769 F.2d 243 (5th Cir. 1985), 85-1403, United States v. Fortna

Docket Nº:85-1403
Citation:769 F.2d 243
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Albert Samuel FORTNA, Jr., Defendant-Appellant.
Case Date:August 12, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 243

769 F.2d 243 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Albert Samuel FORTNA, Jr., Defendant-Appellant.

No. 85-1403

United States Court of Appeals, Fifth Circuit

August 12, 1985

Page 244

[Copyrighted Material Omitted]

Page 245

Jackson, Sorrels, Shapiro & Anton, Frank Jackson, Bruce Edward Anton, Dallas, Tex., for defendant-appellant.

Marvin Collins, U.S. Atty., Robert R. Smith, Jr., Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Albert Fortna, Jr. appeals to this Court, under 18 U.S.C. Sec. 3145(c), 28 U.S.C. Sec. 1291, and Fed.R.App.P. 9(a), from the order of the district court affirming Fortna's pretrial detention without bond under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141, et seq. We affirm.

PROCEEDINGS BELOW

Fortna was among several individuals arrested without a warrant near the Dallas airport on April 23, 1985 on a complaint charging an ongoing conspiracy, in, among other places, the Dallas Division of the Northern District of Texas, to import 700 kilograms of cocaine into the United States from Colombia in violation of 21 U.S.C. Sec. 963. He and the others were brought before a magistrate for the Dallas Division of the United States District Court for the Northern District of Texas on April 24, 1985. 1 The magistrate informed each defendant of the offense for which he had been arrested, read him the complaint and ascertained that he understood it. He also advised them of their rights. He ascertained that Fortna was not represented by counsel, but intended to retain counsel. 2 The magistrate advised that he was going to set a preliminary probable cause hearing on April 29, and then concluded by stating as follows:

"Now, the final matter that I want to go into here this morning is the matter of bond. In each of your cases I am going to schedule the matter for a detention hearing. I will schedule the detention hearing on April the 29th, 1985, at the conclusion [of] the preliminary hearing, and at that time I will hear from you and your attorney as to any facts and circumstances which warrant your release on bond and the

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amount of bond that you are capable of posting. I will also hear from the Government at that time concerning any reasons as to why the bond amount should be set higher than that which your counsel may recommend or why bond should be denied in your case.

"At the conclusion of the case of the hearing as to each of the defendants, I will either set a bond amount that you are financially capable of posting, or if I find that the bond which you are capable of posting is either insufficient to insure that you will make all of your appearances as you are ordered to appear or that such bond amount is insufficient to insure that you will not pose a danger to any other persons or to the community, in either event I would find and order that you be detained in custody until this case is disposed of.

"...

"... [A]nd at this time I will remand each of the defendants to the custody of the United States Marshal Service pending the hearing before me on April the 29th at 4 p.m." (Emphasis added.)

On April 29, the probable cause-detention hearing commenced before the magistrate, with Fortna and the other defendants present and represented by counsel. At the commencement of the hearing the magistrate announced:

"The purpose of the hearing here today is to conduct a preliminary hearing and also a detention hearing to determine whether or not any defendants in which cases there are found to be probable cause should be released on bond or detained, pending disposition of the case."

The hearing was conducted on April 29, April 30 and May 1. On April 30, the magistrate announced that he found "that there is probable cause to believe each of the defendants has committed the crime with which he is charged in the complaint that is before the Court." The hearing thereafter focused only on the other detention considerations, but the magistrate made it clear that the probable cause evidence was considered for this purpose also. At the conclusion of the hearing on May 1, the magistrate announced in open court that he would deny Fortna bond, and that his written reasons would follow.

Also on May 1, the grand jury for the Dallas Division, Northern District of Texas, returned a one-count indictment charging Fortna and the others with conspiracy, in that division and elsewhere, to import approximately 700 kilograms of cocaine into the United States from Colombia, in violation of 21 U.S.C. Sec. 963. This charge was essentially the same as that in the complaint.

The magistrate filed his written findings and order on May 2, directing that Fortna be held without bond pending trial. 3 He found:

"[N]o clear and convincing evidence to establish that if released on bond the Defendant [Fortna] would pose a serious danger to the physical well-being of any person.

"However, it is clear from the evidence before the magistrate that the Defendant poses a serious non-physical danger to other persons and to the community. As noted above the Defendant is one of the major principals of an organization which has dealt in large quantities of cocaine and marihuana imported and intended to be imported into the United States. Based upon Fortna's own statements and those of his co-conspirator Harnage it is clear that this organization has well-placed sources in foreign countries for high-purity cocaine as well as marihuana. It is also clear that this organization has invested millions of dollars in this enterprise.... [T]he 700 kilograms of cocaine which were intended to be imported would have had a market value to major drug distributors located within the United

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States in excess of $32,000,000.00.... As noted above Fortna and Harnage had previously invested $1,700,000.00 in a marihuana deal which was thwarted by law enforcement officers.

"....

"The evidence before the magistrate demonstrates that Fortna is the head of an organization whose principal enterprise is the illegal importation of controlled substances. As noted above, the conspiracy has taken significant, sophisticated efforts in an attempt to avoid [detection] or infiltration of the illegal scheme by law enforcement agencies. Further, even in those instances where seizure and arrests have impeded the overall scheme, Fortna and his associates have simply retrenched and redirected their efforts to continue importing illegal substances. Such evidence is clear and convincing and establishes that were Fortna to be released on bond, no amount of amount will reasonably assure that Fortna will not continue illegal trafficking in massive quantities of controlled substances, including cocaine and marihuana." (Emphasis added.)

The magistrate's memorandum does not expressly speak, one way or the other, to whether any bond or other condition or combination of conditions would reasonably assure Fortna's appearance, nor does it acknowledge the absence of an express ruling on that matter.

On May 10, Fortna filed with the district court, pursuant to 18 U.S.C. Sec. 3145(b), his motion "to revoke or amend" the magistrate's May 2 order, requested "a hearing de novo on this" and that the district court "grant this defendant reasonable bail."

The district court heard this motion on June 5. The court observed that it had read the entire record of the proceedings before the magistrate, but would hear further evidence if desired. Fortna's counsel introduced documentary evidence, principally concerning Fortna's net worth and investments in real estate, mostly in the area of Tampa, Florida where his home was. When the hearing concluded that day, the district court took the matter under advisement.

On June 12, the grand jury for the Northern District of Texas, Dallas Division, returned a twenty-six-count superseding indictment against Fortna and the others. The first count charged Fortna and his co-defendants with essentially the same conspiracy to import cocaine as did the complaint and the superseded May 1 indictment, except this time the quantity was 1,000 kilograms. The remaining twenty-five counts alleged substantive offenses, and in fourteen of these counts Fortna was charged either with travel in interstate commerce to promote and thereafter promoting the cocaine conspiracy contrary to 18 U.S.C. Sec. 1952 or using a communications facility to facilitate the cocaine conspiracy contrary to 21 U.S.C. Sec. 843(b).

On June 14, the district court issued its memorandum ruling affirming Fortna's pretrial detention without bond. The ruling states that "the Court finds, as did the Magistrate, that Defendant poses a serious 'non-physical danger' to other persons and to the community." The court agreed with the magistrate that Fortna "was a principal actor in a sophisticated drug-dealing organization" and that if "released he would likely return to the illegal but lucrative business of drug dealing. Such dealing poses a substantial serious danger to the public's well being and certainly justifies his detention." The court continued by stating:

"In addition to affirming the Magistrate's finding, the Court would supplement it by holding that Defendant [Fortna] also poses a physical danger to persons in the community. Unquestionably, drug abuse does violence to one's physical being.

"Moreover, the Court further finds that Defendant poses a serious risk of flight if released on bail. There was strong evidence before the Magistrate from which he could conclude that Defendant's foreign connections, persistent drug dealings, and rather substantial...

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