court decision 
consistent with such a principle is more 
likely. than its opposite to reflect what con-
gressional staffs, advisors, witnesses, in-
terest groups, and legislators themselves 
believe will occur despite a legislative his-
tory that is silent. (In fact, silence may re-
flect an absence of controversy, not con-
gressional indifference to the result.) At the 
same time consistent judicial adherence to 
interpretive principles eases the task of 
drafting legislation by pointing to likely fu-
ture interpretive results without requiring 
statutory language on every point. These 
practical 
institutional considerations as 
well as legal theory recommend adherence 
to Bradley's interpretive rule here. 
Second, a consideration of the new Act's 
basic purposes suggests that legislators, 
with those purposes in mind, would likely 
favor the Act's application to those in cus-
tody. CI Mayburg I Secretary of Health 
and Human Services, 740 F.2d 100, 104-07 
(1st Cir.1984). The Act has at least two ob-
jectives. On the one hand, it seeks to pre-
vent the "arbitrary use of high money bail 
as a way to assure a defendant's incarcera-
tion." S.Re(i. No. 225, 98th Cong., 1st 
Sess. 9-10 1983) U.S.Code Cong. & Ad-
min.News 184 pp. 1, 11, 12 ("It has been 
suggested that pretrial detention under" 
the former Bail Act "is often the result of 
intentional imposition of excessively strin-
gent release conditions, and in particular 
high money bonds"). See Hearings before 
the Subcommittee on the Constitution of 
the Senate Comm. on the Judiciary, 97th 
Cong., 1st Sess. 100, 181, 216-17 (1982). It 
therefore states explicitly what the prior 
statute said implicitly, that a "judicial of-
ficer may not impose a financial condition 
that results in the pretrial detention of any 
Page 4 
person." 18 U.S.C. § 3142(c). (See Ap-
pendix, infra, for text of relevant portions 
of the Act.) On the other hand, the new Act 
broadens the courts' authority to detain 
"dangerous" persons prior to trial. It re-
quires magistrates and judges to focus on 
the question of danger directly, and allows 
them, after a hearing, to keep in custody 
not only defendants who pose a serious risk 
of flight, but also those who seriously 
threaten the "safety" of others or of "the 
community." 18 U.S.C. § 3142(e). Thus 
the statute seeks to assure release of the de-
fendant who is "safe but poor" while al-
lowing detention of a dangerous defendant 
financially capable of posting a bond. 
Given these purposes, it is difficult to see 
why Congress would not want the new law 
to apply to those incarcerated at the time it 
was enacted. To apply the new Act's spe-
cific language to the "safe but poor" de-
fendant furthers Congress's statutory ob-
jective, benefits the defendant, and de-
prives the government of nothing to which 
it was entitled under the old law, cf. former 
*972 18 U.S.C. § 3146(a), or the new. To 
apply it (in what must be an unusual situ-
ation) to a "dangerous" person previously 
held as a "flight risk" also furthers Con-
gress's statutory objectives by keeping 
those persons in custody. Although applic-
ation of the new statute works to the disad-
vantage of any such defendant who other-
wise would be released, nothing in the new 
Act or its history suggests congressional 
solicitude for this category of defendant. 
Indeed, the only possible offsetting consid-
eration to repeated congressional declara-
tions that such defendants should be kept in 
custody, see S.Rep., supra, at 10-12, would 
be 
some 
special 
consideration 
of 
"fairness." But, as we have already said, 
we can find nothing unfair about applying 
the new Act to one already in custody and 
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' 
755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
to a judicial proceeding already in pro-
gress. 
In sum, principles of statutory construction 
resting upon fairness and consideration of 
the statute's purposes both suggest that 
Congress intended the statute to apply in 
cases like the one before us. 
We next consider four arguments to the 
contrary. First, Anguilo points to § 3142(0 
of the new Act. That section says that the 
magistrate or judge will decide whether to 
detain or to release a defendant after a 
"detention hearing" which 
shall be held immediately upon the per-
son's first appearance before the judicial 
officer unless that person or the attorney 
for the government seeks a continuance 
[for a maximum of five days and two 
days respectively]. 
Anguilo points out that this detention 
hearing 
could 
not 
have 
been 
held 
"immediately" in the case of a person first 
detained before the provision became law 
(October 12, 1984). He concludes from this 
fact that the new law was not meant to ap-
ply to such a person. 
This conclusion, however, rests too much 
upon too little. The object of § 3142(0's 
quoted language is to guarantee a speedy 
bail determination, to prevent the magis-
trate or judge from ordering the defendant 
temporarily detained (seel 8 U.S.C. § 
3142(d)), and then holding the key "deten-
tion" hearing at some much later time. 
S.Rep., supra, at 21-22. The language does 
not say that if, for some special reason, one 
cannot hold the key hearing "immediately," 
the entire Act no longer applies. Nor does 
it forbid application of the Act's standards 
at other hearings, say those at which a ma-
gistrate reconsiders previously ordered in-
Page 5 
carceration. 
We concede that the way in which § 
3142(c) is to be applied seems slightly con-
fusing because of an odd procedural omis-
sion in the new Act. Congress apparently 
has not enacted an explicit procedural 
counterpart to § 3146(d) of the former 
1966 Act, which provided for magistrate or 
district court reconsideration of a deten-
tion order. As far as we can tell, § 3142(0 
of the new Act governs the magistrate's (or 
judge's) initial decision whether to detain 
or to release a defendant on conditions. 
The last sentence of § 3142(c) then allows 
the magistrate or judge "at any time" to 
"amend 
a release order. But, the Act 
nowhere says how one detained can seek a 
new determination in light of changed cir-
cumstances. (Section 3145, at first blush, 
may seem to provide for such review; but 
in fact it does not, for it governs only what 
are in essence appeals, from magistrate to 
district court and from district court to 
court of appeals). After reviewing the le-
gislative history, we have concluded that 
this procedural omission was inadvertent, 
for Congress nowhere expresses any intent 
to deny a person in custody the right to ask 
for reconsideration. In the absence of an 
express statutory reconsideration provision, 
the magistrate and district court nonethe-
less possess inherent power to reconsider 
previous 
detention 
orders-an 
inherent 
power to modify (or revoke) previous bail 
orders that the 1966 Act's statutory provi-
sions "merely embodied." C. Wright, Fed-
eral Practice and rocedure: Criminal 2d 
§ 769. See Stack 
Boyle, 342 U.S. 1, I1, 
72 S.Ct. 1, 6, 96 L. . 1 ( 51) (opinion of 
Jackson, J.); Fernandez 
United States, 
81 S.Ct. 642,
 5 L. .2d 683 (1961) 
(opinion 
of 
Circuit 
Justice 
Harlan) 
("District courts have authority as an incid-
ent*973 of their inherent powers ... to re-
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755 F.2d 969 
755 F.2d 969 
(Cite as: 755 F.2d 969) 
yoke bail'); United States !Black 543 
F.2d 35, 37 (7th Cir.1976) IT]he same 
statute which explicitly empowers the dis-
trict court to impose conditions upon re-
lease pending appeal, implicitly empowers 
the court to make such adjustments in those 
conditions as circumstances may necessit-
ate."). We conclude that the proceeding un-
der review is properly characterized from a 
procedural perspective as such a reconsid-
eration by the district court of its prior de-
tention order. Regardless, this procedural 
problem does not help appellant, for the 
question remains what standards Congress 
intended a magistrate or court to apply at a 
reconsideration hearing. And for the reas-
ons previously stated, we believe that Con-
gress wanted (or would have wanted) the 
new Act's standards applied to one then be-
ing held in custody. 
Second, the parties point to three recent 
cases deciding similar issues. T 
govern-
ment notes that in United States 
Payden, 
598 F.Supp. 1388 (S.D.N.Y.198 , the dis-
trict court upheld application o the new 
law to a defendant arraigned before Octo-
ber 12. Appellant notes that in two other 
cases the courts denied application of the 
new Act to persons arraigned before its en-
acting. In the first of these, however, the 
Eleventh Circuit refused per curiam to ap-
ply the new law to persons whose "release 
was ordered by the district court before the 
F
w law became effective." United States 
Fernandez-Toledo, 749 F.2d 703 (11th 
ir.1985) (per curiam). The court ruled the 
new statute inapplicable because, in its 
view, defendants "right to bail had already 
vested." It treated the appellants as if they 
were persons free on bail before October 
12. In doing so, it treated them as outside 
the rationale of this opinion. See pp. 
970-971, supra. And, we therefore do not 
consider it as conflicting. 
Page 6 of 13 
Page 6 
In United States )1 Mitchell, 600 F.Supp. 
164 (D.Ca1.1985 , a California district 
court held the new Act inapplicable in cir-
cumstances much like this one. The Cali-
fornia court, however, based its decision 
upon the reliance interests of those re-
leased on bail before October 12. The court 
did not distinguish between the class of re-
leased persons and the class of persons in 
custody. It seems to us, however, that the 
fact of custody (and the consequent small 
likelihood of significant reliance) makes an 
important 
and 
meaningful 
difference. 
Moreover, the "in custody/at liberty" 
t
dis-
tinction is simple a 
easy to administer. 
Cf United States 
Mitchell, supra, at 
168-169. Thus, we lieve we can best ef-
fectuate likely congressional intent by ap-
plying the new Act's standards to those de-
tained at the time of its enactment. 
Third, appellant claims that the district 
court is applying new law "retroactively," 
and he invokes a series of cases that, he 
says, 
rbid "retroactivity." See United 
( 
States 
Security Industrial Bank 459 U.S. 
70, 79, 03 S.Ct 
07, 412, 74 L.Ed.2d 235 
(1982); Greene 
United States, 376 U.S. 
576 (1964); United States 
Heth, 7 U.S. 
149, 160, 84 S. t. 615, 61 , 11 L.Ed.2d 
Addison 
Bulk Food Carriers, Inc., 489 
(3 Cramp 399, 413, 2 L. . 479 (1806); 
F.2d 104 , 104243 (1st Cir.1974). "Retro-
activity," however, is a relative, not an ab-
solute, notion. The law before us is not ret-
roactive in the sense of punishing or re-
warding conduct 
reviously carried out, 
see, e.g., Weaver 
Graham, 450 U.S. 24, 
28, 101 S.Ct. 
963, 67 L.Ed.2d 17 
(1981); Calder 
Bull, 3 U.S. (3 Dall.) 
385, 390, 1 L. . 648 (1978). On the other 
hand, it is retroactive in the sense that it 
applies to one already charged when the 
law was enacted. In these circumstances, 
the word "retroactive" does not itself an-
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755 F.2d 969 
(Cite as: 755 F.2d 969) 
swer the applicability question. Rather, one 
must look beneath the word to the func-
tional considerations that it embodies. And, 
doing so, for reasons stated at pp. 970-971, 
leads us to conclude that the new Act ap-
plies here. 
Fourth, appellant argues that his case ought 
to be considered like that of a person re-
leased, not a person in custody, for, he 
says, the district court had ordered him re-
leased before October 12. As a practical 
matter, however, appellant had not been re-
leased. As a formal matter, the court had 
made no final decision to release him. 
Rather, the new Act became law and was 
*974 brought to the attention of the district 
court while it was in the midst of deciding 
what to do with appellant's motion for re-
lease. The court had not ordered appellant's 
release. On October 9, the court said it was 
"prepared" to do so; it later characterized 
its decision as "tentative"; and it spoke in 
its October 23 memorandum of its previous 
"intention." On January 9, 1985, the court 
characterized its decision as one made in 
ongoin motion for modific-
ation.
i
response to an 
United States 
Zannino, Cr. No. 
i
83-235-N, slip op. at 
n. 1 (D.Mass. Jan. 
9, 1985). Moreover, a release order by the 
district court would have been appealable 
under § 3145, and therefore not "final" in 
this additional sense. Thus, both formal 
and practical considerations require us to 
treat this case as one involving the applica-
tion of the new Bail Act's standards to one 
presently in custody. And for the reasons 
stated, the Act's new standards apply. 
III 
[2] Appellant argues that, even if the new 
Act applies, the government has not proved 
by the "clear and convincing" evidence 
that the Act requires that he poses a danger 
Page 7 of 13 
Page 7 
to "the safety of any other person and the 
community." 18 U.S.C. § 3142(£). He first 
claims that the district court could not rely 
on the evidence obtained by electronic sur-
veillance, the legality of which he chal-
lenges. We previously wrote, however, in 
In re Globe Newspaper, 729 F.2d 47, 54 
(1st Cir.1984), a case in which both de-
fendant and the government were parties, 
that the provisions of federal law "allow 
the disclosure of [information obtained 
through electronic surveillance] to the 
court conducting ... bail hearings," at least 
until a court has decided that the material 
was not obtained legally. Otherwise, the 
challenge of a defendant to lawfully ob-
tained materials might prove sufficient to 
keep .highly relevant information from the 
judicial officer or to delay the initial bail 
hearing, contrary to the "immediacy" re-
quirement of § 3142(f). 
[3] Appellant also argues that the materials 
on which the district court relied (including 
those obtained from electronic surveil-
lance) are stale or irrelevant or conclusory 
and, in any event, even when taken togeth-
er are insufficient for the district court's 
conclusion. Those materials are under seal. 
We have examined them, and we conclude 
that they offer a legally sufficient basis for 
the district court to conclude that "no con-
dition 
or 
combination 
of 
conditions 
[imposed on release] will reasonably assure 
... the safety of any other person and the 
community." 18 U.S.C. § 3142(e). 
Finally, appellant argues that the district 
court held that he was as dangerous inside 
b
ail as outside; hence there is no rational 
asis for holding him. Given the fact that 
common sense strongly suggests that de-
tention 
must 
have 
some 
effect 
on 
"danger," we do not believe the district 
court meant with absolute literalness that 
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the risks appellant poses to others in the 
community are precisely the same whether 
or not he is detained. In any event, we are 
unwilling to assume it meant this in the ab-
sence of a showing in the record that the 
court focused directly on the issue that ap-
pellant's counsel now raises. 
Again we note that appellant does not now 
challenge the basic constitutionality of the 
new Act's "dangerousness" provisions. On 
the basis of our resolution of the issues he 
has presented to us on this appeal, we be-
lieve the district court's decision is legally 
correct, and that decision is 
Affirmed. 
APPENDIX 
18 U.S.C. §§ 3142 , 3145 
"§ 3142 . Release or detention of a de-
fendant pending trial 
"(a) In General.-Upon the appearance be-
fore a judicial officer of a person charged 
with an offense, the judicial officer shall is-
sue an order that, pending trial, the person 
be-
"(1) released on his personal recogni-
zance or upon execution of an unsecured 
*975 appearance bond, pursuant to the 
provisions of subsection (b); 
"(2) released on a condition or combin-
ation of conditions pursuant to the provi-
sions of subsection (c); 
"(3) temporarily detained to permit re-
vocation of conditional release, deporta-
tion, or exclusion pursuant to the provi-
sions of subsection (d); or 
Page 8 
"(4) detained pursuant to the provisions 
of subsection (e). 
"(b) Release on Personal Recognizance or 
Unsecured Appearance Bond.-The judicial 
officer shall order the pretrial release of the 
person on his personal recognizance, or 
upon execution of an unsecured appearance 
bond in an amount specified by the court, 
subject to the condition that the person not 
commit a Federal, State, or local crime dur-
ing the period of his release, unless the ju-
dicial officer determines that such release 
will not reasonably assure the appearance 
of the person as required or will endanger 
the safety of any other person or the com-
munity. 
"(c) Release on Conditions.-If the judicial 
officer determines that the release de-
scribed in subsection (b) will not reason-
ably assure the appearance of the person as 
required or will endanger the safety of any 
other person or the community, he shall or-
der the pretrial release of the person-
"(1) subject to the condition that the 
person not commit a Federal, State, or 
local crime during the period of release, 
and 
"(2) subject to the least restrictive fur-
ther condition, or combination of condi-
tions, that he determines will reasonably 
assure the appearance of the person as re-
quired and the safety of any other person 
and the community, which may include 
the condition that the person-
"(A) remain in the custody of a desig-
nated person, who agrees to supervise 
him and to report any violation of a re-
lease condition to the court, if the des-
ignated person is able reasonably to as-
sure the judicial officer that the person 
will appear as required and will not 
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pose a danger to the safety of any other 
person or the community; 
"(B) maintain employment, or, if un-
employed, actively seek employment; 
"(C) maintain or commence an educa-
tional program; 
"(D) abide by specified restrictions 
on his personal associations, place of 
abode, or travel; 
"(E) avoid all contact with an alleged 
victim of the crime and with a potential 
witness who may testify concerning the 
offense; 
"(F) report on a regular basis to a des-
ignated law enforcement agency, pretri-
al services agency, or other agency; 
"(G) comply with a specified curfew; 
"(H) refrain from possessing a fire-
arm, destructive device, or other dan-
gerous weapon; 
"(I) refrain from excessive use of al-
cohol, or any use of a narcotic drug or 
other controlled substance, as defined 
in section 102 of the Controlled Sub-
stances Act (21 U.S.C. 802), without a 
prescription by a licensed medical prac-
titioner; 
"(J) undergo available medical or 
psychiatric treatment including treat-
ment for drug or alcohol dependency, 
and remain in a specified institution if 
required for that purpose; 
"(K) execute an agreement to forfeit 
upon failing to appear as required, such 
designated property, including money, 
as is reasonably necessary to assure the 
appearance of the person as required, 
Page 9 of 13 
Page 9 
and post with the court such indicia of 
ownership of the property or such per-
centage of the money as the judicial of-
ficer may specify; 
"(L) execute a bail bond with solvent 
sureties in such amount as is reasonably 
necessary to assure the appearance of 
the person as required; 
"(M) return to custody for specified 
hours following release for employ-
ment, schooling, or other limited pur-
poses; and 
*976 "(N) satisfy any other condition 
that is reasonably necessary to assure 
the appearance of the person as re-
quired and to assure the safety of any 
other person and the community. 
The judicial officer may not impose a fin-
ancial condition that results in the pretrial 
detention of the person. The judicial of-
ficer may at any time amend his order to 
impose additional or different conditions of 
release. 
"(d) Temporary Detention To Permit Re-
vocation of Conditional Release, Deporta-
tion, or Exclusion.-If the judicial officer 
determines that-
"(1) the person-
"(A) is, and was at the time the of-
fense was committed, on-
"(i) release pending trial for a felony 
under Federal, State, or local law; 
"(ii) release pending imposition or 
execution of sentence, appeal of sen-
tence or conviction, or completion of 
sentence, for any offense under Federal, 
State, or local law; or 
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"(iii) probation or parole for any of-
fense under Federal, State, or local law; 
or 
"(B) is not a citizen of the United 
States or lawfully admitted for perman-
ent residence, as defined in section 
101(0(20) of the Immigration and Na-
tionality Act (8 U.S.C. 1101(a)(20)); and 
"(2) the person may flee or pose a 
danger to any other person or the com-
munity; 
he shall order the detention of the person, 
for a period of not more than ten days, ex-
cluding Saturdays, Sundays, and holidays, 
and direct the attorney for the Government 
to notify the appropriate court, probation or 
parole official, or State or local law en-
forcement official, or the appropriate offi-
cial of the Immigration and Naturalization 
Service. If the official fails or declines to 
take the person into custody during that 
period, the person shall be treated in ac-
cordance with the other provisions of this 
section, notwithstanding the applicability 
of other provisions of law governing re-
lease pending trial or deportation or exclu-
sion proceedings. If temporary detention is 
sought under paragraph (1)(B), the person 
has the burden of proving to the court that 
he is a citizen of the United States or is 
lawfully admitted for permanent residence. 
"(e) Detention.-If, after a hearing pursuant 
to the provisions of subsection (0, the judi-
cial officer finds that no condition or com-
bination of conditions will reasonably as-
sure the appearance of the person as re-
quired and the safety of any other person 
and the community, he shall order the de-
tention of the person prior to trial. In a 
case described in (f)(1), a rebuttable pre-
sumption arises that no condition or coin-
Page 10 
bination of conditions will reasonably as-
sure the safety of any other person and the 
community if the judge finds that-
"(1) the person has been convicted of a 
Federal offense that is described in sub-
section (0(1), or of a State or local of-
fense that would have been an offense 
described in section (0(1) if a circum-
stance giving rise to Federal jurisdiction 
had existed; 
"(2) the offense described in paragraph 
(1) was committed while the person was 
on release pending trial for a Federal, 
State, or local offense; and 
"(3) a period of not more than five 
years has elapsed since the date of con-
viction, or the release of the person from 
imprisonment, for the offense described 
in paragraph (1), whichever is later. 
Subject to rebuttal by the person, it shall be 
presumed that no condition or combina-
tion of conditions will reasonably assure 
the appearance of the person as required 
and the safety of the community if the judi-
cial officer finds that there is probable 
cause to believe that the person committed 
an offense for which a maximum term of 
imprisonment of ten years or more is pre-
scnbed in the Controlled Substances Act 
(21 U.S.C. 801 et sea)., the Controlled 
Substances Import and Export Act (21 
U.S.C. 951 et seq.), section 1 of the Act of 
September 15, 1980 (21 U.S.C. 955a), or 
an offense under section 924(c) title 18 of 
the United States Code. 
*977 "(0 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 
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