U.S. v. Portes

• Citation: 786 F.2d 758
• Decision Date: 12 December 1985
• Docket Number: No. 85-2459,85-2459
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonel PORTES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 758

786 F.2d 758

UNITED STATES of America, Plaintiff-Appellee, v. Leonel PORTES, Defendant-Appellant.

No. 85-2459.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 4, 1985.

Decided Dec. 12, 1985 ^*.

Opinion March 10, 1986.

Max Cohen, Cohen & Thiros, Merriville, Ind., for defendant-appellant.

Samuel Rosenthal, Washington, D.C., for plaintiff-appellee.

Before FLAUM and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

RIPPLE, Circuit Judge.

Pursuant to the provisions of the Bail Reform Act of 1984 (Act), 18 U.S.C. Secs. 3142-3145, a United States magistrate found that no condition or combination of conditions would reasonably assure the safety of the community or the appearance of Mr. Portes at the court proceedings to dispose of the criminal charges pending against him. The magistrate therefore ordered him detained pending trial. After reviewing the record de novo, the district court affirmed the detention order. On appeal, Mr. Portes argues that the Bail Reform Act of 1984 violates the fifth and eighth amendments to the Constitution. He also argues that, even if the Act is constitutional, the magistrate and the district court did not apply it properly in this case. We hold that the Bail Reform Act of 1984 does not violate either the fifth or eighth amendment and we affirm the decision to detain Mr. Portes pending his trial.

I FACTS

On July 19, 1985, a grand jury returned an indictment against Leonel Portes and approximately thirty other members of an alleged drug trafficking network. ¹ The indictment charged Mr. Portes with eight counts including conspiracy, distribution of narcotics and illegal use of a communication facility. At Mr. Portes' initial hearing on July 23, 1985, the government requested a detention hearing pursuant to 18 U.S.C. Sec. 3142. The statute gives the court the authority to order the defendant detained pending trial if, after a hearing, the court determines that no condition or combination of conditions will reasonably assure the safety of the community and the appearance of the defendant.

On July 25, 1985, Mr. Portes appeared before a United States magistrate. The government offered the testimony of two witnesses. Elaine Harris, an agent with The government also called Fernando Villicana, a narcotics investigator for the East Chicago Police Department. Officer Villicana testified that a previously reliable informant called him and told him that, once Leonel Portes was free on bond, he "would skip bond and go and be sent to another Latin American country" and that certain police officers and agents might be subject to reprisal. Detention Hearing Tr. at 24. Mr. Portes offered no evidence at the detention hearing. On July 26, 1985, the magistrate ordered Mr. Portes detained pending trial.

the Drug Enforcement Administration, testified that, on July 23, 1985, pursuant to a search warrant, agents searched Mr. Portes' home. The agents found approximately five thousand dollars, three handguns, numerous pieces of identification for various individuals and one hundred thousand dollars worth of jewelry. Ms. Harris also testified that Mr. Portes was not an American citizen but had emigrated from Havana, Cuba. Finally, Ms. Harris testified that, between March 20, 1985 and July 12, 1985, the Drug Enforcement Administration intercepted twenty to twenty-five phone conversations in which Mr. Portes discussed narcotics distribution.

In reaching his decision to detain Mr. Portes, the magistrate determined that the government had established probable cause to believe that the defendant had committed an offense under the Controlled Substances Act, 21 U.S.C. Sec. 801 et seq., punishable by a prison term of ten years or more. This determination permitted the court to consider the statutorily-created rebuttable presumption that no condition or combination of conditions will assure appearance and ensure safety to the community. 18 U.S.C. Sec. 3142(e). The magistrate relied on this presumption and concluded that Mr. Portes had presented no evidence to rebut it.

At a hearing on his motion to reconsider, Mr. Portes produced some evidence to rebut the presumption. He testified that he had lived in northern Indiana for four and one-half years, that he was managing a lounge and selling jewelry and that he lived with his girlfriend and their two children. Mr. Portes also submitted immigration papers establishing that he was legally within the country. The magistrate considered the new evidence but affirmed his detention order.

The Act establishes a two-tier review process for detention orders issued by magistrates. 18 U.S.C. Sec. 3145 (1984). The first level of review occurs in the court having original jurisdiction over the offense. In this case, the district court made a de novo determination that the government had established probable cause to believe that Mr. Portes had committed an offense giving rise to the rebuttable presumption. The court also determined that the government had met its burden of establishing that no condition or combination of conditions on release could assure either Mr. Portes' appearance or the safety of the community. Therefore, on September 9, 1985, the district court affirmed the magistrate's detention order.

The second tier of review brings that order to this court. Applying the prudential principle that courts should not unnecessarily decide constitutional issues, we will turn first to the application of the Act to Mr. Portes. Only if we determine that the Act has been properly applied to detain Mr. Portes must we address its constitutionality. See United States v. Leon, 766 F.2d 77, 78 (2d Cir.1985); United States v. Orta, 760 F.2d 887, 889 n. 8 (8th Cir.1985).

II APPLICATION OF THE BAIL REFORM ACT

Mr. Portes argues that the court improperly exercised its power to detain in this case because the government failed to meet the requirements imposed by section 3142. However, we believe that the district court properly applied the Act and the government met its statutorily imposed burdens. This conclusion is based on the resolution of several important issues surrounding

the application of the Act and the role of this court in reviewing detention orders.

STANDARD OF APPELLATE REVIEW

Initially, it is necessary to determine the standard by which this court ought to review the decisions of the magistrate and the district court. While providing for appellate review, the statute does not indicate the standard which this court must employ. Three alternatives have been articulated by other circuits. The Second and Fourth Circuits apply the "clearly erroneous" standard. United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985); United States v. Williams, 753 F.2d 329, 333 (4th Cir.1985). ² The Third, Sixth, Eighth, Ninth, and Eleventh Circuits require an independent review of the entire record to determine if the detention decision was correct. United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985); United States v. Hazime, 762 F.2d 34, 36-37 (6th Cir.1985); United States v. Maull, 773 F.2d 1479, 1487 (8th Cir.1985); United States v. Montamedi, 767 F.2d 1403, 1406 (9th Cir.1985); United States v. Hurtado, 779 F.2d 1467, 1472 (11th Cir.1985). Finally, the First and Fifth Circuits, without extended discussion, looked to the 1966 version of the Act and adopted the "supported by the proceedings below" standard contained in that act. United States v. Jessup, 757 F.2d 378, 387-88 (1st Cir.1985); United States v. Fortna, 769 F.2d 243, 250 (5th Cir.1985). ³

We join the majority of the circuits in adopting the so-called "independent review" standard. In our view, it most accurately reflects the congressional intent. As the Eleventh Circuit noted in Hurtado, 779 F.2d at 1472:

When it adopted the 1984 Act, Congress repealed the pretrial review provisions of Section 3147(b) and made no provision for the standard of appellate review of detention decisions in either pre- or post-trial settings save to say that appellate procedures were to be those "set forth in Rule 9 of the Federal Rules of Appellate Procedure." S.Rep. No. 225, 98th Cong., 1st Sess. 1, 29-30 & n. 92 (1983), reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3212-13 & n. 92. Fed.R.App.P. 9(a) provides that, after the trial court reaches a determination as to release, it must set forth "in writing the reasons for the action taken" and the appeal shall be effected with the aid of "such papers, affidavits, and portions of the record as the parties shall present. The court of appeals or a judge thereof may order the release of the appellant pending the appeal."

The very encompassing nature of this inquiry, and especially the requirement that the trial court set forth in some detail its reasoning, suggests that the inquiry is to be probing. Further, the language of the Rule apprehends that either party may expand the record, permitting consideration by the appeals court of evidence not even presented to the trial court. Fed.R.App.P. 9(a); Bayko, 774 F.2d at 519; Maull, 773 F.2d at 1487; Delker, 757 F.2d at 1399. The affirmative congressional decision to repeal the deferential standard of the 1966 Act is also instructive.

This approach is also most compatible with the traditional approach of the Justices of the Supreme Court when acting on applications for bail in post-conviction settings.

See, e.g., Mecom v. United States, 434 U.S. 1340, 1341, 98 S.Ct. 19, 20, 54 L.Ed.2d 49 (Powell, Circuit Justice 1977); accord Truong Dinh Hung v. United States, 439 U.S. 1326, 1328, 99 S.Ct. 16, 17, 58 L.Ed.2d 33 (Brennan, Circuit Justice 1978); Harris v. United States, 404 U.S. 1232, 92 S.Ct. 10, 30 L.Ed.2d 25 (Douglas, Circuit Justice 1971); Sellers v. United States, 89 S.Ct. 36, 38, 21 L.Ed.2d 64 (Black, Circuit Justice 1968); Reynolds v. United States, 80 S.Ct. 30, 32, 4 L.Ed.2d 46 (Douglas, Circuit Justice 1959).

In adopting this standard of appellate review for pre-trial detention orders,...