U.S. v. King

Decision Date21 June 1988
Docket NumberNo. 88-5047,88-5047
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frances KING, Defendant-Appellant. Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit
CourtU.S. Court of Appeals — Eleventh Circuit

Paul A. McKenna, Miami, Fla., for defendant-appellant.

Leon B. Kellner, U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HATCHETT, ANDERSON and CLARK, Circuit Judges.

HATCHETT, Circuit Judge:

Appellant, Frances King, appeals the district court's pretrial detention order issued pursuant to the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq. We affirm in part and remand.

FACTS

On November 19, 1987, a federal grand jury in the Southern District of Florida returned a multiple count indictment, charging appellant, Frances King, with conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848, and several counts of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). On November 20, 1987, the government moved for pretrial detention of King.

On that same day, a United States Magistrate conducted a pretrial detention hearing pursuant to 18 U.S.C. Sec. 3142(f). 1 Following the detention hearing, the magistrate ordered King's pretrial detention, finding that she was both a risk of flight and a danger to the community. See 18 U.S.C. Sec. 3142(e). Thereafter, on December 4, 1987, King filed a motion to amend or revoke the magistrate's pre-trial detention order. After conducting an evidentiary hearing, the district court entered an order on December 30, 1987, denying King's motion for revocation or amendment of the magistrate's pretrial detention order and ordering pretrial detention. The district On appeal, King urges that we reverse the district court's order on the grounds that: (1) the magistrate erroneously interpreted the "dangerousness" prong of the pretrial detention statute; and (2) the district court erred by failing to comply with the dictates of United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985) which requires an independent review of the magistrate's pretrial detention order, and the entry of written findings and written reasons supporting its decision.

court's order did not provide written findings of fact, contain a statement of reasons supporting pretrial detention, or expressly adopt the magistrate's pretrial detention order.

DISCUSSION

In United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985), a case in which this circuit rendered its first interpretation of the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq., we held that cases arising under the Act "present[] mixed questions of law and fact to be accorded plenary review on appeal." Hurtado, 779 F.2d at 1471-72. Accord United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir.1985); United States v. Bayko, 774 F.2d 516, 519-20 (1st Cir.1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985). Nonetheless, we cautioned that we will not disturb the district court's purely factual findings unless such findings are clearly erroneous. Hurtado, 779 F.2d at 1472; United States v. Gaviria, 828 F.2d 667, 668 (11th Cir.1987).

I.

King first contends that the magistrate erroneously construed the "dangerousness" prong of the pretrial detention statute. The "dangerousness" prong to which King refers emanates from section 3142(e) of the Bail Reform Act which provides that a judicial officer shall order detention if he

finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community....

18 U.S.C. Sec. 3142(e). 2 Section 3142(e) accords the judicial officer substantial latitude in determining whether pretrial detention is appropriate. In addition, the Act creates several "rebuttable presumptions" which the judicial officer must use in determining whether pretrial detention is necessary under the standard set forth in section 3142(e). One such presumption states that:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. Sec. 801 et seq.)....

18 U.S.C. Sec. 3142(e) (emphasis added).

In Hurtado, we observed that in order to trigger section 3142(e)'s rebuttable presumption, the government need not make a showing of probable cause independent of the grand jury's indictment. Hurtado, 779 F.2d at 1479. As noted in the magistrate's order, King is charged with, among other things, several counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). King is therefore charged with offenses involving a narcotic drug punishable by more than ten years imprisonment under the Controlled Substances Act, 21 U.S.C. Sec. 801 et seq. See also 18 U.S.C. Sec. 3142(e); 18 U.S.C. Sec. 3142(g)(4). Accordingly, we conclude that the magistrate properly found that the circumstances of this case create a rebuttable presumption of flight under the terms of section 3142(e). We note, however, that this statutory presumption imposes only the burden of production on King and does not shift the burden of persuasion concerning risk of flight and dangerousness. Hurtado, 779 F.2d at 1478; Jessup, 757 F.2d 378 at 381-84 (1st Cir.1985).

Applying these principles, we agree with the district court that detention is proper because no condition or set of conditions will reasonably assure the safety of the community. King is alleged to be the leader of a high volume and extremely profitable cocaine distribution scheme which delivered multi-kilogram quantities of cocaine between various points in the southeastern United States. The strength of the government's case is further buttressed by testimony of an agent of the Drug Enforcement Administration, as well as photographs, bank records, telephone tolls, and other documents which show that King was responsible for directing several drug couriers who participated in the distribution scheme.

Although King came forward with evidence concerning the dangerousness issue, this evidence is insufficient to overcome the fact that the government has established by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community. See 18 U.S.C. Sec. 3142(f) (requiring that a finding pursuant to section 3142(e) that no condition or combination of conditions will reasonably assure the safety of the community be supported by clear and convincing evidence). Even had King presented sufficient evidence to rebut the statutory presumption that she would flee or endanger the safety of the community if released, the effect of the presumption would not have been completely eliminated. As our sister court of appeals noted in United States v. Portes, 786 F.2d 758 (7th Cir.1985), use of the word "rebut" in this context is somewhat of a misnomer " 'because the rebutted presumption is not erased. Instead it remains in the case as an evidentiary finding militating against release, to be weigh[ed] along with other evidence relevant to factors listed in section 3142(g).' " Portes, 786 F.2d at 764 (quoting United States v. Dominiquez, 783 F.2d 702, 707 (7th Cir.1986)).

Although this circuit has not directly addressed the question, it has been held "that a finding of either danger to the community or risk of flight will be sufficient to detain the defendant pending trial." Portes, 786 F.2d at 765 (emphasis added) (citing United States v. Daniels, 772 F.2d 382, 383 (7th Cir.1985)); see also United States v. Rodriguez, 803 F.2d 1102, 1103 (11th Cir.1986) (holding that pretrial detention because of the potential dangerousness of the accused is constitutional). Consequently, we could affirm the district court's finding that pretrial detention is necessary based on King's potential dangerousness to the community. Because King raises challenges with respect to the district court's and magistrate's findings that she imposes a risk of flight, we address that issue as well.

As with the dangerousness issue, when seeking pretrial detention of a detainee, the government may utilize the statutory presumption found in section 3142(e) that those charged with narcotics offenses often pose an especially high risk of flight. During the hearing before the magistrate, King presented evidence which established her awareness of the imminence of the grand jury's indictment six months prior to the time the indictment was actually returned. Therefore, King argues, the fact that she chose to retain counsel to contest the charges rather than flee the jurisdiction manifests her true intent with respect to flight. In addition, King argues that community witnesses and family members all testified that she is stable and unlikely to flee. This testimony buttresses her contention that the magistrate and district court erred by finding that she poses a risk of flight.

In response, the government argues that King has a tremendous incentive to flee in light of the fact that she faces numerous minimum mandatory ten-year sentences and is aware of damaging evidence against her, including a taped conversation. The government further argues that King has substantial drug connections outside the United States, that her home is in forfeiture, and that King presumably has the funds to finance flight. This evidence, the government argues, coupled with the statutory presumption that drug offenders pose special risks of flight, is more than adequate to support the magistrate's and district court's decisions that pretrial detention is necessary to assure King's presence at trial. We agree.

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