IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4602
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY JEFFERSON BYRD,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(August 7, 1992)
Before JOLLY, JONES and WIENER, Circuit Judges.
B Y T H E C O U R T :
In our Order of June 22, 1992, we treated the motion filed by
Defendant-Appellant Gary Jefferson Byrd as a motion for expedited
appeal, under Federal Rule of Appellate Procedure 9(a) and Loc.
Rule 9.1, from an order of the district court that (1) reversed the
magistrate judge's order of pre-trial release of Dr. Byrd on
conditions specified therein, and (2) committed Dr. Byrd to
detention pending trial. In so doing we stated that "[w]ritten
reasons for the orders hereinabove granted shall follow as soon as
practicable." We offer those reasons now.
I
FACTS AND PROCEEDINGS
Defendant-Appellant Gary Jefferson Byrd, M.D., a psychiatrist
residing in Opelousas, Louisiana, was indicted by a federal grand
jury on April 16, 1992, for violating 18 U.S.C. § 2252(a)(2). The
indictment charged that Dr. Byrd knowingly received through the
mail a video tape containing depictions of persons under the age of
18 "engaged in a sexually explicit conduct."
Interestingly, the offense charged in the indictment, i.e.,
receiving a proscribed video tape through the mail, is alleged to
have occurred on July 29, 1987, just three months shy of five years
prior to the indictment. There is no indication that during those
years the federal prosecutors did anything to move the case to
indictment and trial. There are indications in various exhibits,
however, that during at least part of that hiatus Dr. Byrd (whose
license to practice medicine in Louisiana was revoked after the
1987 incident) was pursued in state civil and criminal court
proceedings on claims and charges involving the molestation of
young boys. There is no information to suggest that, at any time
during those years, Dr. Byrd was ever in detention. To the
contrary, it appears that, although Dr. Byrd lost considerable
assets and earning power as a result of his legal problems, he
continued to remain unincarcerated in Opelousas, working
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professionally with law firms in that vicinity. It also appears
that all state criminal charges relating to indecent behavior with
or sexual molestation of young males were ultimately dismissed.
It is against that backdrop that, for reasons not apparent
from the limited record before this court, the office of the United
States Attorney for the Western District of Louisiana renewed its
interest in Dr. Byrd's case, resulting in his indictment on April
16, 1992. An arraignment followed on May 6, 1992, at which the
government asked for a detention hearing under 18 U.S.C. § 3142(f).
That hearing was held at 9:00 a.m. on May 8, 1992, at Lafayette,
Louisiana. The government urged that Dr. Byrd be detained pursuant
to § 3142 as a danger to the community, but put on no evidence of
community danger. The defense, however, adduced testimony of
numerous experts and lay witnesses that tended to negate both the
risk of flight and danger to the community. The government
stipulated to no risk of flight.
Following completion of that § 3142(f) hearing, the magistrate
judge denied detention and ordered Dr. Byrd released on a
$100,000.00 unsecured recognizance bond, subject to numerous
conditions of release consistent with § 3142(c), including but not
limited to travel restriction, periodic reporting to the probation
officer, no weapons possession, medical or psychiatric treatment as
ordered by the court, surrender of passport, obtaining no passport,
and "refrain[ing] from any and all social or physical contact
whatsoever with any minor child absent the supervision of the
minor's legal custodian."
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That afternoon the government appealed the magistrate judge's
order to the district court, pursuant to 28 U.S.C. § 646(b)(1)(a).
The government asserted that when the search warrant for the
subject video tape was executed in July of 1987 there were "two
young children in the house, both of whom stated that they had been
sexually molested by the defendant. . ."; "[p]addles and
photographs of nude children were also discovered in the
house. . . . In 1987, state charges for molestation of juveniles
was [sic] filed. During the time when those charges were pending,
the defendant. . . continued to regularly molest two children."
The government also asserted that during the detention hearing a
psychiatrist testified that a person who molests children not
within his immediate family, but rather from the community, is a
substantial danger to the community."
A copy of the government's Friday filing was served on Dr.
Byrd's then-counsel around midday the following Monday, May 11,
1992. Late that afternoon Byrd's then-counsel filed a response,
pointing out that the government's alleged evidence of paddles and
photographs of nude children are "in no way connected" to the
federal charge against Dr. Byrd and do not violate any state or
federal law; that there was no evidence of continued child
molestation against Dr. Byrd but, to the contrary, that there was
testimony of witnesses in subsequent instances that no molestation
occurred; that there was a recanting of prior testimony of
molestation; that there was testimony by a highly credentialed
physician that Dr. Byrd is not a pedophile; that Dr. Byrd had never
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been detained on state charges; and that the pre-trial service
officer assigned to the case had recommended release of Dr. Byrd on
the conditions set forth in her report. The filing by Dr. Byrd's
then-counsel pointed out that as a matter of law the federal crime
for which Dr. Byrd had been indicted meets none of the criteria
that create presumptions favoring detention under § 3142.
At the hearing on Wednesday, May 13th, the district court
listened to audio tapes of the May 8th hearing before the
magistrate judge, heard some live testimony, and then, at the close
of the hearing, took physical delivery of numerous boxes containing
volumes of documents and records seized from Dr. Byrd's residence
during execution of the search warrant in July of 1987. Counsel
for Dr. Byrd had not been informed that such evidence would be
introduced, and was afforded no opportunity to review it. Those
records had not been presented to the magistrate judge. They were,
however, delivered under seal to the district court, removed to
chambers, and reviewed selectively, in camera, for several hours,
after which the district court concluded that Dr. Byrd should be
detained pending trial as a "danger to the most vulnerable segment
of the population, small children."
Concluding that "there are no conditions of release that would
adequately protect this segment of the community that is in most
need of protection," the district court found, under 28 U.S.C.
§ 636(B)(1)(a) that the ruling of the magistrate judge was "clearly
erroneous as a matter of law." Based on selected portions of the
evidence received at the conclusion of the hearing on May 13, 1992,
5
when the defense had no opportunity to view it much less controvert
it, the district court reversed the magistrate judge largely on the
strength of that "uncontroverted evidence" and ordered Dr. Byrd
detained pending trial.
II
ANALYSIS
The Bail Reform Act of 19841 sets out the procedure for pre-
trial release and pre-trial detention. The First Circuit, in
United States v. Ploof, 851 F.2d 7 (1st Cir. 1988), discussed how
the Bail Reform Act is implemented:
The Bail Reform Act directs the judicial officer to
order pre-trial release on personal recognizance or upon
the execution of an unsecured appearance bond "unless the
judicial 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 community." 18 U.S.C. § 3142(b). If the
preceding terms will not reasonably assure appearance or
will endanger safety, then the judicial officer is
directed to consider a number of conditions to be
attached to a release order. 18 U.S.C. § 3142(c). Only
"[i]f, after a hearing pursuant to [§ 3142(f)], the
judicial officer finds 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," shall the judicial officer order
detention. § 3142(e). Section 3142(f), which is central
to the present appeal, in turn specifies certain
conditions under which a detention hearing shall be
held....
Section 3142(f) provides in material part as
follows:
(f) Detention hearing. The judicial officers
shall hold a hearing to determine whether any
condition or combination of conditions set
forth in subsection (c) of this section will
reasonably assure the appearance of the person
1
18 U.S.C. §§ 3141 et seq.
6
as required and the safety of any other person
and the community -
(1) upon motion of the attorney for the
Government, in a case that involves -
(A) a crime of violence;
(B) an offense for which the maximum sentence
is life imprisonment or death;
(C) an offense for which a maximum term of
imprisonment of ten years or more is
prescribed in the Controlled Substances Act
(21 U.S.C. 801 et seq.), the Controlled
Substances Import and Expert Act (21 U.S.C.
951 et seq.), or [the Maritime Drug
Enforcement Act (46 U.S.C. App. 1901 et
seq.)]; or
(D) any felony if the person has been
convicted of two or more offenses described in
subparagraphs (A) through (C) of this
paragraph, or two or more State or local
offenses that would have been defenses
described in subparagraphs (A) through (C) of
this paragraph if a circumstance giving rise
to Federal jurisdiction had existed, or a
combination of such offenses; or
(2) Upon motion of the attorney for the
Government or upon the judicial officer's own
motion, in a case that involves -
(A) a serious risk that the person will flee;
or
(B) a serious risk that the person will
obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt to
threaten, inure, or intimidate, a prospective
witness or juror.
In other words, § 3142(f) does not authorize a detention
hearing whenever the government thinks detention would be
desirable, but rather limits such hearings to the [six
circumstances listed in (f)(1)(A), (f)(1)(B), (f)(1)(C),
(f)(1)(D), (f)(2)(A) and (f)(2)(b)].
Id. at 9-10.
A hearing can be held only if one of the six circumstances
listed in (f)(1) and (2) is present; detention can be ordered only
after a hearing is held pursuant to § 3142(f). Detention can be
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ordered, therefore, only "in a case that involves" one of the six
circumstances listed in (f), and in which the 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. The
First and the Third Circuits have both interpreted the Act to limit
detention to cases that involve one of the six circumstances listed
in (f). See Ploof, 851 F.2d at 11; United States v. Himler, 797
F.2d 156, 160 (3rd Cir. 1986). Both Circuits held that a person's
threat to the safety of any other person or the community, in the
absence of one of the six specified circumstances, could not
justify detention under the Act. There can be no doubt that this
Act clearly favors nondetention. It is not surprising that
detention can be ordered only after a hearing; due process requires
as much. What may be surprising is the conclusion that even after
a hearing, detention can be ordered only in certain designated and
limited circumstances, irrespective of whether the defendant's
release may jeopardize public safety. Nevertheless, we find
ourselves in agreement with the First and Third Circuits: a
defendant's threat to the safety of other persons or to the
community, standing alone, will not justify pre-trial detention.
In the case before us, the government requested a detention
hearing and urged that Dr. Byrd be detained on the grounds that he
was a danger to the community. The government has not shown,
however, that any one of the six listed circumstances that warrants
pre-trial detention is present in this case.
8
Assuming that the government has shown that there is no
combination of release conditions that will reasonably assure the
safety of other persons and the community, Dr. Byrd could have been
detained only if the government had also established that the case
against him involves a crime of violence. Dr. Byrd is charged with
receiving a videotape in the mail, a tape which depicts minors
engaged in sexually explicit activity. The crime thus charged is
obviously passive and is not in and of itself a crime of violence.
Nevertheless, by demonstrating child molestation--an act of
violence--by Dr. Byrd, and that such specific act or acts are
reasonably connected to the specific offense with which he is
charged, the government could have established that Dr. Byrd's is
"a case that involves a crime of violence." In other words, it is
not necessary that the charged offense be a crime of violence; only
that the case involve a crime of violence or any one or more of the
§ 3142(f) factors. But the proof of a nexus between the non-
violent offense charged and one or more of the six § 3142(f)
factors is crucial.
On the record before us the government has failed to prove
that the case against Dr. Byrd involves a crime of violence. That
Dr. Byrd may have molested minors not connected with the specific
offense now against him, or that young boys and pornography in
addition to the subject videotape were present at Dr. Byrd's
premises when the warrant for the mailed tape was executed, or that
expert witness testimony supports that he will likely molest
children once released, do not satisfy the nexus or involvement
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requirement of this Act for detaining a defendant before his
conviction.
There is no doubt that the Act places a risk on society: a
defendant who clearly may pose a danger to society cannot be
detained on that basis alone. In such instances, the Act requires
that society's interest be safeguarded only by a set of conditions
imposed on his release.
If the defendant breaches a term of his release, however, the
government may initiate a proceeding to revoke his release.
§ 3148. Therefore, notwithstanding our holding today, we caution
Dr. Byrd and remind the government, the magistrate judge, and the
district court that the provisions of 18 U.S.C. § 3142 do not
contemplate finality or res judicata on the issue of pre-trial
detention. The magistrate judge or the district court "may at any
time amend the order to impose additional or different conditions
of release" as provided in § 3142(c)(3). Moreover, "[t]he hearing
may be reopened ... at any time before trial, if the judicial
officer finds that information exists that was not known to the
movant at the time of the hearing and that has a material bearing
on the issue whether there are conditions of release that will
reasonably assure ... the safety of any person and the community"
as provided in the last sentence of subsection (f). Such a
reopener would be proper in this case only if the information
implicated one of the six circumstances listed in § 3142(f).
CONCLUSION
Under the scheme of the Bail Reform Act, pre-trial detention
10
requires a detention hearing. A detention hearing can only be held
in a case that involves a crime or circumstance set out in
§ 3142(f) of the Act. On the record before us, Dr. Byrd's case
involves none of these crimes or circumstances. Therefore, as the
fact that Dr. Byrd may pose a threat to the community is not,
standing alone, a sufficient basis to detain him before conviction,
his detention is not authorized by the Act.
The district court's order of May 13, 1992, is therefore
VACATED, and the magistrate judge's order of May 8, 1992, is
REINSTATED.
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