U.S. v. Torres
| Decision Date | 28 March 1991 |
| Docket Number | No. 91-1406,91-1406 |
| Citation | 929 F.2d 291 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Wilfredo TORRES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Colin S. Bruce, Asst. U.S. Atty., Office of U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Dianne Ruthman, Reilly & Associate, Des Plaines, Ill., for defendant-appellant.
Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.
Wilfredo Torres is under indictment for transporting a load of marijuana. The prosecutor sought his detention pending trial. Magistrate judge Evans held a hearing and concluded that Torres is unlikely to abscond if released on bond. The magistrate judge relied principally on Torres' family ties and employment history. The prosecution asked for review by the district judge, 18 U.S.C. Sec. 3145(a)(1), who ordered Torres detained. The district judge believed that Torres would abandon his family and job, because he will be separated from both anyway if convicted.
Members of Torres' family testified in the hearing before the magistrate judge. The district judge declined to read the transcript of that hearing, electing to take fresh evidence. But when Torres' lawyer tried to put the family members on the stand, the district judge demurred. He directed the lawyer to tell him what the family members would say, deeming that a more expeditious way to proceed.
Congress required judges to consider "family ties" when deciding whether defendants are likely to flee. 18 U.S.C. Sec. 3142(g)(3)(A). The district judge's approach, by contrast, treats these as irrelevant. The judge's view--that Torres' love for his wife and family does not increase the likelihood of his appearance because prison, his alternative to flight, also would sever those bonds--reads this factor out of the statute. Even the strongest affection for one's family does not assure appearance at trial, but the judge is supposed to consider probabilities. A person who cares deeply about spouse and children may be more likely to appear for trial than one who has no family. Refraining from flight keeps the family together longer. Even an imprisoned person can see his family more frequently than does one on the lam.
If, as the statute provides, family ties are relevant to the probability of flight, a judge may not rebuff all evidence about the subject. The magistrate judge took this testimony; the district judge could have read the transcript. Although Sec. 3145(a)(1) speaks of "review" by the district judge, the court may start from scratch. A district judge who elects to do this, however, must follow the same procedures that apply to the taking of evidence before the magistrate judge. Section 3142(f) gives the defendant the right "to present witnesses". Defendants also may "present information by proffer or otherwise". Judges may not limit them to the latter option. Although the Rules of Evidence are inapplicable to detention hearings, Fed.R.Evid. 1101(d)(3), a judge still must accept the kinds of evidence that Sec. 3142(f) allows the defendants to introduce.
Counsel's summary is not evidence. Summaries are sterile. Offers of proof are but the shadow of testimony. Proffers such as "the defendant's wife will testify that he loves his family" are generic; they do not allow a judge to...
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