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 rel ease of Dr. Byrd on

conditions speci fied therein, and (2) committed Dr. Byrd to2

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 rece ived through the

mail a video tape containing depictions of persons under the age of

18 "engaged in a sexually explicit conduct."

Interestingly, the off ense 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license to practice medicine in Louisia na was revoked after the

1987 incident ) was pursued in state civil and criminal court

proceedings on claims and cha rges involving the molestation of

young boys. There is no information to suggest that, at any time

d uring those years, Dr. Byrd was ever in detention. To the

contrary, it appear s that, although Dr. Byrd lost considerable

assets and earning power as a result of his legal problem s, he

continued to remain unincarcerated in Opelousas, working3

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 s upervision of the

minor's legal custodian."4

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 the re were "two

young children in the house, both of whom stated that they had been

sexually mole sted by the defendant. . ."; "[p]addles and

p hotographs 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.

. . co ntinued 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 charg e 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 recant ing of prior testimony of

molestation; that there was testimony by a highly credent ialed

physician that Dr. Byrd is not a pedophile; that Dr. Byrd had never5

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 be en 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

durin g 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, r emoved 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, 1992,1 18 U.S.C. §§ 3141 et seq.

6 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 th at "uncontroverted evidence" and ordered Dr. Byrd

detained pending trial.

II

ANALYSIS

The Bail Reform Act of 1984 1 sets out the procedure for pretrial 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 relea se will not

reasonably assure the a ppearance 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 ju dicial officer is

directed to consider a numbe r 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 judicia l officer order

detention. § 3142(e). Section 3142(f), which is central

to the present appeal, in turn specifies certain

conditions under which a detent i on 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 person7 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 lim its 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 onl y 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 be8

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). S ee 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 on e 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.9

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 wi th 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 nonviolent offen se 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 t he 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 nex us or involvement10

requirement of this Act for detai ning a defendant before his

conviction.

There i s 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 in itiate 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 p rovisions 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 befor e 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 detention11

requires a detention hearing. A detention hearing can only be held

in a case that involves a crime or ci r cumstance set out in

§ 3142(f) of t he 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, i s therefore

VACATED, and the magistrate judge's order of May 8, 1992, is

REINSTATED.