
    UNITED STATES of America, Plaintiff-Appellee v. Andrew Graves GLADNEY, Defendant-Appellant.
    No. 08-1612.
    United States Court of Appeals, Eighth Circuit.
    May 1, 2008.
    Howard J. Marcus, US Attorney’s Office, Eastern District of Missouri, argued, St. Louis, MO, for Plaintiff-Appellee.
    Natt Scott Rosenblum, Rosenblum & Schwartz, argued, St. Louis, MO, for Defendant-Appellant.
    Andrew Graves Gladney, St. Louis, MO, pro se.
   JUDGMENT

The district court’s order granting the government’s motion to detain the defendant in this case without bail pending his trial is affirmed.

ARNOLD, Circuit Judge,

dissenting.

The Eighth Amendment to the Constitution provides that “Excessive bail shall not be required,” and this principle has special force when bail is denied altogether. The statute at issue here, as relevant, provides that a person charged with a crime may be detained “[i]f ... the judicial officer finds that no condition or combination of conditions will reasonably assure ... the safety of any other person and the community,” 18 U.S.C. § 3142(e), and this determination must “be supported by clear and convincing evidence,” 18 U.S.C. § 3142(f). In my view, the district court erred here as a matter of law because clear and convincing evidence does not support the determination that conditions of release imposed on Mr. Gladney would not effectively restrain his activities.

Most of the evidence that the district court used to reach its conclusion was hearsay. While such evidence is admissible under the statute, see id., its weight must be limited for the same reason that it is usually inadmissible, namely, its unreliability. The district court’s reliance on the facts underlying a previous charge against Mr. Gladney that was dismissed because of a “credibility problem” with the prosecuting witness is also dubious, and Mr. Glad-ney’s wife’s assertions are equally suspect because the record shows conclusively that she lied at least twice about matters highly material, indeed critical, to the question of whether Mr. Gladney posed a risk to anyone’s safety. Finally, the letters that Mr. Gladney has written from jail are indeed angry, and it was extremely imprudent and impolitic of him to have written them, but they do not in my mind contain threats against anyone.

In short, the record evidence does not provide clear and convincing proof that there are no conditions of release that will assure the safety of some person or the community. The district court should have bailed Mr. Gladney and laid him under a strict condition that he not have any contact whatever with his wife, her family, or his alleged victim under pain of having his bail immediately revoked.

I therefore respectfully dissent.  