The Criminal Trials
 

BAIL MOTION, August 28, 1981

      R-81-39-ECR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA

UNITED STATES OF AMERICA, Plaintiff,
      VS.
JOHN BIRGES, SR., JOHN WALDO BIRGES, JR., JAMES WILLIAM BIRGES,
ELLA JOAN WILLIAMS, WILLIS "BILL" BROWN, and TERRY LEE HALL, Defendants.

TRANSCRIPT OF PROCEEDINGS
      BAIL MOTION
      August 28, 1981
      Reno, Nevada

APPEARANCES:
      For the Plaintiff:
      EDWARD R.J. KANE,
      Assistant United States Attorney
      Federal Building & Courthouse
      300 Booth Street, Pm. 2032
      Reno, Nevada 89509

      For Defendant Birges:
      MARTIN H. WIENER
      Assistant Federal Public Defender
      Federal Building & Courthouse
      300 Booth Street, Rm. 409
      Reno, Nevada 89509

      For Defendant Williams:
      BRENT T. ADAMS, Esq.
      Johnson & Adams
      111 California Avenue
      Reno, Nevada 89509

      For Defendant Brown:
      WILLIAM B. PUZEY
      Attorney at Law
      604 Lander Street
      Reno, Nevada 89509

      For Defendant Hall:
      FRED H. ATCHESON, Esq.
      Both, McNabney, Key, Pike & Atcheson
      121 California Avenue
      Reno, Nevada 89509

INDEX

      ARGUMENTS:
      By Mr. Wiener for Mr. Birges
      By Mr. Adams for Ella Joan Williams
      By Mr. Puzey for Willis "Bill" Brown
      By Mr. Atcheson for Terry Lee Hall

     
     

RENO, NEVADA, Friday, August 28, 1981, 10:30 A.M.

THE COURT: This is the time set for motions for reduction of bail in Case No. R-81-39-ECR. The government is represented by Assistant United States Attorney, Edward R. J. Kane; and the defendants are all present with their respective counsel.
      The first motion we'll hear is that of John Birges.

MR. WIENER: Your Honor, would you like Mr. Birges to accompany me to the podium?

THE COURT: I may have some questions of Mr. Birges, so that would be all right.
      Mr. Birges is represented by his attorney, Martin H. Wiener.

MR. WIENER: Thank you, Your Honor. I think it would be instructive for the court to have a little idea of Mr. Birges's background, and there is a certain irony in his current situation.
      Mr. Birges is a Hungarian freedom fighter and now finds himself coming to America, the land of freedom in the mind of most of those in Eastern Europe who had their lands overrun during the period during and after World War II, to once again fight for his freedom here, and in doing so he has not been convicted of any crime. He is still as innocent in the eyes of the law as the day he came here from Hungary.
      Now, I had a thought yesterday when I came in this courtroom, I had not seen it so crowded since the last time we had had our routine swearing in of new citizens. And it's quite ironic because it was at a proceeding exactly like that that Mr. Birges came before a United States District Court, was sworn in as a citizen of the United States after having learned the Constitution, the history of America and all the legal rights that go along with citizenship here.
      And he cannot understand why he's being held on two million dollars bail when in fact at this point he has not been proven guilty of anything. He asked me last night: Why am I being punished, I have not been convicted of anything? he asked me. I learned, he said to me, that in the Constitution there should not be any excessive bail permitted. Why could they set my bail at two million dollars when they know that I do not even have enough funds to hire my own attorney?
      He is aware of the presumption of innocence. I don't have to remind Your Honor of that, but Mr. Birges said I am presumed innocent until proven guilty; why am I being treated as a guilty person; why am'I being subjected to the cruel and unusual punishment forbidden by the Constitution that place him in a jail where he is not permitted to have a comb, not permitted to have a pencil, not permitted to have deodorant, permitted to bathe himself once a week, or so he understands?
      There is no window in his area where he can see the sky at all. It's badly lighted. He feels that makes it very difficult for him to read.
      Now, time in prison is not new to Mr. Birges. He spent eight and a half years in prison in Siberia. He was a Hungarian and Hungary was overrun by the Germans in World War II. At the end of the war, the Russians overran Hungary. At that time, he began working for CIC, the Counter Intelligence Corps, as an intelligence agent for the Allies in Russian Occupied Hungary.
      On April 27th, 1948, after being captured by the Russians, he was sentenced to 25 years of hard labor in Siberia for working for the Allies Counter Intelligence corps. He served eight and a half years of that sentence and was released on July 4th of 1956.
      Three months later, he was involved in an instrumental way in the uprising in Hungary against the occupation and domination of their government by the Russians. On October 23rd, 1956, was when the uprising began in Budapest, Hungary on October 23rd.
      Mr. Birges was personally in charge of an uprising in his own town of Kecskemet in Hungary. When the Russians occupied Hungary again in reprisal for that uprising on November 4th, 1956, he was captured by the Russians as one of the leaders of the Freedom Fighters. At which time -- excuse me.
      Mr. Birges has just advised me that he saved his life only by speaking Russian perfectly. They wanted to execute him on the spot. Three days later, Freedom Fighters retook the town in which he had been captured and that is how he was freed. He escaped to Austria three weeks later in November 27th, 1956, and then he spent six months still in Eastern Europe as a Red Cross interpreter, and on May 24th, after two days of travel, he finally arrived in the United States as a free man, so he believed.
      Now, Your Honor is well aware that the minimum time that one must wait before one must become a citizen is five years. Well, in 1962, five years from the time that Mr. Birges first set foot in America, he became a citizen. He became a citizen of this country as quickly as he possibly could. He had met his wife upon his release from prison in Siberia; had married her. She came over to America with him and she became a citizen, and they both settled immediately in the area of Fresno, California.
      He's lived in the Fresno area since 1957, some 24 and a half years.
      Now, I know the major consideration that Your Honor has is whether or not there is any danger of Mr. Birges fleeing and failing to live up to his obligations to make all required court appearances. He has a passport on which he has taken one trip out of America. That was in 1973. He took a trip to Europe. He went to Austria where he had spent some of his years while he was in Europe, and he told me this morning that he had been considering going into Hungary, his homeland.
      He is no longer a Hungarian citizen, by the way. He gave that up when he became an American citizen, and he told me, and this is a man with a considerable amount of bravery, that he was afraid to go back into Hungary. if the communists there captured him, he might be executed or sent back to Siberia. He renewed his passport in 1977.
      He has not been out of the country with that passport since. I don't know whether there is going to be comment brought up by the United States in regards to this passport, but the passport has already been taken from him. There is no place he can go.
      He was interviewed four to five times by the FBI between the time of the Harvey's bombing and the time of his arrest, and in spite of protracted questioning by the FBI, he never used that passport to flee. He knew his sons had been questioned and he never fled at that time.
      I don't think that there is anything before this court to indicate there is any danger that Mr. Birges is going to flee if his bail is set within some limits that he can afford.
      When he came to America, he embodied many of the things that come within the title of the American Dream. He worked hard, seven days a week. He had a contracting business, a landscaping business, he built parks. He worked for the United States Government, in fact. He landscaped the Federal Building in downtown Fresno. He landscaped housing at the Castle Air Force Base in Atwater, California. He landscaped the golf course at the Norton Air Force Base in San Bernardino, California.
      He amassed quite a considerable fortune. That's all gone now. His financial resources are obviously negligible. Your Honor has the financial affidavit before you. It was prepared and submitted yesterday.
      Any bail in the neighborhood of two million dollars is ridiculous at least in terms of his ability to post that. He has never been arrested in his life in America, not even for a traffic offense. His length of residence in the community, and I'm going over the particular factors outlined in the Bail Reform Act, he does not have ties to the Reno community.
      However, he has lived in the Fresno area for 27 years. That's not so far away that if he was released, with some kind of conditions on his travel, he couldn't be confined to the Fresno area where he has as many ties as one could possibly conceive of, both in the business community and in terms of his social contacts there.
      There's no record that he has ever failed to make any required court appearances. in fact, until this case began he was never required to appear in court for any reason whatsoever.
      I'm sure I can anticipate that there will be considerable discussion about the nature and circumstances of the crime with which he is charged. It's of considerable magnitude. There's no way to diminish that. However, I would advise the court that the source of the information that's brought to the court should be of considerable interest. It's no secret at this point that his sons have accused him of involvement in this crime.
      However, they have done so with a considerable benefit attached to that. I would just ask Your Honor to recall that one of the standard jury instructions given to jurors in deciding the credibility, the believability of a witness, from Devitt, Section 17.02: "The testimony of an informer who provides evidence against.a defendant for pay" -- and I would add parenthetically, there is a half million dollars reward in this case. It is not clear what the involvement of the sons with that is, but it is quite a considerable incentive -- "for someone who provides evidence against the defendant for pay, or for immunity from punishment, or for personal advantage or vindication must be examined and weighed by the jury with greater care than the testimony of an ordinary witness."
      I have had discussions with the attorney for one of Mr. Birges's sons, who I am surehas the sort of information that will be brought before Your Honor by the United States Attorney. Not only are they out without having to post one penny with the court in California, but additionally I there is a plea bargain that, as I understand, just needs formalizing that would guarantee them probation, so that they would not spend a day in custodv on this case nor would it cost them one red cent.
      And, in fact, they stand to gain a half million dollars by information given by them against their father.
      I would also ask Your Honor to recall the decision in United States vs. Honeyman, 9th circuit 470 F.2d 473 which says that "the whole spirit of the Bail Reform Act is that a defendant facing trial should be released, rather than detained, unless there are strong reasons for not releasing him." The preference, therefore,- I'm no longer quoting from the case- is for release rather than detention, and I'm sure we shall hear how weighty the evidence is in the minds of the prosecution, but I will also remind you United States vs. Honeyman held "that all of the facts being considered in deciding the reduction of bail, the least weight should be given to the weight of the evidence against the accused."
      Your Honor, at this point, it's unclear what kind of bail would be within the means of Mr. Birges and his friends. We would ask, Your Honor, for a bail that's within some kind of reasonable bounds, perhaps $50,000 with some provision for posting that, a percentage of that with the court, a deposit, and that would be in recognition of the severity of the offense.
      But other than that, there does not appear to be any reason to believe that Mr. Birges wouldn't honor his obligations to appear in court at all times.
      Thank you.

THE COURT: Thank you, Mr. Wiener.
      What is the date of your birth, Mr. Birges?

DEFENDANT BIRGES: March 13, 1922.

THE COURT: And where was that?

DEFENDANT BIRGES: In Hungary, Jaszbereny.

THE COURT: Can you spell that for me?

DEFENDANT BIRGES: J-a-s-z-b-e-r-e-n-y.

THE COURT: Mr. Birges, I understand that either you or your attorney may have made a statement to Judge Christensen in Fresno that you were in fear of your life if you'd come up here. Did you or your attorney make that?

DEFENDANT BIRGES: Yes.

THE COURT: Do you believe that?

DEFENDANT BIRGES: Your Honor, I wouldn't have said it.

THE COURT: Pardon?

DEFENDANT BIRGES: If I wouldn't believe it, I wouldn't said it.

THE COURT: Thank you.

DEFENDANT BIRGES: Excuse me, Your Honor, $500,000 reward for somebody turn me in indicated that. Five hundred thousand dollars to apprehend me. It was $50,000 to get rid of me.

THE COURT: Mr. Wiener, can you tell me, either you or Mr. Birges, tell me a little about his health?

MR. WIENER: It's not-- He appears to be healthy, but in fact he suffers from a prostate condition. And a matter I wasn't certain I wanted to bring before the court at this time has to do with the medical attention he's receiving, which actually, he has not received any medical attention. He desires that. Additionally, he's advised us that he has had a cancer operation in which approximately half of his intestines have been removed.
      Additionally, he has had two ulcer operations, which portions of his stomach have been removed. Whether these are the results of the beatings he suffered in his youth in Hungary is not clear, but his digestion is delicate.

THE COURT: Now, apparently, you have not been employed for some two years; is that correct?

DEFENDANT BIRGES: That's correct, Your Honor.

THE COURT: And you do not own the apartment or home that you were living in, and you have no other assets; is that correct?

DEFENDANT BIRGES: Correct.

THE COURT: So how were you living, or how were you being supported, at that time?

DEFENDANT BIRGES: Well, let's -- That's kind of hard to say, but in 1978 I bought five thousand five hundred dollars worth of canned goods. Every sources. I build myself ten by ten freezer also in '78.
      I bought three steers, 700 pounds of meat, two pigs, three lambs, lobster and everything you can imagine. I live from there, and I live with my girlfriend and she's paying the utilities and I eat what I bought so I don't need anything.
      I don't go anywhere. I was home all the time because of the illness. I can work maybe an hour and then I am out of breath and then I have to sit down and relax about half an hour long and then I start all over again.
      So if I can express this way, I was known as gigolo.

THE COURT: I have no further questions at this time.
      Mr. Kane?

MR. KANE: Thank you, Your Honor.
      Mr. Wiener spoke in the course of his argument about bail for Mr. Birges and his friends. I'm not sure how many of the people at the defendant's table Mr. Birges is counting as his friends, but I can pretty well assure him that one of those people will be stricken from that number by the conclusion of this argument.
      Before addressing the question of the amount of bail, I'd like to assure the court of one thing, this bail was requested by the government in keeping with the spirit of the Bail Reform Act as an amount which would reasonably ensure the defendant's presence for trial. It was not selected for the benefit of the media. It was not selected for its symbolic value. It was recommended and will be argued to the court today as the appropriate bail for a case of this magnitude and for this particular defendant.
      I will be proceeding in great part in the course of this argument by way of offer of proof based on information which I have examined and which I have discussed with agents. Just to forestall any objection, I would observe for the court that the rules of-evidence do not apply to this proceeding, both by internal provision and
      Rule 1101 of the Rules of Evidence and the Bail Statute itself Section 3146 of Title 18 which provides "information stated in or offered in connection with any bail order need not conform to the rules pertaining to admissibility of evidence in a court of law."
      A great deal of what I have to say will be the result of the interviews of Mr. Birges's two sons, John, Jr., and Jim. A lot of speculation and misinformation has surrounded those statements, and before getting into the facts, I'd like to clear up some of that.
      It has been mentioned both in the media and in this courtroom that the two boys had received a considerable benefit for giving their statement. A couple of things need to be addressed there.
      First of all, Mr. Harvey Gross has made a public statement that neither son, John Birges, Jr., or Jimmy Birges, will share in any way in the $500,000 reward that's been offered by Harvey. Neither of the boys has ever mentioned to the FBI in the course of debriefings, which consumed in excess of 24 hours, they have never mentioned the reward. No one has ever told them they will share in the reward. They will not share in the reward.
      Prior to the boys giving their statements to the authorities, no plea negotiations of any kind were entered into. They were asked if their cooperation would be brought to the attention of the sentencing court and they were told quite properly that it would. Since they have been arrested on the indictment, they have indicated their willingness to plead guilty to the conspiracy count.
      That willingness has been accepted by the government. There is no agreement that the defendants will be guaranteed probation or even the fact that the government will recommend probation, simply that the government will bring to the attention of the court whatever cooperation those two young men have given to the government in this investigation.
      Now, as to the factors to be considered by the court in setting bail, several of them were addressed by the defendant. They start off, of course, with the nature and circumstances of the offense charged, and the weight of evidence against the accused. Counsel quite properly argues that case law has held that the nature and circumstances of the offense and the weight of evidence, especially, because of the presumption of innocence, are to be given less weight than the other factors that the court considers, as a matter of fact, the least weight of all those factors.
      Nevertheless, they are factors for the court to consider and in a case such as this, a unique case, they are factors which become even more important. Simply stated a defendant in Mr. Birges's presently indigent position is not entitled to the same bail as a similarly said person with a similar background charged with a five-year offense.
      What Mr. Birges is looking at under the terms of the indictment is a cumulative penalty of 40 years and $40,000 in fines. He is also facing the substantial likelihood of state prosecution for his offenses here in Nevada. We also have substantial evidence of the theft of the dynamite that was used in construction of this bomb and so he very well may be looking at charges of that nature in California.
      So that the nature and circumstances of the offense should be taken into account and they also are based on the information we have received on the character and mental condition of the defendant which is another one of the factors that the 3146 directs the court to consider.
      I have lodged with the clerk of the court a copy of probably one of the best known documents in this part of the country, outside of the Declaration of Independence, and that's the ransom note that was delivered to Harvey's a year and two days ago today. And there are a couple of things in that note which are pertinent.
      There is a statement at the bottom of page 2 that indicates, and I quote, "In the event of a double-cross, there will be another time sometime in the future when another attempt will be made. We have the ways and means to get another bomb in."
      There is a statement on the last page containing the directions to the helicopter pilot who was supposed to deliver the ransom, and again I quote, "You are to have no communication with anyone after you reach the airport. Do not try to be a hero. Arlington is full of them and they can't even smell the flowers."
      As far as whether another job was being planned, that has been the subject of a lot of speculation. Both of the Birges sons gave statements to the FBI'that in fact another job had been planned. That it was either going to be a five million dollar ransom demanded from Harvey's or a twelve million dollar ransom demanded from the Bank of America in San Francisco.
      Jimmy Birges stated that his father and he believed Ella Joan Williams had gone to San Franciso for the purpose of casing that bank.
      In the course of serving search warrants after the arrest of Mr. Birges, approximately 600 pounds of dynamite was recovered at a location to which they were led by one of the Birges sons. This is still a matter of concern to the FBI as this dynamite was part of a recent theft of 900 pounds of dynamite and over 600 was recovered.
      As far as other plans to fabricate another device again, one of the Birges sons told us that the father had started buying up switches. The bomb that was placed in Harvey's has become rather well known because of the bank of switches on the front of the bomb itself.
      About 20 such switches were recovered from Mr. Birges's residence as a result of a search warrant served after his arrest.
      So we feel that we do have significant evidence of Mr. Birges's character and that this was something that was imminently going to happen again.
      Now, as far as Mr. Birges's friends at the counsel table, one of those friends is Mr. Willis "Bill" Brown, who after being arrested, and after being advised of his rights pursuant to the Miranda decision, gave a full signed confession to agents of the Federal Bureau of Investigation. He described in detail the way he was recruited by Mr. Birges, the part that he took, along with Mr. Birges and Mr. Hall, and actually delivering the bomb into Harvey's Resort Hotel and Casino.
      And he further described a meeting Mr. Birges had with Mr. Brown and Mr. Hall the day after the bomb exploded. Mr. Birges, according to Mr. Brown, called both Brown and Hall to go to Birges's house. Both were somewhat apprehensive about the meeting. Mr. Birges met with him and advised both of them to just lay low, that he was going to be planning another job and he told both Mr. Brown and Mr. Hall that if they talked to anyone about their role in the Harvey's bombing they would be eliminated. And he told them that it would not matter if they were in jail because he had ways to reach out and have them eliminated in jail.
      Now, I mentioned this because the court has recently called to the government's attention in another matter certain cases which hold that a legitimate factor for the court to consider in setting bail is that the court can set a higher bail or in fact deny bail in advance of trial in order to protect the courts own process from being jeopardized by threats against the government's witnesses.
      The cases cited to our attention by the court were United States vs. Gilbert, reported at 425 F.2d 490, and Carbo vs. United States, 82 S.Ct. 662. I had occasion this morning to review the Gilbert case and the Gilbert case deals with threats both to witnesses and potential witnesses.
      The government would take the position that although Mr. Brown is currently a co-defendant, he is certainly, by virtue of his statement, a potentially damning witness against Mr. Birges, and that under the authority of these cases this can also be considered.
      Further, Mr. Birges has interfered far more directly with the court's orderly process in the investigation of this matter. According to John Birges, Jr., and Jim Birges, Mr. Birges, Sr., had a meeting with them shortly after the abortive extortion attempt and at which time went over with them the great details, the alibies which they were to present to the authorities if they were questioned.
      John Birges, Sr.'s, alibi was to be that he drove his van up to this area, that the van broke down and he hitch-hiked back to Fresno. That would purportedly explain the presense of his van in the local area and allow him to claim non-involvement in this incident.
      John Birges, Jr., was later subpoenaed, when the FBI learned of the van, to testify before the grand jury here in Reno, Nevada. Mr. Birges met with John again, according to John, before he traveled up here to testify and Mr. Birges, Sr., instructed John, Jr. to perjure himself in front of the Federal Grand Jury at Reno, Nevada, because there was no way that the government would be able to prove that he was lying.
      Pursuant to those instructions, that is exactly what John did. John was later charged with that perjury and was arrested,at that point he gave his statement. Once Jimmy found out that his brother had made that statement, he came in voluntarily and provided the information.
      I will note for the court that the extent and scope of this investigation are the matter of almost common knowledge. This has been investigated by a great number of agents for a full year. The statements that the two boys have given to the FBI are some 50 to 60 pages in length. These are the condensation of over 12 hours of debriefing by each of these boys. They are corroborated in every single detail by the FBI's investigation. They are contradicted not in a single word or phrase by that investigation.
      As far as outright evidence of Mr. Birges, Sr., being a flight risk, Mr. Birges, Sr., on August 11th, 1981, contacted his brother in California and requested to borrow $3,000. His brother asked him why he wanted the money and Mr. Birges, Sr., stated he wanted to return to Hungary.
      Now, Mr. Birges stated that his reason for going was that his mother was ill. I would simply point out to the court that this date of August llth was imirtiediately in the time frame when the FBI was starting to be in very frequent contact with John Birges, Jr., and Jim Birges, and it was three short days after a complaint was filed that John Birges, Jr., was arrested, and charged with perjury and gave the FBI the information which led to the arrest of the four people here in court today.
      So we feel that Mr. Birges's background, the circumstances of the offense, his effort to borrow money to leave the country indicate clearly that he is a substantial flight risk. He further had made a statement to Jimmy Birges when they were riding back to Fresno in the car after the bomb had been planted, the first ransom attempt hadn't worked out and they were going back to Fresno to work out some of the plans to make a second run at the bomb.
      When they heard that the bomb was detonated at Harvey's over the radio, John Birges, Sr., made the statement at that time that he had nothing to live for, that the only thing he has found was to gear up for another attempt of the same kind.
      I think in order to attempt to protect the court's orderly process, in taking into account the circumstances and the weight of evidence of the accused, the bail of two million dollars, if anything, is conservative and should certainly not be disturbed as far as the accused's family ties, employment, financial resources. He has stated to the court that he is without financial resources, but that factor standing alone certainly does not warrant reduction of a bail which is appropriate at the time it is set.
      Again, as far as Mr. Birges, Sr.'s financial resources, Mr. Birges has enjoyed what could most easily be described as a more secure business career. He has been a self-made millionaire. He may or may not be able to post bail or to flee at this time. Whether he may or may not 30 to 60 or 90 days from now is an open question, which the government suggests that the court not gamble on by releasing Mr. Birges on a nominal bail.
      Finally, as to the length of residence in the community, Mr. Birges does not reside in this community and never has to my knowledge. I am sure that the defense will argue that the government chose to bring the case here and so we shouldn't be able to argue that.
      Quite simply, the government didn't pick where that bomb was planted a year and three days ago. The government did not pick Harvey's Hotel Resort and Casino as the site of the crime. This was where the crime was committed. This is the appropriate venue. This is where the case belongs.
      The defendant does not have any residence or ties to this community or any to this judicial district. Under all the circumstances, the government contends that amount of two million dollars previously requested is not out of vindictiveness, it is not out of symbolism, it is a reasonable amount and the only amount that would guarantee the presence of Mr. Birges, Sr., for trial.
      One thing I neglected to mention was that Mr. Birges, Sr., had made statements to both of the Birges sons that his intention was, once the extortion had been successfully carried out, to go to Europe in order to launder the money.
      Whether he was going to stay there permanently was never discussed. But we have evidence of at least two instances where Mr. Birges stated his intention to leave the country, one of them only two or three days before he was arrested, one instance in which he threatened two witnesses if they talked about the case, when he instructed his own son to perjure himself in front of a grand jury.
      I think he's showed that he will go to extreme lengths. A person who will issue threats and tell people to commit perjury will not think much about fleeing. The offenses with which Mr. Birges is charged as I already mentioned carry a cumulative penalty.
      On top of that the penalty for bail jumping of five years and $5,000 does not really add much of an incentive for him to appear for trial.

THE COURT: Thank you, Mr. Kane.
      Mr. Wiener?

MR. WIENER: Your Honor, if I could address myself in order to the representations made to you by Mr. Kane. First, in regard to his representation that there were no plea negotiations made prior to Mr. Birges's sons confessing, I don't know when these plea negotiations were entered into but one thing is for certain; I have had discussions with the lawyer for James Birges, John's son, who has advised me that the two boys are going to be treated under the Youth Corrections Act in California.
      There's a reason they're not here, although they are named on the indictments: that is because they have agreed to plead guilty in California to these charges, and they're doing so under the understanding that all counts except the conspiracy would be dropped, that they would be treated as youthful offenders with all the rights that goes along with that, including the opportunity of having your conviction set aside, in effect taken off your record, and that they are going to get probation.

THE COURT: How old are these sons, Mr. Birges?

DEFENDANT BIRGES: Nineteen and twenty-one.

THE COURT: James is 19?

DEFENDANT BIRGES: Correct.

THE COURT: Thank you.

MR. WIENER: So regardless of what the arrangement was before these boys talked with the authorities, what is clear now is that they have a tremendous amount to gain by making their testimony and information to appear as useful and as valuable as possible.
      Once again, I would remind Your Honor of the jury instruction that I read earlier, which says that the testimony of one who's either being granted immunity, and in fact these boys are being granted at least partial immunity in the sense that other charges are being dropped against them and additionally that there are considerable benefits that they are reaping.
      They are not in the Sparks jail right now. They're not in the Fresno jail. They are not in any jail. They are walking free.
      The point was raised that Your Honor should consider the possibilities of state prosecution in California and Nevada against Mr. Birges. I would suggest that that's properly a matter that should be considered by a magistrate or judge in California and Nevada and that Your Honor's consideration on this bail notion should be directed exclussively to the federal charges.
      If there are any state prosecution charges that are going to result, let the bail situation be worked out in the state courts.
      The extortion note that's used by Mr. Kane here surely is a potent piece of paper. But, at this point, Your Honor, there must be the presumption that Mr. Birges was not involved in this in any way. At this point, he's presumed innocent. All we're talking here about is the crime with which he is charged.
      I'm going to ask Your Honor to set that aside too and also to look at what actually happened as a result of this Harvey's bombing is that nothing further has happened to Harvey's. So any threats that night have been in there by whoever is responsible were not carried out.
      In fact my recollection of state law is that a mere threat is not even a crime. It's of no more substance than an accusation, which at this Doint Mr. Birges is faced with an accusation.
      An additional piece of law that comes from the standard jury instructions Devitt Section 17.05 says, "The testimony of an admitted perjurer should always be considered with caution and weighed with great care."
      All we have before the court at this time is Mr. Kane's representation that in fact Mr. Birges's son is a perjurer. As to why he perjured himself, that's speculation, and once again based entirely on the word of somebody who has everything to gain and nothing to lose by lying.
      Again, at this point the lies that he gave to the FBI are not under oath, so he's free to say anything he wants to the FBI at this point and suffer no criminal penalty as a result of that.
      It was referenced by Mr. Kane to a telephone call is from Mr. Birges to his brother on August 11th. In fact, Mr. Birges does not have a brother in the United States. In fact, I don't even believe that he has a brother. And as to his desire to go to Europe and visit his mother, in fact, Mr. Birges contacted the FBI who had been questioning him for a period of time and asked their permission if he could go to Europe and visit his mother.
      His mother had been taken seriously ill and had had major surgery, and she's 81 years old, and a letter had been received by Mr. Birges from his mother's physician advising him of her health. And this letter that formed the basis for Mr. Birges's desire to go to Europe and visit his mother, was turned over by him to the FBI.
      Free of any coercion, of any requirement, he did this entirely voluntarily. There is nothing in that incident that would reveal that Mr. Birges intends to run or to flee.
      In fact, he was open, forthright and candid and voluntarily gave his full disclosure to the FBI in his desire to go. I've already advised --
      In fact, Mr. Birges just advised me that the FBI told him: You're not under arrest at this time; there are no charges at this time; you're free to go if you want, and he did not.
      And as for any danger of that occurring in the future, I've already advised Your Honor that the FBI has Mr. Birges's passport in hand. And if that turns out to be incorrect, I'm certain that Your Honor's conditions of release would be as they usually are that any passport that might still be in Mr. Birges's hand be surrendered, but as I've said, I believe the passport is already in the hands of the government.
      So, most respectfully, Your Honor, we want to ask for a bail at some reasonable amount. I mentioned $50,000. It looks like it's disproportionate to two million, but even a hundred thousand with some provision of posting ten percent of it in cash would not only be reasonable bail, countenance by our Constitution and would take into account all the other factors that they discussed.
      And all that was discussed by the prosecution here was the nature and circumstances of the offense and the weight of the evidence against the accused, which is to be merited the least value of any of the factors to be considered in bail.
      One additional fact that Mr. Birges would like me to advise the court of is that he never at any time threatened Mr. Brown. He does not have any desire to do Mr. Brown any harm. Now, the facts of this case have been in the newspaper for quite sometime.
      The attorneys in California were aware of -- As a matter of fact, when I talked to the attorney for Mr. Birges's son, he advised me that Mr. Brown had given a full statement to the government, and in spite of that they have been in the same cell since the time they have been brought to Nevada.
      Mr. Brown even, as far as I can see, looks even better than he did yesterday. No harm has been done to him, no harm will be done to him. In fact, that is something that I don't see in the Bail Reform Act is to be considered, except perhaps if we're considering the character of the defendant, which I believe is amply demonstrated by his exemplary background, his heroism in Europe, his spotless record here in America and not a taint has been found until this case evolved.
      So, Your Honor, most respectfully, we would ask for bail to be lowered to a reasonable amount.

THE COURT: Thank you, Mr. Wiener. I will take that under advisement. As you know, I need to respond in writing, and I will do that as soon as possible.
      The next one will be for Ella Joan Williams.
      Mr. Adams, you may come forward.

MR. ADAMS: Thank you, Your Honor. Of course, Mr. Kane is correct in pointing out that the Federal Rules of Evidence do not apply to this proceeding, but I think it's extremely important this morning that the court focus on the source of information.
      And I will try to provide the court with the names, telephone numbers and addresses of persons who have provided all the information I'm about to give the court. And I have asked and received the permission of each of those persons for this court to contact them directly either by letter or telephone, and I advised the court this morning that everything I say today will be available to be demonstrated to the court by way of affidavit or written statement if the court deems that necessary-
      I think it's ordinarily difficult for this court to set aside arguments and representations of facts made as to one defendant this morning and all of a sudden shift gears and view another defendant. I implore the court and all of us to try as best we can, as I'm sure the court will, to observe the circumstances as they relate to Mrs. Williams only and not to anyone else.
      I'll review in order the factors set forth in Section 3161(b) of Title 18 of the United States Code under which this court must reach a decision as to Mrs. Williams' bail.
      First, of course, and the least of which is the nature and circumstances of the offense charged. The only overt act with which my client is charged in the indictment in this case is that she typed the extortion note referred to earlier today.
      There is no allegation that she authored the note, that she created it, that she suggested its language, that she delivered it or communicated it to anyone. The solitary overt act allegation against that lady is that she typed the note.
      Now, I think that's important to keep in mind.
      The second factor is the weight of evidence against the accused. At this point, we know nothing about the weight of evidence against the accused except that presumably it came from the same perjurers who Mr. Kane refers to in his statement.
      But, nevertheless, assuming the weight of evidence is overwhelming, the government by its allegations in the indictment intends to prove that this lady typed the note.
      The third factor is family ties. I'd like the court's indulgence during my remarks. It has been a long night to try and obtain and verify this information, but I'll try to give it to the court in some semblance of order.
      Mrs. Williams is 47 years old; July 3, 1934, date of birth. Her parents are Mr. and Mrs. Damon Packwood, who reside at 161 Fresno Street in Avenal, California. This information may be confirmed by talking to Mr. and Mrs. Packwood at area code (209) 386-5392.
      Mr. Packwood was self7employed as a mechanic and body shop operator and he is retired. He's married to Mrs. Packwood, who is Mrs. Williams' stepmother. She was formerly a bookkeeper for Bank of America.
      I'm able to provide, if the court is interested, the addresses for Mrs. Williams during the past 20 years. I think it may suffice to say at this point that she has resided in the Fresno area for the past 11 years.
      That she has had one marriage only in her life, for 19 and a half years, and that marriage is presently the subject of divorce proceedings pending in Fresno, California. Mrs. Williams and her husband have four children: Michelle Torigian who's 25 years old. She's married. She has a one-year-old daughter. She is employed as an ophthalmologist assistant and her husband is a plumber, and they live on 3727 North Effie, Fresno.
      The second daughter is Lisa Williams, who is 23 years old. She's just moved to Los Angeles to continue employment with Federal Stereo Company where she's been employed as an administrative manager for two years. She plans to go to school in Los Angeles and study business administration.
      Her third child is Mark Williams, 22 years old, formerly in the United States Army, and he is now part-time employed.
      Her forth child is Scott Williams, 21 years old. He's married. He has a two and a half year old son. He's just moved to Fresno. He is employed as a roofer.
      Needless to say, none of these children have any prior record of crime, of any arrest for any charge.
      As to Mrs. Williams' employment, her record from high school through this day is absolutely exemplary. I think the court must find that there is no person who has come before this court with a more exemplary background. Mrs. Williams dropped out of high school in the 11th grade. She returned to high school in her adulthood and graduated with an exemplary record.
      She went to the-- I believe she had straight A's in high school.
      Your Honor, I have not been able to confirm the high school record.
      She went on to California State University at Fresno where she studied Humanities and specialized an interest in Spanish. Her graduating grade point average was 3.86 on a 4.00 scale.
      Subsequent to her graduate work, she's undertaken 45 hours of graduate studies in Spanish and in criminal justice. This morning I conferred with Professor Jose A. Elgoriagga.
      Professor Elgoriagga is the Chairman of the Foreign Language Department of California State University. He may be reached at (209) 294-2380. Professor Elgoriagga remembers Mrs. Williams, who he has not seen since the late 1960s, but remembered her as an outstanding student.
      He remembered the paper that she wrote for him on the subject of Don Quixote.
      She was an exemplary student as her grade point average indicates. Her grade point average may be confirmed by calling the Registrar of California State University, and I can provide that phone number to the court.
      Your Honor, I don't have it in front of me.
      Upon graduation from California State University, Mrs. Williams became employed with the Probation Office of Fresno, in Fresno County, California. She started her employment on June 1, 1970, as a group counselor at Juvenile Hall.
      She was promoted to a deputy probation officer on August 23rd, 1973.
      Now, I might explain, Your Honor, that according to Richard Simonian, the supervising probation officer in Fresno, California, there are three levels of Probation officers in that county. She became--

THE COURT: Since 1973?

MR. ADAMS: Since 1970 she's been a probation officer. Eleven years. She started on June 1, 1970, as a group counselor.
      She received her first level promotion on August 23, 1973. She was promoted as a deputy probation officer on August 24, 1974, one year and one day later. On November 9, 1979, she was promoted as a deputy probation officer three, and she resigned effective August 17, 1981, the first working day after her arrest by officers of the Federal Bureau of Investigation on August 15th.
      After knowing the charges against her, her employer gave her an opportunity to resign. She has not been terminated.
      All this information may be confirmed by Mr. Simonian at area code (209) 488-3408.
      Mr. Simonian described for me this morning her career, Your Honor. She's handled a case load of over 400 cases at a time. She's started out with what they call an administrative case load bank of misdemeanors, in other words, persons placed on probation for smaller crimes, and her case load at that point was between 350 and 400 cases.
      In the past six to seven months, she's been assigned to persons on probation or under court supervision for alcoholism problems and she has attended frequent review hearings, probation revocation hearings testifying for the government several times a day for 11 years in Fresno County, California.
      Your Honor may wish to confer with Ronald Haun. He is the program evaluator for the Fresno County Probation, (209) 253-4061. Mr. Haun has known Mrs. Williams for approximately nine years. He finds her, as does everyone who knows her, to be a charming, witty, intelligent person, extremely reliable, extremely conscientious, who always in every case appeared in court thousands of times when she was requested to do so and whose only failure to make court appearances, according to Mr. Haun, was in instances of emergencies when her attentions were required in field work outside the courtroom.
      Mr. Simonian adds that although she has always been a competent probation officer, her attitude had increasingly improved over the years. He describes her as reliable and trustworthy. He describes her as having an excellent attitude. He indicates that she has no ordinary record of absences, and her attitude has especially improved in the last two years.
      Never have any disciplinary proceedings or formal complaints been brought against her once in the course of investigating and supervising thousands and thousands of persons under probation supervision.
      Your Honor, Mrs. Boggoro, a deputy probation officer level 3 in the Fresno County office, she may be reached at (209) 488-3408. Mrs. Boggoro has known Mrs. Williams for eight years, both as a personal friend and as a co-workder. She describes her as being reliable, trustworthy, friendly, with a good sense of humor. She knows of no single instance at anytirie when she ever misrepresented anything to anyone of any nature. She has never shown any act of irresponsibility, in the words of Mrs. Boggoro.
      Your Honor may wish to confer with the Honorable Carl Evans. Judge Evans is presiding judge of the Fresno Municipal Court. His chambers may be reached at (209) 488-3434. Judge Evans has known Mrs. Williams in her capacity as a probation officer for 11 years. He regards her as an excellent, and in his words, outstanding officer. He is shocked, in his words, at the charges brought against her in this case.
      He regarded her as exemplary because she was always prepared in all of her cases. He told me this morning that in instances of probation revocation where Mrs. Williams was involved, she was invariably the first one in the courtroom and that was extraordinary to Judge Evans because he said to me usually, or occasionally, rather, probation officers either fail to appear at those proceedings or appear late.
      He has seen her in his courtroom frequently, at least every week for many years. She has never, in Judge Evans's opinion, failed to make any court appearance. She is, in his words, quote, "one of the finest probation officers here and is extremely conscientious."
      And, Your Honor, I know that every advocate has a tendency to exaggerate, but I'm going to tell you verbatim what Judge Evans told me on the phone: quote, "I would consider it a privilege to prepare an affidavit in Mrs. Williams' behalf," unquote.
      I might also add that according to the District Attorney and County Public Defender in Fresno County, Judge Evans has a reputation as being an extremely conservative judge.
      The court may wish to confer with the Honorable Dennis Caeton. Judge Caeton is a judge in, the Superior Court of Fresno County. His chamber may be reached at (209) 488-3623.
      Mrs. Williams has known Judge Caeton on a professional basis long before he took the bench. She knew him when he was District Attorney, and she has appeared before him dozens of times since his election to the Superior Court bench in Fresno. He has known her approximately five years.
      He advises me that she has never failed to make any court appearances. She has been an extremely conscientious and reliable probation officer.
      Your Honor, this year my client took the law school admissions test and after submitting her scores, her undergraduate record and her recommendations to the San Joaquin College of Law in Fresno, she was accepted for admission as a first year law student there this September.
      That information may be confirmed by talking to Mrs. Waiiger, the Registrar of San Joaquin College of Law at (209) 225-4953.
      Your Honor, as to my client's financial ability, the court is familiar with that by virtue of her affidavit. If the court would like confirmation of the fact that Mrs. Williams has never once failed to make any payment upon any obligation, the court may confer with the Fresno County Employee's Credit Union.
      Mrs. Rita Bradshaw, the deliquency control officer of the Credit Union, who may be reached at (209) 252-5000, informed me today that there have never been any problems with Mrs. Williams's account, which has been opened since September 1970, and upon which she's taken out and paid off many, many small loans as well as larger ones.
      Her present balance is approximately $3,000. She's never failed to make one payment to the Credit Union under any loan obligation. The address of the Credit Union is 4979 East University, Fresno, California 93727.
      Your Honor, Mrs. Williams has never been sued, civilly or criminally. She's never been charged with any crime, felony, gross misdemeanor, misdemeanor, petty offense in her entire life of 47 years. She has never once been interviewed as a suspect in a crime until this case. She has never failed to make a court appearance anywhere, and in fact has appeared thousands of times as a-witness for the State in thousands of cases.
      She has no passport. Her passport was seized by agents of the Federal Bureau of Investigation and they still have it.
      She's been accepted to the San Joaquin College of Law, and the Registrar informed me today that her acceptance has been deferred pending the outcome of this case.
      I would remind the court, finally, of two factors, one of them mentioned by Mr. Wiener, and that is that we have two individuals today who have totally and entirely admitted their involvement in the conspiracy charge who have admitted perjury to a grand jury and who have not had to post one penny bail anywhere.
      And I would, secondly, remind the court of the decision in United States vs. Hart, appearing at 617 P.2d 325, Forth Circuit Case 1980, in which the court held that cooperation with federal agents does not have a bearing on bond reduction under 18 United States Code Section 3146(b).
      Your Honor, I respectfully submit that under any fair analysis of my client's entire life that if she does not qualify for a release upon her own recognizance or upon a personal surety bond in an appropriate amount with appropriate conditions, then the bail reform factors set forth in Section 3161 mean nothing.
      Thank you, Your Honor.

THE COURT: Mr. Kane?

MR. KANE: Thank you, Your Honor.
      With the court's permission and in the interests of time, I'll not repeat the points covered in Mr. Birges's bail motion but devote myself to remarks made by Mrs. Williams's counsel.
      One misstatement that was made a couple of times is that the whole case against Mr. Birges and Mrs. Williams and the other defendants rests on the testimony of two admitted perjurers. To make it clear, Mr. John Birges, Jr., is the only one of the two sons who appeared before the Federal Grand Jury. He is the only one of the two sons who we know has ever misstated anything in connection with this case.
      Mr. Jim Birges came in voluntarily to the FBI and gave his statement. He was not under arrest. He was not under compulsion. No charges were pending against him. He freely and voluntarily, and without any previous perjury, gave his statement which corroborated John's in every respect and which was corroborated by the FBI's investigation in every respect.
      As far as Mrs. Williams herself, Mr. Adams correctly points out that the only overt act alleged against her in the indictment is typing the ransom note. As the court is well aware, every overt act does not have to be laid out in the indictment, and it was certainly not our intent to limit ourselves to just proving that that was Mrs. Williams's involvement in the conspiracy. It was not.
      But before getting into what else she is alleged to have done, let me just say a couple of words about the note and what information we have on it.
      The information on Mrs. Williams typing the note comes not from John Birges but from Jimmy Birges, the Jimmy Birges who was not under arrest, who has not committed perjury.
      Jimmy told agents of the FBI that as the date of the extortion attempt grew close, he came home one night and was informed by his father, John Birges, Sr., and by Ella Williams, both of whom were sitting at the kitchen table, that the ransom note had been typed, and there it was over on the other table.
      Now, Jim went over to look at the note. He went to pick it up and they both told him not to touch it because they didn't want any fingerprints on it.
      As a matter of fact, Mrs. Williams had worn gloves when she was typing, and at which time she still had the gloves on that she used when typing the note.
      There is corroboration for the fact that Mrs. Williams typed the note, and that is the FBI laboratory was able to establish that the note was typed on a Brothers typewriter.
      One of Mrs. Williams's co-employees, interestingly one of the character references mentioned by Mr. Adams, informed the FBI that Mrs. Williams did, in fact, possess a Brothers typewriter. That this particular employee had borrowed and used it on numerous occasions within the last few months.
      When the employee attempted to borrow it again, she was told she no longer owned that typewriter.
      Jim Birges also, along with John Birges, gave us information about the other activities which Mrs. Williams undertook in connection with the conspiracy, consisting of helping in the construction of the bomb by helping to pack the dynamite. The dynamite was packed down by hand by John Birges, Sr., and by Ella Williams, in order to squeeze every last ounce in the available space in the bomb.
      She helped in loading rehearsals where she, along with John Birges, Sr., John, Jr., and James, would rehearse in getting the cart with the bomb up into the back of the van in which it was delivered, and back out of the van.
      She also participated in the aborted Dickup of the extortion money. In fact an accident that she had in the area of the aborted extortion attempt was one of the key pieces of evidence that initially pointed to these people.
      One other thing that might be noted on the ransom note, and the court has the note to examine: We allege that Mrs. Williams typed that note. We haven't alleged in the indictment exactly who composed the note, but the court has had the opportunity to listen to Mr. Birges speak here in court in his rather hulking English, and the court has had the benefit of Mr. Adams' rather extensive outline of Mrs. Williams's academic background and credentials.
      With those two factors in mind, I would ask the court to examine the note and ask itself who the evidence points to as the actual author of that note.
      Finally, as far as the weight of the evidence, again I'm aware of the cases that say that that is the least persuasive factor for the court to consider in setting bail, but sometimes that factor can be so persuasive that it gets rather significant. In Mrs. Williams's case it does. Mrs. Williams was arrested by agents of the FBI.
      She was informed of the charges against her and the other defendants. She was informed of the status of the FBI's investigation. She was advised of her Miranda rights, which she indicated that she understood. She indicated she understood those rights. She was asked by agents of the FBI if she wanted to make a statement. Her response was: Why should I tell you anything? You know it all already; I don't want any deals; I don't want any probation; I just plan to plead guilty and do my time.
      There could be very little that I could come up with in the way of more overwhelming evidence of guilt than from the statement of that person. She has clearly indicate her complicity.
      The arguments as to the seriousness of the offense have all been made in Mr. Birges, Sr.'s motion and the government would submit that the bail previously set in the amount of one million dollars cash or corporate surety is appropriate to the case and the defendant.

THE COURT: Thank you, Mr. Kane.
      Mr. Adams?

MR. ADAMS: Very briefly, Your Honor, I think it's appropriate for us to rest on the evidence I presented from the sources of the college professors, the two judges, the three probation supervisors, the Credit Union and the law college. I find myself in an unusual position presenting that kind of evidence in a bail hearing and having the government instead of the defendant relying on the testimony of a person who I will grant is not a perjurer but is only a charged co-conspirator.
      I think the court should carefully weigh all that testimony and also underscore the fact that the United States Attorney has said absolutely nothing in regard to all the other factors of much more paramount importance than the weight and circumstances of the offense.
      Thank you, Your Honor.

THE COURT: Mr. Adams, now, at this time Mrs. Williams is not employed and, since she resigned after she was arrested, I take it she doesn't have anything that she can go back to at this time?

MR. ADAMS: Thdt's correct, Your Honor. She would have to support herself through help from her parents and her children.

THE COURT: This indicates that she was the support of two other people; is that children or--

MR. ADAMS: I believe those are the children-- Are you referring to the financial affidavit, Your Honor? Is that correct?
      No, that doesn't refer to the children, Your Honor; that refers to Mr. Birges and his son.

THE COURT: That's all the questions I had. Thank you, Mr. Adams.
      We can either stop here or take about a three-minute or five-minute break. The next one would be Mr. Brown.

MR. PUZEY: Whatever Your Honor desires would be fine with me. Perhaps the reporter would like to have a rest.

THE COURT: That's why I need to stop. Can we return at 1:00? Is that too late?

MR. ATCHESON: Your Honor, I would prefer -- I don't know how lengthy Mr. Puzey is going to be -- I would prefer to have a short break and then go completely through the proceeding, because I have to be in District Court in Washoe County.

THE COURT: All right, Mr. Puzey?

MR. PUZEY: That's fine with me.

THE COURT: We'll take about a ten-minute break and come back and finish.

      (Whereupon a recess was taken.)

THE COURT: The next case is Willis Brown. Mr. Puzey is his attorney.

MR. PUZEY: Thank you, Your Honor.
      May it please the court, as we all know with regard to Mr. Brown, his bail is now set in the sum of a million dollars, which is an incredible amount of money considering what he has put down on his financial affidavit.
      He has a 1971 Matador automobile worth about $300, and he has some money with him in the Sparks City Jail, and that's what he has. And as Mr. Adams pointed out with regard to his argument for Mrs. Williams, we shouldn't tie Mr. Birges, Sr., and I'll use that name for purposes here, too closely with Mr. Brown.
      I've been provided by Mr. Brown with an affidavit which accompanies a Complaint issued from the Eastern District from California. And in that affidavit -- specifically, I get down to paragraph 4 -- it says that "John Waldo Birges and James William Birges refused two days before August 26th, 1980, to participate in putting the bomb in Harvey's Resort Hotel and Casino. But they did agree to participate in the drop of the money."
      Your Honor, I think we could take that to mean a few things with regard to Mr. Brown. What was his participation?
      His participation was, according to this affidavit -- and that's all it is -- this indicates here that "on the 24th of August, 1980, Mr. Birges, Sr., Mr. Brown and Mr. Hall left the Birges residence with the bomb in John Waldo Birges's van."
      And then, paragraph 6, it says, "on or about August 26th, 1980, John Birges, Sr., had Willis 'Bill' Brown and Terry Lee Hall place a bomb inside Harvey's Hotel and Casino."
      Apparently that's their involvement, Mr. Hall and Mr. Brown. And, now, we end up with some massive indictment from the Federal grand jury that said, these people were involved since the beginning of time back in June, but the affidavit we have here indicates their participation for some two days, if they can even prove that.
      Farther on in that same affidavit, after Mr. Brown was spoken to by the federal agents, he indicated that, yes, they drove up to Stateline; that, yes, the bomb was put in there, and then they left. There is no indication from Mr. Brown that he anticipated in participating at all with regard to receiving money from Harvey's. And I don't want to get into that. That will come out later, I'm sure, in a subsequent hearing of trial.
      There's no indication at all that Mr. Brown was involved in the note. There's no indication at all Mr. Brown was involved in the preparation of anything with regard to the bomb. The only thing we have is that Mr. Brown participated in putting the bomb in the casino and that's all.
      It doesn't say that he armed the bomb. It doesn't say that he prepared the bomb. The most that can be said with the evidence that we have now, is perhaps he wheeled the bomb into the place, period. That's it.
      I know we have to be concerned with the circumstances. Those are the circumstances. I don't think they can prove anything else. We've seen the Birges boys involved from start to finish, except they say, "No, we're afraid to do it now because" -- if we can believe one, at least one of them, because he perjured himself -- "we went right up to the point where we take the bomb into the place, and then we decided not to."
      Who got involved then? Mr. Brown and Mr. Hall. What kind of participation is that? What kind of participation? What is the nature and circumstance of that? They know nothing about the bomb. They know nothing about the note. They're not involved in any way with the Dreparation of the bomb. They simply drove a truck up there and wheeled the thing in.
      Mr. Brown has been divorced for approximately two years. He has three children, 21, 18 and 17. The younger ones still live with his ex-wife. He has three step-children, ages 27, 25, 23, all living basically in the Fresno area. Mr. Brown belongs to the labor union Local No. 294, Fresno, California, and he works as a laborer. As a matter of fact, he was working at the Elms Creek Project, the very place it's alleged that the dynamite was stolen from, and he had worked there for some four months prior to his arrest.
      Obviously, then, he wasn't working there when there was dynamite taken, because he's only been there for only some four months. He's employed by Granite Construction Company, Watsonville, California.
      At that project he's been a truck driver. And he's worked for Mr. Birges as a landscaper.
      When I asked Mr. Brown to describe his relationship with Mr. Birges, he indicated that it was an employee-employer relationship, and that he worked with Mr. Birges for several years in his various landscaping projects. But with regard to any social activity, or in regard to any closeness with Mr. John Birges, he doesn't have any. And there would be times where he would be out of touch with Mr. Birges for a long period of time.
      It's not that we have the Birges mob in here, and I don't want the court to understand that. As Mr. Wiener had indicated, people are now being treated as though they're already guilty. This is punishment, a bond of a million dollars. Just as well could be a billion or a trillion. There is no way that Mr. Brown could make any sort of a bond like that.
      It's impossible.
      Your Honor, Mr. Brown also does have quite an extensive arrest record. He did time for a dire act violation in 1949, and in 1949 he was also convicted of escape, finally released on parole. 1952, there was an assault with a deadly weapon where he did 60 days. There are other violations: traffic, misdemeanors, a sleeper from Caldwell, Idaho, apparently sleeping in a park. There was a battery in 1969, where he was fined some money and then probation for 90 days. There was an assault with a deadly weapon in 1977 -- that's the most recent one -- and that kind of a charge, assault with a deadly weapon, sounds pretty bad. He was fined $50, placed on probation for 12 months.
      There is no indication in this rap sheet that he's ever failed to appear. No indication at all. No FTA.
      Your Honor, I don't quite no how to say this. This is a massive case. It's a big case. It's important to this district, but let's look at it another way.
      I don't think the government would have to prove in a much smaller case, if you will, a dire act case, that case is not going to be any more difficult in trying this thing than some very small case that might appear in this court. We're talking about the size of the case only in a sense that there was such a massive amount of money involved: three million dollars.
      I think we should put things into perspective here, particularly with regard to Mr. Brown. Your Honor, I don't want to belabor the court with all kinds of good things that Mr. Brown has done, as happened with Mr. Birges or Mrs. Williams, because all that Mr. Brown has done all his life is worked hard. Good, hard worker, and he's supported two families, and he doesn't have anything to show for it.
      He's in the slammer and with a bail of a million bucks. Now, that's ridiculous, particularly when the indication from the Birges boys is that his participation was some two days, and then the Birges boys are going to go back and assume the position of Mr. Brown, and they'll participate in the three million dollars if they get it.
      There is no indication that Mr. Brown is going to participate.
      I get sort of discouraged when I look at a four- or five-count indictment that goes on from June clear through towards the end of August of last year, when Mr. Brown does just that little bit of contact with that situation that I've explained to you.
      Your Honor, I think that's about all I have to say. I would simply say consider his circumstances. He's not in the circumstance of Mr. Birges, Sr., He's not in the circumstance of Ella Williams. He's just Bill Brown, just a good, hard-working stiff, and it's important I think, Your Honor, that you consider that. That's all I have.

THE COURT: Mr. Puzey, when you come back, would you find out if Mr. Brown has a passport, and his date of birth and place of birth? You can respond.

MR. PUZEY: He doesn't have a passport. He was born in St. Joe, Arkansas, 1931 -- March the 14th, 1931.

THE COURT: Thank you.

MR. PUZEY: Two years of high school.

THE COURT: Mr. Kane?

MR. KANE: Thank you, Your Honor.
      Again, I'll adopt rather than repeat remarks made as to the previous defendants.
      As to Mr. Brown himself, the very center of this extortion attempt, the reason for Harvey Gross being asked to pay three million dollars, was the fact that a bomb had been placed in his casino. So to say that one of the people who placed the bomb there was only peripherally involved seems to me rather ridiculous.
      Mr. Brown did give a full statement to the Federal Bureau of Investigation following his arrest. And, after being advised of his Miranda rights, the statement is important in several respects, first of all, it shows that he wasn't just wheeling a thing into Harvey's Hotel Resort & Casino. He had been told by Mr. Birges, prior to delivering the device, that it was a bomb and what it was to be used for.
      He was not to share in any significant way in the ransom. His payment, and that of Mr. Hall, according to Mr. Brown, was to be $2,000 apiece in their role in delivering the bomb, but he was a stakeholder in the ransom attempt.
      He stated that Mr. Birges told him he would be paid when Mr. Birges collected the ransom. So while he was not to be a major shareholder in the ransom, his participation, his share of the proceeds, was to be dependent on the collection of the ransom.
      Without going into a great deal of argument on conspiracy law, I know that the court is well aware, no matter when you join a conspiracy, if you join it you're responsible for all the action of that conspiracy in the eyes of the law. So that Mr. Brown's rather late involvement in the conspiracy may be a factor at time of sentencing, but it does not relieve him of liability at this point.
      As to Mr. Brown's prior record, counsel admitted that it goes back quite a few years. I think one of the most interesting things about it is that there are only two significant gaps. There were no arrests between 1970 and '74 and none between '77 and his arrest on this charge.
      Other than that, it's fairly constant since 1949, 1951, '52, '53, '55, '57, '59, '63, '65, '69, '70, '74, '75 and '77. So Mr. Brown has never gone for any significant period of his adult life without being in trouble with the law. There was much mention made that his only significant conviction was his dire act in 1949. I agree that is a significant conviction, because while counsel pointed out that Mr. Brown has no previous failures to appear, he did not point out that the only time that Mr. Brown has been sentenced to any substantial term of incarceration was back in 1949, he served exactly two months and one day before he escaped.
      He was then returned to custody, and he wasn't released until April the 18th, 1951. By my math that is almost a total of 18 months. It doesn't indicate he was given any time off for good behavior; it does indicate he was given time, and he has been sentenced to certain periods of incarceration since then up to 60 days in county jail on several occasions.
      A lot of his arrests are for drunk and disorderly, things like that, but there are several with assault with a deadly weapon or battery or dangerous violent offenses, and I think the court should consider that.
      Finally, I think the most significant thing for the court to consider is in regard to the weight of the evidence. Mr. Brown's full and complete confession to the FBI following his arrest. Nowhere in that confession does he claim, as counsel has claimed on his behalf, that he was a pseudo-innocent participant in this thing.
      He knew he was delivering a bomb. He willfully took part in that. He was to share in the ransom. And the only thing that separates him, in my mind, in terms of culpability, from Mr. Birges, Sr., is that he wouldn't have the expertise necessary to plan this thing out from the beginning.
      Jimmy Birqes had also made statements to us with regard to the new attempt that was going to be made on the anniversary date, and the people who were to be involved in that attempt were to have been paid $400,000 a piece. Mr. Birges said that would guarantee that this would keep their mouths shut.
      He wasn't going to pay them on the cheap like he did the last time. So that I think the weight of evidence against Mr. Brown, and not the evidence of a perjurer or the evidence of an interested party, but the evidence coming out of his own mouth certainly indicates that the evidence is strong against him. And I think in view of that and in view of his prior record and in view of the circumstances of this offense, the amount of bail set, while certainly higher than that set in most caces, is appropriate. This is not most cases.

THE COURT: Mr. Puzey?

MR. PUZEY: Very briefly, Your Honor, and I forgot to point out when I was up here prior, Mr. Brown has also served some time in the Air Force. I should point that out.
      He entered the Air Force at the age of 15 years of age. Received a general discharge at the age of 17. The reason for the general discharge was because of the age when he entered the Air Force.
      Your Honor, I would point out we've talked a lot about this extortion note, and it says, "Warning: I repeat do not try to move, disarm or enter," this thing about the bomb. Perhaps Mr. Brown knew that there was a bomb, but don't you think, if he knew something about this note, that he would be assured that nothing would happen to the bomb? Wouldn't he be assured that nothing is going to happen? "We're going to take it in the place and nothing will happen; nothing will explode." That's his participation.
      Finally, Your Honor, with regard to the types of crimes charged in the rap sheet that we have. As Mr. Kane pointed out, the vast majority of those charges are alcohol-related offenses. I think both he and I pointed out the significant charges. That's all I have.

THE COURT: All right. Thank you, Mr. Puzey.
      The next case will be Mr. Terry Hall. Mr. Atcheson?

MR. ATCHESON: Thank you, Your Honor.
      I think Section 3146 Title 18 compells me to address what I think is important in descending order the way it's presented within the statute.
      Regarding Mr. Hall's family ties, things of that sort, just to advise the court, his former residence, 4515 East White Street, he no longer lives there because after his arrest he was forced to give up that residence. He had lived there for one and a half years with his wife and child, Terry Lee Hall, Jr.
      He was educated in Fresno, California. His date of birth is 2/15/56. His age at this time is 25 years of age. Apparently, he was 24 years of age at the time of the alleged incident. His mother lives at 331 Beechwood in Fresno, California. Her name is Laura. She is purchasing her house.
      His father is deceased. He has sisters that live in Chowchilla, California, which is in the Fresno area, approximately 30 miles from Fresno. He has brothers in Fresno who live with their mother at that same address.
      His wife presently resides at 926 North Jackson. That's in Fresno, California. Her name is Juanita. Her child lives with her, Terry Lee Hall, Jr., two years of age, and both of these individuals were supported by Mr. Hall up to the time of his arrest.
      Regarding financial resources and employment, I think those are more or less the same. The affidavit would indicate that he has minimal financial resources. Inasmuch as apparently he has to solely rely on his ability to work through the labor union, which is the Laborers Union 294 in Fresno, California.
      He was working up to the time of his arrest on August 16th, 1981, and has been in jail ever since that time.
      The issue regarding conviction and his prior record, the court is aware -- I imagine the court has been furnished with some sort of a printout from the FBI, Federal Bureau of Investigation, indicating that he has several arrests dating, I believe, from 1974. Is the court in possession of that document?

THE COURT: No, I don't have such a thing, Mr. Atcheson.

MR. ATCHESON: He has had two felony convictions, one for burglary and one for forgery. Neither of which involve alleged crime which would lead to the type of violence of this sort which is in question in this case.
      I think it's important to note, if Your Honor had an opportunity to look at that rap sheet, that there is no escape or failure to appear allegation contained pertaining to Mr. Hall. I think the government is entitled under the statute, and I think it's fairly clear that the government is entitled to use prior convictions as a sword against any sort of reduced treatment or better treatment in a bail context.
      The defense, as well, is entitled to use any lack of an escape charge or a failure to appear as a shield to prevent excessive consideration on that factor as well, keeping in mind a desire to prevent increased burdens upon people who have been convicted and have paid their price to society, so to speak, as Mr. Hall has done.
      We get back, of course he made, there's an indication in his rap sheet that he's made all of his appearances and things of that sort. So we're confronted with trying to determine, I believe, whether or not the government in this case simply reached up and plucked the figure of a million dollars out of the air as it pertains to Mr. Hall.
      It's my belief that that's exactly what was done in this case. I think it's a frivolous, exorbitant, unique bail given the character, the context and the family ties of this person, and I think we can see that if we just compare the setting of bail with the two Birges boys, who apparently, by the government's claim, have been deeply enmeshed and involved with this situation from its onset and throughout the whole investigation.
      Apparently they were. The people that, at least one of whom, who were making perjured statements and things of this sort, apparently a bail was plucked out of the air for them and set in the amount of $50,000. The relative culpability between the two probably, at least, isn't any different between Mr. Hall and the two Birges boys.
      I would think that it is unfortunate for this court to be confronted with a case that's so highly publicized, and perhaps a case where it would be very easy or perhaps expedient for a bail consideration in this matter to be very harsh. But I think a bail set in the amount of one million dollars is, in effect, no bail according to Mr. Hall's circumstances, I think it's no bail of any sort.
      The only consideration that this court could give to Mr. Hall is some sort of a personal recognizance bond, or some sort of a bond on a personal appearance bond such as what was granted to the Birges boys in the amount of $50,000, inasmuch as apparently he was in roughly the same sort of financial situation as they were.
      I don't know exactly what the government's claim is against Mr. Hall at this time. I haven't see the body of evidence. I have heard what has been put forth to the court, and certainly if we're to examine two different settings in this matter, that for the Birges boys and that for Mr. Hall, I think it's appropriate to give Mr. Hall no more severe treatment than was given to the Birges boys.
      Mr. Hall has no Dassport, never has had a passport. He only knows one family, and that's the family in Fresno, California. Now, I imagine the prosecution in this case is going to argue that, well, these people aren't local. We have a Fresno family. We have no contacts with this community. Understand that there is a proceeding in this district against the Birges people that as well are involved with Fresno, California. They have family ties in Fresno, California, and have no ties that I know of in this jurisdiction. So if we're going to give the same consideration, logically, then I think Mr. Hall ought to receive the same sort of consideration in a bail setting that the others received.
      There is no indication that I can see that he is a risk of flight. Any allegation of continued danger, or increased danger to the community is premature, inasmuch as the statutes require no consideration of that factor, or any allegation to that factor, prior to any conviction or save and except an appeal situation.
      I think that there is no logical differentiation between the bail imposed on Mr. Hall and the bail imposed on the others, who I believe are in a more culpable situation. Mr. Hall simply has no place to go, no means to accomplish a successful flight from posted prosecution in this case.

THE COURT: When you come back, Mr. Atcheson, will you let me know the place of his birth?

MR. ATCHESON: He was in Fresno, California for 19 years.

THE COURT: Mr. Kane?

MR. KANE: Thank you, Your Honor. For the last time, Your Honor, I would adopt the remarks made with regard to the bail settings of the prior defendants.
      I'd also note for the court that, prior to the hearing, I lodged with the clerk of court a copy of the ransom note delivered to Harvey's, as well as the FBI record sheets on Mr. Willis Brown and Mr. Terry Lee Hall, so they should be available.

THE COURT: I found them after I told him I didn't have it. Thank you.

MR. KANE: As to Mr. Hall, the record is as significant as Mr. Brown's. The government contends what it lacks in length it certainly makes up for in severity.
      These arrests are not for minor offenses, such as sleeping or being drunk in public; they're for driving and being under the influence of narcotics, for receiving stolen property, for burglary and for hit and run resulting in death or serious injury. The last conviction noted was in 1976, and reflected a term of confinement of seven years.
      As to the weight of the evidence against Mr. Hall, he was identified in the confession given by his co-defendant, Willis Brown. He was also identified in terms of his participation from a photo lineup and by a personal viewing by Jimmy Birges, that is the non-perjurer charged Birges brother.
      The bai1 setting in this case requested by the government is attacked as exorbitant, as frivolous, and something that we just picked out of the air. Insofar as "exorbitant" means "high," it certainly is, and insofar as "exorbitant" means "unnecessarily high," we contend that it certainly is not.
      As far as "frivolous," there is nothing about this case, that I'm aware of, that is frivolous. At least, of all the bail settings for these defendants as far as being picked out of the air, it appears, as usual, the government is damned if it does, damned if it doesn't.
      If the government requested bail in an equal amount for Mr. Birges, Mrs. Williams, Mr. Hall and Mr. Brown, we would have been accused of simply shotgunning, not taking into account the relative roles of the people in the conspiracy. Since we asked for a higher bail on Mr. Birges and a lower bail on Mrs. Williams, Mr. Brown and Mr. Hall, realizing they're subordinate, but nevertheless essential roles in the conspiracy, we're still accused of picking a figure out of the air.
      Careful consideration was given to all of the bails. The government requested all of them because they felt they were appropriate.
      The last thing I would like to address is the charge that Mr. Hall is entitled to the same consideration on bail as Jimmy and John Birges, Jr.
      Jimmy and John Birges, Jr., were released on a $50,000 unsecured personal recognizance bond. We hear again and again and again, every time defense counsel argues a bail motion, that the reason for bail is to secure the attendance of people at trial.
      There is no doubt in my mind that Jimmy Birges and John Birges, Jr., are going to appear at every proceeding in this matter.
      To begin with, Jimmy Birges was never under arrest at the time he came in and gave a complete confession as to his involvement and the involvement of all the other people he knew about in this incident.
      This was without promise of any reward, leniency, or anything else.
      John Birges was under arrest only for a charge of misstatement to the grand jury. He, nevertheless, also gave us a complete confession naming himself, his brother, his father, Ella Williams, and everyone else that he knew about that was involved in this. So that both of these people indicated from the outset a desire to cooperate, a desire to see that justice was done.
      We received no offers of testimony or information from Mr. Brown or from Mr. Hall. Mr. Hall, in particular, has made no statement whatsoever.
      So that I think that by their demonstration of good faith, regardless of whether negotiations are appropriate to a court's consideration of bai1, it is certainly appropriate for the United States Attorney to consider what is the likelihood of these people not showing up.
      And in terms of human common sense, what kind of sense would it make for someone like Jimmy Birges, who is not under arrest, who there is insufficient evidence on to do anything to, to come in and completely confess to a crime like this, implicate members of his immediate family, and then flee? Certainly that is something that he could have done at some earlier time.
      So the bail settings that were requested for Jimmy Birges and John Birges, Jr., were based not on the fact that they are witnesses for the government, but the fact that they pose no significant flight risk.
      The bails that were requested for Mr. Brown, Mr. Hall, Mrs. Williams and Mr. Birges, Sr., reflect the opinion that, under the circumstances of the case, we do consider them substantial flight risks. They are not frivolous amounts; they are not amounts that we picked out of a hat. They are amounts that the government considers appropriate, and that we would ask the court to retain.

THE COURT: Thank you.
      Mr. Atcheson?

MR. ATCHESON: Mr. Hall was born in Woodland, California, Your Honor.

THE COURT: Thank you.
      Do I take it from what I have on the affidavits that Mr. Hall is the son-in-law of Mr. Brown?

MR. ATCHESON: Yes. In listening to the response of the government to this issue, first I listened to him make statements, very conclusionary statements, that careful consideration was made.
      There was no statement of what was behind that consideration. Everything was conclusionary in the response. The fact that the government has no doubt that the Birges boys will appear at any future proceeding when they're required to appear by the government should apply no less to Mr. Hall, if not for the simple fact that there was some mention of threats, possible threats made, by Mr. Birges, Sr., earlier in the hearing against those who would testify against him.
      That would give, I imagine, the Birges sons some substantial concern, if that logic were to be carried through, and they might not want to stick around the Fresno area, and might want to leave, if we were to accept what the government stated earlier.
      I am rather shocked to hear the fact that Mr. Hall chose to take his Fifth Amendment right against making any statement when the authorities first confronted him, and up to this point in time, should somehow be used as a sword against him in denial of an appropriate bail setting in this matter.
      In short, we have a request for a million dollars bail, and I think it's appropriate for the court to see if that's the minimum amount of bail set which would ensure his appearance. Well, of course it will; it will ensure his appearance because he'll never be able to post it, as will none of the other individuals. So where do we draw the line? Can we impose restrictions on his travel? Can we do things of that sort, inasmuch as he's basically penniless?
      Short of requiring him to spend the rest of the time during his prosecution either in the Sparks City Jail or in Yerington, and given the mandate of Congress to keep people prior to conviction out of jail so they don't have to suffer the consequences, given that mandate, I haven't heard any tangible, objective facts on the part of the government that should require any different treatment of Mr. Hall.
      And I think that it's obvious that what has been done up to this point is not justified, and I think that that is the reason for hearings such as this: so we can explain the factors that should require a much reduced bail in this situation.

THE COURT: All right. Thank you, Mr. Atcheson.
      Is there anything further to come before the court at this time?

MR. KANE: Not on behalf of the United States, Your Honor.

THE COURT: Court will be in recess.