U.S. v. Hazime

• Decision Date: 07 May 1985
• Docket Number: No. 85-1243,85-1243
• Citation: 762 F.2d 34
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hassan HAZIME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 34

762 F.2d 34

UNITED STATES of America, Plaintiff-Appellee, v. Hassan HAZIME, Defendant-Appellant.

No. 85-1243.

United States Court of Appeals, Sixth Circuit.

May 7, 1985.

David Griem (argued), Detroit, Mich., for defendant-appellant.

Joel M. Shere, Michael C. Leibson, Gary M. Maveal, (argued), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee.

Before MERRITT, KENNEDY and WELLFORD, Circuit Judges.

MERRITT, Circuit Judge.

This is an emergency appeal from an order of the District Court detaining defendant Hassan Hazime prior to trial without bail under the Bail Reform Act of 1984, (the Act), 18 U.S.C. Sec. 3141 et seq. Hazime challenges the constitutionality of 18 U.S.C. Sec. 3142(e), a provision of the Act that requires judicial officers making pretrial detention decisions to apply a rebuttable presumption that an individual charged with a serious drug offense will likely flee before trial. He also contends that he introduced evidence of family ties and educational and employment history in the United States which rebutted whatever presumption of flight did arise, and that he was therefore entitled to be set free under section 3142(d) of the Act.

Although relying on the presumption, it is unclear whether the District Court treated the presumption merely as an evidentiary rule, shifting the burden of persuasion to the defendant to show that he would not flee. The U.S. Attorney's position on this question is likewise unclear.

The nature of the presumption obviously has great bearing on both its constitutionality and on the question of whether Hazime adequately rebutted the presumption. These important questions are being considered for the first time by this court. They tend to evade review by becoming moot when the conviction or acquittal occurs. These issues, however, should be addressed by this court only on the basis of a clear ruling by the District Court. In the instant case we do not know what weight the District Court gave to the presumption and what weight it gave to other evidence. We therefore remand the case to the District Court for reconsideration and further findings and conclusions.

I.

On January 21, 1985, Hazime was indicted in the Eastern District of Michigan in Detroit on four of ten counts in an indictment for conspiracy to import and distribute 37 to 49 kilograms of Heroin with a value estimated by the government as between $4.5 million and $7.3 million. Hassim was charged with conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. Sec. 846; conspiracy to import heroin in violation of 21 U.S.C. Secs. 952(a) and 955c; and conspiracy to fail to report the transportation of monetary instruments in excess of $5,000 out of the United States in violation of 31 U.S.C. Secs. 5316 and 5322. The indictment alleged that Hazime was a drug "runner" who arranged and participated in meetings where Hazime exchanged suitcases containing cash (and which were then taken by plane to Lebanon) for suitcases containing heroin.

The government moved for an order detaining Hazime prior to trial without bail, and on January 22, 1985, a detention hearing was held before a magistrate pursuant to 18 U.S.C. Secs. 3142(e) and (f), under which the "judicial officer" is to order the detention of the accused person prior to trial if "after a hearing pursuant to the provisions of subsection (f)," 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." The detention hearing, and subsequent hearings before the District Court, involved one of the rebuttable presumptions that the Act creates. It states:

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).

The magistrate found that Hazime's indictment for a drug offense under 21 U.S.C. Sec. 801 et seq. established a presumption that there was no condition or combination of conditions favorable to his release on bond pending trial, a showing the magistrate found was met by the government's assertions that Hazime was unemployed, was vague about his wife's whereabouts, had a valid passport and had in the recent past pleaded guilty to charges of possession of a stolen credit card and resisting arrest, and Hazime's prehearing statement that "if I find out who the people are who testified against me, I will put my fingers through their eyes." He also interpreted the Act as requiring a showing of probable cause to believe that Hazime had committed the offenses charged, (A. 31), but required no evidence beyond the indictment.

In an effort to rebut the presumption in favor of detention, Hazime's attorney stated that Hazime had received a master's degree in electrical engineering from the University of Detroit only a month before the hearing, and was interviewing for jobs with General Motors and the Department of Navy. He also stated that Hazime would be willing to surrender his passport, and that although Hazime had made two recent trips to Lebanon, they had been financed by his parents, who also resided in the Detroit area. The magistrate found that Hazime's answers to the pretrial services officer had been vague and evasive and that he had only recently moved to the Detroit area from Florida and did not have strong ties to the Detroit area. He found that Hazime's attorney's picture of Hazime was flawed by the fact that Hazime was "charged with importing large amounts of Heroin."

The magistrate ordered Hazime detained without bail, and this decision was appealed to the District Court. Although noting that a clearly erroneous standard for review of the magistrate's decision was probably correct, the District Court held a de novo hearing on the detention order. The District Court ruled that the indictment established probable cause to believe that Hazime committed the offense charged, A. 54.

The District Court held that the probable cause finding triggered the section 3142(e) presumption that Hazime would not appear if released on bail and was dangerous. A. 58. The court found that Hazime had failed to rebut this presumption. The court was troubled by Hazime's explanation regarding $8,345 he brought into the country on August 23, 1983, money he first described as his own, and later as money sent by his mother to his father. The court also found that the fact that in 1983 Hazime had cashed a check for $10,649.18 in denominations of $100 and higher cast...