U.S. v. Suppa

• Decision Date: 19 August 1986
• Docket Number: No. 86-5481,86-5481
• Parties: UNITED STATES of America v. Frank SUPPA, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 115

799 F.2d 115

55 USLW 2165

UNITED STATES of America v. Frank SUPPA, Appellant.

No. 86-5481.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Aug. 19, 1986.

Decided Aug. 27, 1986.

Thomas W. Greelish, U.S. Atty., Marion Percell, Asst. U.S. Atty., Newark, N.J., for appellee.

Jerome J. Froelich, Jr., McKenney & Froelich, Atlanta, Ga., Alan L. Zegas, West Orange, N.J., for appellant.

Before SEITZ, HIGGINBOTHAM, and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Introduction

Frank Suppa appeals from the order of the district court directing his pretrial detention. Two questions are presented. First, is an indictment for one of the crimes enumerated in the Bail Reform Act of 1984 sufficient to support a judicial finding of probable cause which triggers the rebuttable presumption of dangerousness under 18 U.S.C. Sec. 3142(e)? Second, if the rebuttable presumption of dangerousness was triggered, did Suppa fail to rebut the presumption? Because we answer both questions affirmatively, we affirm the district court's pretrial detention order.

I. Facts

On June 12, 1986, a federal grand jury sitting in the District of New Jersey returned an indictment, No. 86-223, against Suppa and 10 co-defendants. Suppa was charged in one count with conspiracy to distribute and distribution of cocaine from "at least as early as September 1, 1985 and continuing thereafter up to the filing of this Indictment." App. at 3. The government moved to detain Suppa pending trial pursuant to 18 U.S.C. Sec. 3142(e).

The statute provides that if a judicial officer finds that there is probable cause to believe that defendant has, inter alia, "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.)," a rebuttable presumption arises that no conditions of release will assure the safety of the community or defendant's appearance at trial. 18 U.S.C. Sec. 3142(e).

A magistrate conducted a hearing on Suppa's pretrial detention on June 18, 1986. At that hearing, the government sought to invoke the rebuttable presumption of danger to the community by relying on the June 12 indictment. The government did not seek to invoke the presumption that Suppa would flee. App. at 92-93.

The government attempted to buttress a probable cause determination by proffering the existence of an eyewitness' testimony that Suppa received distribution of drug proceeds and asserting the corroboration of other aspects of the eyewitness' testimony through surveillance, tapes and co-conspirators' statements. App. at 31, 65-66. Finally, to further support a finding of danger to the community, the government produced Suppa's prior criminal record, App. at 33, and informed the magistrate that at the time of the offense charged, Suppa was on pretrial release in another case where an indictment charged him with conspiracy to violate federal racketeering laws in violation of 18 U.S.C. Sec. 1962(c) & (d), conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a). App. at 34-35. Cf. 18 U.S.C. Sec. 3142(e)(2). The government did not call any live witnesses.

To counter the government's presentation, Suppa called F.B.I. Agent Dennis Marchalonis, who was present in the courtroom but who had not testified. The magistrate sustained the government's objections to any questions to the agent concerning the substance of the government's case. App. at 78-85. Suppa then proffered evidence that he had been married 27 years, had six children, had a long-term residence and had never run from any charge against him. App. at 98-99.

The magistrate held that the indictment itself established probable cause and triggered the rebuttable presumption of dangerousness under section 3142(e). App. at 107. The magistrate also held that Suppa had failed to rebut that presumption as his proffer went to risk of flight rather than dangerousness. App. at 108. The magistrate, therefore, ordered Suppa's detention pending trial. Suppa sought review by the district court.

Before the district court, Suppa and the government repeated their arguments. The government emphasized that the offense for which Suppa was indicted allegedly occurred while he was on pretrial release for another drug offense and that Suppa had produced no evidence of employment. App. at 145-47. In an attempt to rebut the presumption of dangerousness, Suppa added to his proffer before the magistrate his contentions that he did not commit the crime, that two co-defendants would testify to that effect if his trial was severed from theirs, and that he had never threatened anybody. App. at 159.

The district court held that the presumption of dangerousness "was triggered by the indictment itself which charges a drug offense of the requisite severity, as to which there was probable cause." App. at 171. The indictment, together with the fact that it was issued while Suppa was on bail, was sufficient to trigger the presumption "separate and apart from the evidence proffered by the government." App. at 171. The court also held that Suppa failed to rebut the presumption of dangerousness, noting the lack of employment and stating that Suppa's proffer went more to flight than to dangerousness. App. at 171-80. The court then held that even had Suppa rebutted the presumption, the government's proffer coupled with the charge of a crime committed while on bail convinced the court that "clear and convincing evidence exists to believe that defendant Suppa poses a danger to the community within the meaning of the Bail Reform Act of 1984." App. at 190. The court, therefore, ordered Suppa's pretrial detention. Suppa appeals. ¹

II. Discussion

A. Probable Cause

Pretrial detention may be ordered only if, after a hearing, a "judicial officer finds that no condition or combination of conditions will reasonably assure ... the safety of any other person and the community." 18 U.S.C. Sec. 3142(e). In making such a finding, the judicial officer may utilize an evidentiary presumption:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure ... 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.)....

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

Here, Suppa was indicted for violations of 21 U.S.C. Sec. 841(a)(1) bearing the requisite penalty. The government, therefore, sought to invoke the rebuttable presumption of Sec. 3142(e), citing the indictment and proffering the existence of testimony implicating Suppa in the charged crimes as support for a finding of probable cause. The proffer before the magistrate consisted only of the statement of the Assistant United States Attorney that an eyewitness would testify that he was present when Suppa received distribution of drug proceeds and when Suppa discussed drug transactions with a co-defendant. App. at 31, 65-66. The government conceded before the district court that the "direct evidence" proffered to the magistrate that Suppa was a source of cocaine in fact consisted instead of co-conspirators' statements to its informant. App. at 167-68.

On appeal, the government argues that it may properly proceed by proffer to show the requisite probable cause. Both the magistrate and the district court stated that this court's opinion in United States v. Delker, 757 F.2d 1390 (3d Cir.1985), so stated. App. at 57, 190. In fact, the reference to proceeding by proffer in Delker referred to the right of a defendant to proceed by proffer, a right that the Bail Reform Act expressly grants to the defendant, but not to the government. 18 U.S.C. Sec. 3142(f). Therefore, Delker is not authority governing the manner in which the government may proceed to prove its case.

Although we have grave question whether the required finding of probable cause may be based on a proffer of evidence by the government, we need not reach that issue in this case. Both the district court and the magistrate also held that the indictment alone, apart from any proffered evidence, was sufficient to support a finding of probable cause. App. at 107, 171. If so, the proffered evidence would be irrelevant unless Suppa rebutted the presumption of dangerousness. We turn instead to Suppa's argument that the courts below erred as a matter of law in relying on the indictment.

Section 3142(e) requires that there be a finding of probable cause by a judicial officer. We have previously relied on this requirement as the basis for holding that the Act satisfies the requirements of procedural due process. See United States v. Perry, 788 F.2d 100, 113 (3d Cir.1986) (citing Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54 (1975)). In Perry, however, we did not address what evidence would be sufficient to support a judicial finding of probable cause, stating only that, in accord with Gerstein, "the full panoply of adversary safeguards" was unnecessary to the judicial determination. Id. at 113-14 (quoting Gerstein, 420 U.S. at 119-20, 95 S.Ct. at 865-66).

The district courts in this circuit are divided on the question whether an indictment is sufficient to support a finding of probable cause under the statute. The court in this case held that it was. Another district court has held that the judicial officer must have a factual basis independent of the return of an indictment upon which to make the requisite finding of probable cause. United States v. Allen, 605 F.Supp. 864 (W.D.Pa.1985). This court has not yet directly addressed the question. See United States v. Accetturo, 783 F.2d 382, 390 (3d Cir.1986) (reserving the issue).

The Act itself is silent as to...