On Appeal from the Order of the United States District Court for the Eastern District of Pennsylvania Reversing the Magistrate's Order of Pre-Trial Detention, Criminal Nos. 86-00451-01, 86-00451-07, 86-00451-08.
SEITZ, HIGGINBOTHAM and SLOVITER, Circuit Judges.
The government appeals from orders of the district court releasing from custody defendants Stephen Traitz, Jr., Mark Osborn, and Robert Medina on certain conditions or release imposed by the court. The governments contends that the release conditions are unsatisfactory and that no condition or combination of conditions will reasonably assure the safety of any other person or the community. We heard this appeal on an expedited basis.
Defendants Traitz, Osborn and Medina are among 19 defendants charged in a 61 count indictment with numerous offenses. All three defendants are charged with participation in the affairs of the Roofers Union through a pattern of racketeering and with conspiracy in violation of 18 U.S.C. § 1962; and collection of credit by extortionate means in violation of 18 U.S.C. § 894. Traitz and Medina are charged with mail fraud in violation of 18 U.S.C. § 1341. Traitz is charged as well with solicitation and acceptance of kickbacks to influence operation of an employee benefit plan, in violation of 18 U.S.C. § 1954; embezzlement of funds from an employee welfare benefit plan in violation of 18 U.S.C. § 664; bribery of a federal official in violation of 18 U.S.C. § 201; interstate travel in aid of racketeering in violation of 18 U.S.C. § 1952; and embezzlement of union funds in violation of 29 U.S.C. § 501(c). Osborn and Medina are also charged with interference with commerce by extortion in violation of 18 U.S.C. § 1951.
The government sought detention of the three defendants before trial pursuant to 18 U.S.C. § 3142. Following a consolidated detention hearing, a United States magistrate found that the defendants are charged, inter alia, with crimes of violence; that there is probable cause to find that each of the defendants are guilty of the crimes charged; that the evidence against Traitz, Medina and Osborn is substantial and incriminating; that tape recordings contain evidence that Traitz counseled and encouraged violence against roofing contractors and that Medina and Osborn actually committed intimidation and violence; that the tapes disclose repeated patterns of lawlessness and attempted obstruction of justice by intimidation; and that there is clear and convincing evidence that no condition or set of conditions will insure the safety of the community and the witnesses and protection of the witnesses in this case if these defendants were released.
Following an appeal to the district court, a hearing was held on November 3, 1986. The district court reversed the Magistrate's detention order and, in an order dated November 4, 1986, directed that the defendants be released before trial under various conditions. These conditions require that each defendant post monetary bail in the amount of 10% of $400,000 for Traitz and $100,000 for the other two; that each post the title to his home, and in the case of Traitz title as well to other real and personal property, to assure each defendant's appearance and to satisfy the remainder of his bail in the event he breaches any conditions set by the court; that defendants cease and desist all union activity directly or indirectly; that defendants remain at their respective homes subject to house arrest and report by telephone daily to the pretrial services officer; that defendants cease contact with all but family members, attorney and friends having no relation to the allegations in this case; that defendants surrender all firearms; and that defendants comply with any other conditions the court imposes. In addition, the court directed that Traitz agree to a 24 hour phone monitoring of his house phones, to wear a beeper device to disclose his whereabouts if requested by the government, and to surrender his passport.
The cases in which pretrial detention is authorized under the Bail Reform Act of 1984 are specified in 18 U.S.C. § 3142(f). See S. Rep. No. 225, 98th Cong., 2d Sess. 20, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3203. Here, the government alleges that the defendants have been charged with crimes of violence within 18 U.S.C. § 3142(f)(1)(A); that there is a serious risk that Traitz will obstruct and attempt to obstruct justice or intimidate witnesses, within the scope of 18 U.S.C. § 3142(f)(2)(B); and that Medina's prior offenses fall within 18 U.S.C. § 3142(f)(1)(D). Defendants do not appear to contest that this is the type of case in which pretrial detention could be ordered, and instead have challenged the government's contention that such detention is appropriate here.
Under the statute, pretrial detention can be ordered only when a judicial officer finds, after a hearing, "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e). The statute requires that in determining whether there are conditions or release that will reasonably assure such appearance ad safety, the judicial officer shall take into account the available information concerning (1) the nature and seriousness of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person and the community that would be posed by the person's release. See United States v. Coleman, 777 F.2d 888, 892 (3d Cir. 1985). See also 18 U.S.C. § 3142(g). In this case, the government does not contend that the defendants will flee. Thus, the focus is on the safety of the community.
In evaluating the nature and circumstances of the offense charged and the weight of the evidence, the district court found, inter alia, that the government has demonstrated "that the three defendants under detention use the Roofers' Union to squeeze money out of roofing contractors by violence and intimidation", and that "the tape recorded conversations demonstrate that the Roofers' Union has conducted its affairs through a pattern of violence." Although the court stated that it was not prejudging the claims of the defense that the violence was sued to achieve legitimate union objectives, it stated that the factual underpinnings of such a claim "on the present record appear weak."
With respect to the government's contention that these defendants would obstruct justice and intimidate witnesses, the court found that the evidence "demonstrates a clear intention to 'fix' state court judges" but that there was only a weak showing of intimidation or threats to witnesses, which arose out of a motor vehicle accident involving Medina that was unrelated to the union activities.
In considering the history and characteristics of the defendants, the court noted that Traitz and Osborn had never been convicted of any crime, and that Medina had twice been convicted of armed bank robbery.*fn1
Finally, in considering the nature and seriousness of the danger to any person or the community that would be posed by the defendants' release, the district court concluded that the removal of the defendants from union activities combined with the other conditions in its orders provide reasonable assurance that the pattern of violence against roofing contractors and others will cease, and provide reasonable assurances of the safety of witnesses and others. The court ...