<|endoftext|> pretrial recidivism.
Id. at 23. In rejecting altogether the uncontroverted evidence of defendants' drug involvement, we find that the district court did not sufficiently consider legislative intent.
In sum, the district court found there was substantial evidence that the defendants have been involved in drug trafficking for many years, but, contrary to explicit legislative intent, discounted the fact that danger to other persons or the community is established when there is clear and convincing evidence that defendants would continue to be involved in narcotics if released on bail. They have already done so despite convictions and parole supervision. In light of defendants' criminal records established by direct proof, and not merely by hearsay, the court's finding was clearly 336*336 erroneous. Assuming that the district judge was within bounds in discounting all informant hearsay, the record, nevertheless, contains direct evidence that defendants pose a danger. In large measure it was not discussed by the district court. In the circumstances of the instant case, considered in the round, a result so arrived at is, in the applicable legal phraseology, "clearly erroneous."
REVERSED.
[1] Erselle Datcher was also indicted and released on a $25,000 unsecured bond. The government has not attacked Datcher's pretrial release.
[2] Hawkins previously was indicted in June 1984 for the same offenses. Charges were dropped in August 1984 when the government's key witness recanted his story. Apparently, that witness has now agreed to testify against Hawkins, and the indictment on December 3, 1984 was again returned by the grand jury.
[3] The maximum sentence for each defendant, if convicted of all the offenses charged in the four count indictment, would be in excess of ten years.
[4] References to 18 U.S.C. § 3141 et seq. will be to the newly amended version of the Bail Reform Act.
[5] 18 U.S.C. § 3142(g) provides, in pertinent part:
The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning —
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including —
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or on other release pending trial sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
[6] 18 U.S.C. § 3145(b) provides
If a person is ordered detained by a magistrate or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.
[7] Evidentiary proffers are approved by 18 U.S.C. § 3142(f). Counsel for Williams did proffer that the United States Parole Board had been approached, but had declined to revoke his parole. The parole officer assigned to Williams, however, recommended detention. Hawkins' counsel made no proffer of a factual nature electing instead to address legal aspects of his client's case.
[8] Although the district court's order was dated December 21, 1984, it was first presented to me on December 28, 1984. In any event, although it was evident that the findings were not filed until after the government had lodged its appeal, they were considered in ruling on the motion of Williams and Hawkins to quash the stay.
[9] Another statute had dealt with the special problem of cases involving defendants accused of homicide. See 18 U.S.C. § 3148 (1982) (repealed October 12, 1984).
[10] No challenge has been made to the finding that, if released on bail, both defendants would appear at trial. Nothing has been made of the parole status of Williams.
[11] 18 U.S.C. § 3145(c) provides:
An appeal from a release or detention order, or from a decision denying revocation or amendment