779 F.2d 1467 (11th Cir. 1985), 85-8884, United States v. Hurtado

Docket Nº:85-8884.
Citation:779 F.2d 1467
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Antonio Jose HURTADO, Mark Anthony Olson, Diego Alonzo Flores-Soto, Hector Albert Rua and Jose Pita Andrade, Defendants-Appellants.
Case Date:December 19, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1467

779 F.2d 1467 (11th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Antonio Jose HURTADO, Mark Anthony Olson, Diego Alonzo

Flores-Soto, Hector Albert Rua and Jose Pita

Andrade, Defendants-Appellants.

No. 85-8884.

United States Court of Appeals, Eleventh Circuit

December 19, 1985

Page 1468

Edward T.M. Garland, Atlanta, Ga., for Hurtado.

John A. Nuckolls, Atlanta, Ga., for Flores-Soto.

Robert G. Jones, III, Columbus, Ga., for Hector Albert Rua.

Mark King Leban, Miami, Fla., and Lawrence S. Katz, Miami Beach, Fla., for Andrade.

Richard C. Hagler, Columbus, Ga., for Olson.

William P. Adams, Asst. U.S. Atty., Macon, Ga., for U.S.

Appeal from the United States District Court for the Middle District of Georgia.

Before FAY, JOHNSON and CLARK, Circuit Judges.

MEMORANDUM AND ORDER.

JOHNSON, Circuit Judge:

This matter makes it appropriate that we render for this Circuit a first interpretation of the provisions of the Bail Reform Act of 1984, 18 U.S.C.A. Sec. 3141 et seq. (1985). For the reasons stated herein, we find that the petitioners have demonstrated procedural error sufficient to require that we GRANT the motion for review of the order below and that we REVERSE and REMAND this matter for further consideration in light of the principles we today articulate.

I.

In August of this year a light airplane arrived at the airport in Sylvania, Georgia. Federal law enforcement officials had information suggesting that this plane was to be used by petitioner Mark Olson, an American citizen with no permanent address, to import a large quantity of cocaine from Colombia. Olson had been observed in Sylvania that day behind the wheel of a car rented on a charge plate issued to the brother of petitioner Antonio Hurtado, a citizen of Colombia. On August 26, 1985, Olson had been observed in the company of petitioner Diego Flores-Soto, also a Colombian, in a Sylvania motel room. On the

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prior evening several calls were placed to Colombia on the phone in that room. After the meeting Olson departed in the plane, while Flores-Soto travelled by automobile to Albany, Georgia, where he was observed meeting with petitioners Hurtado, Jose Andrade, and Hector Rua. Andrade is Brazilian but lives in Berkeley, California; Rua is a resident of New York and was born in Colombia.

On the following day Rua and Flores-Soto drove to a rural area near Fort Gaines, Georgia. At 8:30 p.m. agents of the U.S. Customs Service observed the landing of the light aircraft, in which Olson had earlier departed, in a peanut field near Fort Gaines. This plane had been tracked from a point over the Atlantic Ocean and was flying at a low altitude. Upon landing, the pilot fled the craft. Inside, federal agents found 630 pounds of cocaine.

During the course of that evening Flores-Soto and Rua were arrested in Fort Gaines, Olson was arrested at a roadblock near the peanut field, and Hurtado and Andrade were arrested in Albany. Other defendants, not currently before this Court, were also arrested.

On the next day, August 28, 1985, the five defendants were brought before a United States Magistrate. At that initial hearing the government entered a motion for a detention hearing consistent with the Bail Reform Act, save that the government sought to have the hearing scheduled "not sooner than three (3) working days" from the first appearance. 1 Petitioner Hurtado was represented by counsel at this proceeding. The other defendants all stated a desire for the assistance of counsel and all save Olson, who requested a court appointed attorney, indicated that they would secure private representation. Hurtado's lawyer suggested that the hearing on pretrial detention be held on September 4 or 5 so that other attorneys could be retained and an interpreter made available for the several defendants not fluent in English. The magistrate set the hearing date for September 5, 1985--nine days after the initial arrests.

On September 4, one day prior to the scheduled pretrial detention hearing, the five petitioners in this action were indicted on four counts: conspiracy to import cocaine in violation of 21 U.S.C.A. Sec. 963; conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 846; importation of cocaine in violation of 21 U.S.C.A. Secs. 952, 960 and 18 U.S.C.A. Sec. 2; And possession of cocaine with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1) and 18 U.S.C.A. Sec. 2. Each count carries a possible prison term of twenty years.

On September 5, 1985, the magistrate ruled that, because the defendants had already been indicted, the government had made a showing of probable cause adequate to justify detaining the defendants pending trial under 18 U.S.C.A. Sec. 3142(e). 2 Upon showing of probable cause that a defendant committed certain drug-related offenses the statute creates a rebuttable presumption that the defendant would flee if released and accordingly permits

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pretrial detention. The magistrate found that, under the terms of the statute, detention was justified due to the nature of the charges as involving drugs and the complete absence of ties to the community. 3 In his opinion the defendants had failed to meet their burden of coming forward with some evidence to rebut this presumption. 4 However, the magistrate denied petitioner Andrade's request to subpoena two agents of the Drug Enforcement Administration, who were to testify that Andrade was elsewhere and had no contact with the other actors in the alleged conspiracy, on the grounds that this was an attack on the indictment, rather than on the need for detention. Andrade argues that this made the presumption of flight irrebuttable.

The magistrate also rejected defendants' complaint that the hearing was untimely held in violation of Section 3142(f), which statute requires that the pretrial detention hearing "shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government seeks a continuance" which in no event may take place more than five days after the first appearance except "for good cause." In this case eight days had elapsed. The magistrate ruled that the need to obtain private counsel and to secure an interpreter justified the delay.

The detention order was signed by the magistrate on September 6 and filed with the clerk on September 9. The clerk failed to send copies to defendants' various counsel.

On September 12 the defendants were arraigned before the United States District Court for the Middle District of Georgia. The question of pretrial detention was not raised. On October 3, petitioner Andrade submitted to the court, under the provisions of 18 U.S.C.A. Sec. 3145(b), a motion to revoke and amend the Oral Detention Order entered on September 6.

The trial court entered a final Order of Detention under Section 3142(e) on October 31. That decision neither adopts explicitly the factual findings of the magistrate nor makes independent findings of fact to support its conclusion. Andrade's motion to revoke and amend the magistrate's order was simply denied on the grounds that "no condition of release or combination of conditions will reasonably assure the appearance of the defendants...." Andrade then filed the instant motion with this Court. The other four join in that motion. This case is slated for trial on January 27, 1986.

II.

This case presents us with our first opportunity to consider the scope and effect of the Bail Reform Act. We have yet to consider which standard of review is appropriate in considering appeals under that Act. Our brethren on the other circuit courts of appeals are sharply split on this question. Three circuits have held that the

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review of a district court finding that pretrial detention is appropriate is governed by the clearly erroneous standard. United States v. Fortna, 769 F.2d 243, 250 (5th Cir.1985) ("[W]hen we review the district court's order, whether it be the initial order or one issued in response to a motion to revoke or amend ... our scope of review is limited, and the order is to be sustained 'if it is supported by the proceedings below.' "); United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985) (on appeal court must "consider whether in light of defendant's evidence, it was clearly erroneous for the district judge to determine that he did not present a danger to the community or a risk of flight."); United States v. Williams, 753 F.2d 329, 333 n. 12 (4th Cir.1985) ("[D]eference [to trial judge] cannot be total, it cannot insulate from correction findings supported by no evidence or by evidence so lacking in merit as to render the district judge's decision clearly erroneous.").

Five circuits have held that appellate review is plenary and independent, at least as to mixed questions of law and fact, while according due deference to the trial court's purely factual findings. United States v. Maull, 773 F.2d 1479, 1487 (8th Cir.1985) (en banc ) ("We believe that in review under section 3145 the clearly erroneous standard should be applied to factual findings made by the district court.... However, conclusions and reasoning relating to the ultimate questions flowing from such factual considerations ... should be the subject of independent review."); United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985) (decision to detain based on factual findings but presents "mixed question of fact and law" which "transcends the facts presented.... * * * We hold that the applicable standard of review for pretrial detention orders is one of deference to the district court's factual findings, absent a showing that they are clearly erroneous, coupled with our right of...

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