U.S. v. Martir, 788

• Decision Date: 03 February 1986
• Docket Number: D,No. 788,788
• Citation: 782 F.2d 1141
• Parties: UNITED STATES of America, Appellee, v. Godofredo MARTIR, Defendant-Appellant. ocket 86-1005.
• Court: U.S. Court of Appeals — Second Circuit

Page 1141

782 F.2d 1141

54 USLW 2430

UNITED STATES of America, Appellee, v. Godofredo MARTIR, Defendant-Appellant.

No. 788, Docket 86-1005.

United States Court of Appeals Second Circuit.

Argued Jan. 9, 1986.

Decided Feb. 3, 1986.

Robert Plautz, New York City, for defendant-appellant.

Cecilia L. Gardner, Brooklyn, Asst. U.S. Atty. for the Eastern District of New York (Raymond J. Dearie, U.S. Atty. for the Eastern District of New York, Jane Simkin Smith, Asst. U.S. Atty., of Counsel), for appellee.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND and PRATT, Circuit Judges.

FEINBERG, Chief Judge:

The Bail Reform Act of 1984 creates a rebuttable presumption that a person accused of certain serious narcotics offenses will flee before trial. This case presents several important issues new to this circuit regarding the effect of the presumption and the type of showing needed to justify the detention of such a defendant who has come forward with material to rebut it. Godofredo Martir appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Constantino, J., that he be detained pending trial. Because we find that the government met its burden of proving that no combination of release conditions would reasonably assure Martir's presence at trial, we affirm the order of pretrial detention.

I.

Godofredo Martir was indicted with several others on one count of conspiracy to distribute heroin and on three counts of distributing heroin within 1000 feet of a public school. 21 U.S.C. Secs. 841(a)(1), 841(b)(1), 845a. At a hearing before Judge Constantino on December 2, 1985, the government moved under the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq., to have Martir detained pending trial, arguing that his indictment triggered the rebuttable presumption of 18 U.S.C. Sec. 3142(e) that Martir would flee if not detained. The government indicated that Martir had been convicted in state court on weapons charges, and announced that it would prove at trial that Martir headed the heroin distribution network charged in the indictment. Martir proffered that he had established a perfect attendance record while at liberty on bail during his state weapons trial, and claimed he had a legal defense to the sentence enhancement provisions of 21 U.S.C. Sec. 845a. He pointed out that members of his family were present in the courtroom, and stated that they were ready to raise $5,000 bail on his behalf.

The district judge orally rejected Martir's arguments and indicated that bail would be denied. Two days later, Martir asked the judge to reconsider, noting that his codefendants had been released on bail, and that he had faced a seven-year sentence in the state court proceeding. The court denied bail and ordered Martir detained in a written memorandum dated December 10, 1985. This appeal followed, and it has been heard and considered on an expedited basis.

II.

Section 3142 of the Bail Reform Act of 1984 (the Act), unlike prior law, expressly authorizes detention pending trial where "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); United States v. Chimurenga, 760 F.2d 400, 403 (2d Cir.1985). The drafters of the Act recognized that under prior law courts had exercised the authority to deny pretrial release to defendants in exceptional circumstances where financial conditions of release could not overcome the significant risks of a defendant's flight. See United States v. Abrahams, 575 F.2d 3 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978); S.Rep. No. 225, 98th Cong., 1st Sess. 7 & n. 18, reprinted in 1984 U.S.Code Cong. & Ad.News at 3189-90 (Senate Report). Section 3142, insofar as it makes risk of flight a predicate for pretrial detention, codifies this preexisting practice. However, section 3142(e), which is reproduced in the margin, also created a new rebuttable presumption that no condition of release will prevent a defendant's flight or the safety of the community if there is probable cause to believe that the defendant has committed certain narcotics and arms offenses. ¹ Only the presumption of flight is involved in this appeal.

The parties do not dispute that Martir's indictment for the narcotics offenses charged created "probable cause" sufficient to trigger the Sec. 3142(e) presumption of flight. See United States v. Contreras, 776 F.2d 51 (2d Cir.1985). Rather, they dispute whether the presumption was correctly applied, and whether the government's informal proffer was enough to sustain Martir's detention after he produced information tending to rebut the presumption. Martir argues that the district court misapplied the presumption by using it to shift the burden of persuasion to Martir on the question of flight. Alternatively, Martir contends, once he had come forward to rebut the presumption, the unsupported nature of the government's proffer concerning Martir's role in the charged enterprise made the proffer insufficient to carry the government's burden of proving that Martir should not be released on bail. Since these issues are important to administration of the Act, it is useful to set forth some general considerations regarding the effect of the flight presumption and the evidentiary burden it continues to leave on the government.

First, it is clear that the flight presumption of section 3142(e) places on the defendant only the burden of coming forward with evidence to rebut it. The government retains the burden of persuasion. Chimurenga, supra, 760 F.2d at 405. However, it does not follow that the effect of the presumption disappears as soon as the defendant produces some contrary evidence. Congress framed the flight presumption in light of its general finding, based on extensive testimony, that flight to avoid prosecution is "particularly high among those charged with major drug offenses." Senate Report at 20, reprinted at 1984 U.S.Code Cong. & Ad.News 3203. The concern underlying the presumption applies to the general class of defendants charged with one of the specified offenses--not merely to defendants who fail to produce rebuttal evidence. Were the presumption of flight to vanish upon any showing that a defendant was likely to appear, courts would be giving too little deference to Congress' findings regarding this class. We therefore adopt the "middle ground" position taken in United States v. Jessup, 757 F.2d 378, 382-84 (1st Cir.1985). A judicial officer conducting a detention hearing should, even after a defendant has come forward with rebuttal evidence, continue to give the presumption of flight some weight by keeping in mind that Congress has found that these offenders pose special risks of flight, and that "a strong probability arises" that no form of conditional release will be adequate to secure their appearance. See Senate Report at 19, reprinted in 1984 U.S.Code Cong. & Ad.News at 3202. The judge or magistrate thus should consider those legislative findings among the other factors to be weighed in deciding whether a defendant should be detained. Jessup, supra, 757 F.2d at 384.

Second, Congress clearly did not envisage that a formal evidentiary hearing would be needed to resolve competing claims under the flight presumption. While the Act is silent concerning how the government is to proceed at a detention hearing, the thrust of the legislation is to encourage informal methods of proof. Congress did not want detention hearings to resemble mini-trials, United States v. Delker, 757 F.2d 1390, 1396 (3d Cir.1985). Section 3142(f), which is reproduced in the margin, provides that a defendant may present "information" by proffer, and that the rules of evidence governing admissibility of evidence at trial do not apply to the "presentation and consideration of information" at such hearings. ² Congress explicitly left open what kinds of information would be a sufficient basis for release, choosing to leave the issue to the judgment of the courts on a case-by-case basis. Senate Report at 18-19, reprinted in 1984 U.S.Code Cong. & Ad.News at 3201-02.

In light of the Act's mandate for informality and the need for speed at a point where neither the defense nor the prosecution is likely to have marshalled all its proof, the government as well as the defendant should usually be able to proceed by some type of proffer where risk of flight is at issue. See, e.g., United States v. Colombo, 777 F.2d 96 (2d Cir.1985) (reversing district court and ordering defendant detained on basis of proffer). Moreover, Congress was quite aware that the government might present information through proffers under the Act. Such a practice was well-established under the District of Columbia bail statute, D.C.Code Sec. 23-1322(c)(4)-(c)(5), which served as Congress' model for the Act's procedural framework. Senate Report at 22, reprinted in 1984 U.S.Code Cong. & Ad.News 3205; see United States v. Edwards, 430 A.2d 1321, 1334, 1338 (D.C.App.1981) (in banc) (government may proceed directly or by proffer under D.C. statute), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). See also United States v. Acevedo-Ramos, 755 F.2d 203, 208 (1st Cir.1985). Indeed, Martir concedes that proceeding by way of proffer at a detention hearing is proper.

Third, while the Act hence gives courts considerable discretion regarding methods of presenting information about the risk of flight, the exercise of that discretion should reflect an awareness of the high stakes involved. As the Third Circuit observed while discussing the trial court's power to limit cross-examination "to prevent a pretrial hearing from becoming a full-blown trial," such power should always be exercised "with the recognition that a pretrial detention hearing may restrict for a significant time the liberty of a presumably innocent person." Delker, supra, 757...