U.S. ex rel. Garcia v. O'Grady

Decision Date20 February 1987
Docket NumberNo. 86-2559,86-2559
Citation812 F.2d 347
PartiesUNITED STATES of America, ex rel., Alvaro GARCIA, Petitioner-Appellee, v. James F. O'GRADY, Sheriff of Cook County, Respondent-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Karen Dimon, Asst. State's Atty., Chicago, Ill., for petitioner-appellee.

Edward Mogul, Chicago, Ill., for respondent-appellant.

Before POSNER, COFFEY, and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Respondent-appellant James F. O'Grady, Sheriff of Cook County, Illinois, appeals the district court's grant of a writ of habeas corpus to Alvaro Garcia, petitioner-appellee, 643 F.Supp. 922 (1986). We reverse.

I.

On September 24, 1985, petitioner Alvaro Garcia, along with Wilfredo Noriega and Miguel Fleites, was arrested and charged with delivery of a controlled substance, Ill.Rev.Stat. Ch. 56 1/2, Sec. 1401, and calculated criminal drug conspiracy, Ill.Rev.Stat. Ch. 56 1/2, Sec. 1405(b). At a bond hearing held on September 25, 1985, after hearing some 29 pages of transcribed testimony, the Circuit Court of Cook County, Illinois set bond at $12 million. 1 On October 3, 1985, a second bond hearing was held to consider Garcia's motion for a reduction in bond. At both hearings testimony was offered that: Garcia, now a naturalized United States citizen originally immigrated from Colombia, South America, lived and worked in Miami, Florida, some members of his family still resided in Colombia, and Garcia not only frequently travelled to Colombia but was also building a house there.

At the September 25, 1985, bond hearing at which Garcia was represented by counsel, Officer Stanley A. Turner of the Chicago Police Department testified that Garcia was involved in a multimillion dollar drug conspiracy that stood to make over $14 million with him alone in Chicago. 2 Turner stated that Garcia had agreed to sell him two kilograms of cocaine for $85,000 3 and that the two of them had discussed future dealings in which Garcia explained that he anticipated supplying Turner with "at least six to seven kilograms of cocaine, one every week, preferably on Thursdays." 4 Turner also testified that Fleites, one of Garcia's confederates, who was arrested with him, had stated that they were also trafficking in narcotics in the cities of New York, Miami and Chicago and that Fleites on one occasion had to kill a person because of a problem in a drug transaction and intimated he would kill Turner or his partner if he discovered they were law enforcement officers. 5 The police report detailing Garcia's arrest states that the cocaine in Garcia's possession had a street value of $607,722. Although Garcia denied at the second bail hearing having discussed the sale of drugs with Officer Turner, he did nothing to controvert at the first or the second hearing the government's testimony that he had no contacts with Illinois much less the city of Chicago.

At a subsequent bond reduction hearing a little more than a week later, on October 3, 1985, in which the trial judge heard 58 pages of transcribed testimony, the circuit court reduced Garcia's bail bond from $12 million to $607,000. 6 At the same hearing, Garcia requested a further reduction of his bail, which was denied. He then appealed the denial of the $607,000 bail reduction ruling to the Illinois Appellate Court which denied the same. Garcia next appealed to the Illinois Supreme Court, and that court likewise refused to disturb the circuit court decision setting bail at $607,000.

Following the Illinois Supreme Court's affirmance of the Illinois circuit court's denial of his motion for a further reduction in bail, Garcia petitioned the federal district court for a writ of habeas corpus. The district court granted Garcia's petition for a writ of habeas corpus, holding that the Illinois circuit court acted arbitrarily in setting Garcia's bail at $607,000 in violation of Garcia's Eighth and Fourteenth Amendment rights stating "[w]hat controls this habeas case is that the state court judge cannot, in reaching that decision, do what Judge Kowalski has done to Garcia: surrender his judicial discretion in favor of setting a bail amount identical to the drugs' street value, on the mistaken assumption the Illinois General Assembly has equated street value with reasonable bail." Garcia v. Elrod, 643 F.Supp. 922, 925 (N.D.Ill.1986) (emphasis added). Since the record establishes the street value of the drugs was $607,722, by setting bail at $607,000 the state court judge did not set bail in an "amount identical to the drugs' street value" as stated by the federal district judge. The respondent appeals the district court's decision granting Garcia a petition for habeas corpus to this court.

II.

On appeal, the respondent, the Sheriff of Cook County, argues that the district court acted improperly in granting Garcia's petition for a writ of habeas corpus since the Illinois circuit court did not set Garcia's bail at $607,000 arbitrarily. Garcia maintains that the district court properly granted him a writ of habeas corpus since the $607,000 bail amount was arbitrarily excessive. In setting bail for Garcia, the state trial judge heard and considered testimony regarding the factors enumerated in the Illinois Bail Act. 7

In Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 3-4, 96 L.Ed. 3 (1951), the United States Supreme Court addressed the issue of what constitutes excessive bail under the Eighth Amendment and stated that bail is not excessive if it is "reasonably calculated" to assure the defendant's presence at trial. In United States v. Zylstra, 713 F.2d 1332 (7th Cir.1983) we stated "Excessive bail is an amount greater than that which is reasonably necessary to ensure that the defendant will be present at trial. 'As long as the primary reason in setting bond is to produce the defendant's presence, the final amount, type, and other conditions of release are within the sound discretion of the releasing authority, and we may review only for an abuse of that discretion.' United States v. James, 674 F.2d 886, 891 (11th Cir.1982)."

Id. at 1337 (emphasis added). In Zylstra, a case involving a multi-million dollar drug smuggling syndicate known as the "Company", the defendant contended that the federal trial court violated his Eighth Amendment rights in reinstating its earlier $1,000,000 cash bond on the third day of his trial. Although Zylstra involved a ruling by a federal trial court during trial and the instant case involves state court bail proceedings before trial, our reasoning supporting the rejection of Zylstra's argument is equally applicable:

"It is a matter of common knowledge that the prosecution of big-time illegal drug trafficking is frequently hampered by threats to witnesses, prosecutors and even judges, which all too often are carried out. Traffic in illicit drugs is a matter of pressing national concern and the trial court was properly interested in seeing that at least one member of the 'Company's' hierarchy would be present in court during his entire trial."

Id. at 1337-1338 (emphasis added). We will not assume when the state trial judge presiding in this case was conducting the second bail hearing, that he had either forgotten what had transpired at the previous bail hearing (eight days before) or that he was in a trance or oblivious to the drug problems besetting our country today. Justice Powell has noted the growing problem involving drug trafficking:

"The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates."

United States v. Mendenhall, 446 U.S. 544, 561-62, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980) (Powell, J., concurring) (emphasis added). As noted in the dissent in United States v. Williams, 798 F.2d 1024 (7th Cir.1986):

" 'Without a doubt, the public has a strong interest in prosecuting narcotics dealers.' United States v. Regilio, 669 F.2d 1169, 1173 (7th Cir.1981). 'Traffic in illicit drugs is a matter of pressing national concern....' United States v. Zylstra, 713 F.2d 1332, 1338 (7th Cir.1983). Drug abuse can and does produce devastating effects in the lives of our fellow Americans, and our governmental agencies must be allowed, within the confines of our cherished constitutional safeguards, to effectively prosecute drug conspirators in this country [which requires their presence at trial]."

798 F.2d at 1045 (Coffey, J. dissenting).

In the present case, the circuit court considered Garcia's bail bond on three occasions, the first time when setting his bail and the second and third times when considering motions for bail reduction. The state trial judge granted the first motion and reduced the bail from $12 million to $607,000 but denied another motion to reduce it further. In the bail hearings, the trial judge heard evidence that occupies some 87 pages of testimony. The second hearing was held only slightly more than a week after the first bail hearing, in which the judge had heard extensive testimony concerning Garcia's background as well as the magnitude of his and his accomplice's present and past activity in cocaine trafficking. The transcript of the October 3, 1985, hearing establishes that the state judge considered and gave credence to the earlier testimony from the September 25 bail hearing involving Garcia:

THE COURT: The thing crossed my mind. That is this: I was, of course, the Judge sitting in the original bond hearing, and the officer I notice is not here for purposes of the record.

MS. WIRTH: That's correct.

THE COURT: Now, you, gentlemen, were not present at the time obviously.

MR. DEL VALLE [Counsel for Garcia and Fleites]: That's correct.

MR....

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