U.S. v. Jessup, 84-1983
| Decision Date | 10 January 1985 |
| Docket Number | No. 84-1983,84-1983 |
| Citation | 757 F.2d 378 |
| Parties | UNITED STATES of America, Appellee, v. Mark JESSUP, Defendant, Appellant. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
James E. Carroll, Boston, Mass., with whom Robert D. Canty and Gaston Snow & Ely Bartlett, Boston, Mass., were on brief for defendant, appellant.
William F. Weld, U.S. Atty., Boston, Mass., with whom Gary S. Katzmann, Oliver C. Mitchell, Jr., and Evan M. Slavitt, Asst. U.S. Attys., Boston, Mass., were on brief for appellee.
Before BREYER, ALDRICH and TORRUELLA, Circuit Judges.
This appeal challenges the constitutionality of a provision of the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq., that requires judicial officers making bail decisions to apply a rebuttable presumption that one charged with a serious drug offense will likely flee before trial. 18 U.S.C. Sec. 3142(e). We find that Congress has acted within the Constitution's prescribed limits in creating this rebuttable presumption and that the magistrate and district court have acted within their lawful authority in applying it, and related statutory provisions, to the appellant Mark Jessup. We affirm the district court's decision to deny him bail and to hold him in custody pending his trial.
The Bail Reform Act of 1984 ("the Act") makes it, in one respect, harder and, in another respect, easier for judicial officers to order pretrial detention of those accused of crimes. It makes it harder by specifying explicitly what was implicit in prior law, namely that magistrates and judges cannot impose any "financial condition" that will result in detention. Sec. 3142(c). (See Appendix A, infra, for text of relevant portions of the Act.) High money bail cannot be used as a device to keep a defendant in custody before trial. The Act makes detention easier by broadening the category of persons whom the officer can order detained. And, the Act specifies that a judicial officer shall order detention if he
finds that no condition or combination of conditions [attaching to release] will reasonably assure the appearance of the person as required and the safety of any other person and the community....
Sec. 3142(e). The Act sets forth procedures to be used in applying this standard. It provides a list of factors that the officer is to weigh when doing so, Sec. 3142(g); and it creates several "rebuttable presumptions" that the officer is to use when applying the basic standard.
This case concerns 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. 801 et seq.)....
The magistrate here used the presumption in deciding to detain appellant Jessup. The magistrate found that Jessup posed a threat to the safety of the community in that, if released, he might continue to commit crimes. The magistrate also found that, if released, there was a substantial risk that Jessup would flee. In particular, the magistrate stated
I am equally of the view that the defendant has not rebutted the presumption that no non-financial conditions or combination of non-financial conditions of release would reasonably assure his presence. The defendant is charged with a serious crime and the Government's evidence is strong. The defendant has been in this state for only two years; he has no family or relatives living here. In all the circumstances, I do not believe the fact that the defendant is engaged to a Massachusetts resident would deter him from fleeing the jurisdiction in view of the seriousness of the crime charged and the strength of the evidence against him.
Given this alternative basis for the magistrate's decision, we need not consider the Act's "dangerousness" provisions or the magistrate's "dangerousness" finding. It is well established that the government can keep a defendant in custody to secure his presence at trial. See Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3, 96 L.Ed. 1 (1951) (); United States v. Abrahams, 575 F.2d 3, 8 (1st Cir.) ( that bail may be denied in exceptional circumstances where financial condition of release cannot reasonably assure presence of defendant at trial), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978). Thus the constitutional issue presented here is whether the government can use the Act's rebuttable presumption in doing so.
Before turning to the constitutional question, we must first decide what the rebuttable presumption means. What kind of burden is it designed to impose upon a defendant? Or, to cast the question in terms traditionally used in the law of evidence, does it impose a "burden of persuasion" or only a "burden of production"? See generally C. McCormick, Evidence Sec. 342 et seq. (2d ed. 1972). If the former, the alleged drug offender would have to prove he would not flee--i.e., he would have to persuade the judicial officer on the point. If the latter, he would only have to introduce a certain amount of evidence contrary to the presumed fact; no change in the burden of persuasion is effected. Where the burden of persuasion lies may make a practical difference to a magistrate or judge genuinely uncertain on the basis of what the parties have presented.
The United States Attorney here suggests that Congress meant the presumption to shift the burden of persuasion to the defendant. And he cites a district court case, United States v. Aiello, 598 F.Supp. 740 (S.D.N.Y.1984), in support of this view. In two other cases, however, it has been held that Congress did not intend to shift the burden of persuasion to the defendant but intended to impose only a burden of production. See United States v. Payden, 598 F.Supp. 1388, 1397 (S.D.N.Y.1984); United States v. Chimurenga, No. 84 Cr. 818 (RLC), S.D.N.Y. Nov. 5, 1984 (Grubin, Mag.). We believe the latter interpretation is correct.
Our reasons for believing that the burden of persuasion does not shift include the following. First, we are chary of interpreting ambiguous language to mandate pretrial confinement where evidence before a magistrate is indeterminate. Although pretrial confinement to prevent flight is not punishment, but rather one of various restrictions on the freedom of an accused person aimed at facilitating trial, see Bell v. Wolfish, 441 U.S. 520, 535-39, 99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979), it is still a most severe restriction requiring clear cause.
Second, the Senate Judiciary Committee Report explaining the new presumption, while arguably ambiguous, does not suggest that Congress meant to impose a burden of persuasion on the defendant. To understand the relevance of the Report's description, one must realize that Sec. 3142(e) creates not only the drug offender presumptions already mentioned (concerning "flight" and "danger") but it also creates a rebuttable presumption that one previously convicted of having committed a crime while free on bail is sufficiently "dangerous" to warrant detention. The Report describes both of these presumptions in the same place. It says that the object of this last presumption is to shift the burden
to the defendant to establish a basis for concluding that there are conditions of release sufficient to assure that he will not again engage in dangerous criminal activity pending his trial.
S.Rep. No. 225, 98th Cong., 1st Sess. 19 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News, pp. 1, 22 (emphasis added). The position of this sentence in the Report, its language, and the nature of the language of the statutory presumption all suggest that the words "establish a basis for concluding" aptly describe the intended effect of both Sec. 3142(e) presumptions. And, these words do not say that the burden of persuasion shifts to the defendant, nor do they imply that it is up to the defendant to persuade the judicial officer.
Third, a later section in the Act, Sec. 3148(b), establishes another similar presumption, this time in respect to a person who is released on bail (or the equivalent) and then commits a crime. The Act requires that such a person be brought back before the magistrate, who will consider whether to revoke his bail and detain him. The Act tells the magistrate that, if he finds probable cause to believe the person committed another crime while on release, he is to presume (subject to rebuttal) that detention is necessary to protect the community from still further crimes. That is to say, the Act applies a rebuttable presumption of "dangerousness." In describing the presumption, the Committee Report states that
the establishment of probable cause to believe that the defendant has committed a serious crime while on release constitutes compelling evidence that the defendant poses a danger to the community, and, once such probable cause is established, it is appropriate that the burden rest on the defendant to come forward with evidence indicating that this conclusion is not warranted in his case.
S.Rep., supra, at 36 (emphasis added), 1984 U.S.Code Cong. & Admin.News, p. 39. This language ("come forward with evidence") is traditionally used to suggest a shift in the burden of production, not of persuasion. (Compare, for example, the language used by the congressional Conference Committee which, in preparing the Federal Rules of Evidence, noted that a
presumption shifts to the party against whom it is directed the burden of going forward...
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