United States v. Cox

• Decision Date: 31 March 1986
• Docket Number: No. 85-10093-01.,85-10093-01.
• Citation: 635 F. Supp. 1047
• Parties: UNITED STATES of America, Plaintiff, v. Norma COX and Anthony Morris, Defendants.
• Court: U.S. District Court — District of Kansas

635 F. Supp. 1047

UNITED STATES of America, Plaintiff, v. Norma COX and Anthony Morris, Defendants.

No. 85-10093-01.

United States District Court, D. Kansas.

March 31, 1986.

Charles O'Hara, Wichita, Kan., for Norma Cox.

Lyle Britt, Wichita, Kan., for Anthony Morris.

Jackie Williams, U.S. Atty., Wichita, Kan., for U.S.

OPINION AND MEMORANDUM OF THE COURT

THEIS, District Judge.

On November 19, 1985, a Grand Jury for the United States District Court for the District of Kansas, handed down several indictments for controlled substance violations. Among those arrested on the Grand Jury's indictment was Norma Cox. A detention hearing was held before Magistrate John Wooley on November 22, 1985, in which the motion of the United States Attorney to detain Norma Cox pending trial was granted. Judge Wooley found that there was probable cause to believe that Cox had committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. § 841, et seq., and that she had not rebutted the Government's evidence to that effect.

On December 3, 1985, Cox petitioned this Court for review of the Magistrate's detention order. A hearing was conducted the next day, at which the United States Attorney conceded that the defendant was not a flight risk, but argued that she should be detained because "no condition or combination of conditions will reasonably assure ... the safety of ... the community." 18 U.S.C. § 3142(e). Defendant called Dr. Howard Brodsky, a psychologist, who testified concerning her adverse reactions to incarceration, suggesting that her psychological state caused by detention could adversely affect her ability to assist counsel in preparation of her defense. Dr. Brodsky also testified that the potential of recidivism caused by her release posed no danger to the community because "whether 30 or 130 people were arrested I really don't think that will appreciably reduce the flow of cocaine in the community." Cox's family and friends also testified that she posed no threat of "dangerousness."

The Court was persuaded by defendant's testimony, and especially the testimony of Dr. Brodsky relating to defendant's psychological detriment by detention. The Court cannot accept Dr. Brodsky's opinion that enforcement will not deter the offense, but is in accord with most executive, legislative and judicial thinking which rejects the contention that the numerosity of offenses, offenders and public consumption is justification for abandoning enforcement efforts or continuing judicial retribution on a deterence theory. In addition, cognizant of the pretrial release of all other defendants indicted by the same Grand Jury for similar offenses, this Court's abhorrence of disparity of treatment within a judicial district led it to examine closely the justification for pretrial detention of defendant Cox. That examination convinced this Court that Cox was not the type of defendant Congress had in mind in enacting this statute authorizing pretrial detention. The Court found that the defendant had overcome the presumption of 18 U.S.C. § 3142(e), and that the Government had thereafter failed to establish by clear and convincing evidence that the release of this particular defendant would pose a danger to the safety of the community. Therefore, defendant Cox was ordered released pursuant to certain conditions of 18 U.S.C. § 3142(c), which are noted in an earlier order of this Court. Because of this Court's opinion that some courts have misunderstood Congressional intent in authorizing pretrial detention of certain criminal suspects, because of this Court's conviction that the statute was not intended to be applied to defendants like Cox, and because the Court decries the disparate treatment of criminal defendants that can follow from misguided application of such a statute, the Court sets out below the reasons for Cox's release under the Bail Reform Act of 1984. The Court also examines how Congressional history and case law development have demonstrated the Act should be applied.

I. THE BAIL REFORM ACT OF 1984

The Bail Reform Act of 1984, codified at 18 U.S.C. § 3142, effective October 12, 1984, sets forth relatively new standards for federal courts to apply in considering motions for pretrial detention. It can be expected that, like the pretrial detention provisions of the District of Columbia Code, on which it was modeled, greater experience with the Act will increase its effective and efficient use in accomplishing the intent of Congress. H.R.Rep. No. 98-1030, 98th Cong., 2d Sess., 8-9, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3191 (hereinafter cited as H.R.Rep., U.S.Code Cong. & Admin.News). Although the Tenth Circuit has published cases dealing with the Act's provision for bail pending appeal, United States v. Affleck, 765 F.2d 944 (10th Cir.1985) (en banc), the Court is aware of no Tenth Circuit cases which deal with the more controversial aspects of the Act's pretrial detention provisions. At the time this matter arose no cases had been published from the United States District Court of Kansas which analyzed the matter, and the Court is still unaware of any unpublished district court cases on point. Judge Kelly, of this district, has since written on the matter in United States v. Miller, 625 F.Supp. 513 (D.Kan.1985), a case which arose out of the same set of indictments as the Cox case. It is this Court's intention, without duplicating the matters in Judge Kelly's admirable opinion, to set out considerations guiding the application of the Act in the hope of bringing its invocation more closely in line with the purpose for which it was enacted.

Congress adopted the Bail Reform Act of 1984 to address such problems as community safety and to give courts adequate authority to consider in release determinations the danger an accused might pose to others if released. H.R.Rep. at 3, U.S.Code Cong. & Admin.News at 3185. Prior to this Act, courts could not legitimately consider such factors as safety of the community in making release determinations.¹ Congress' concern was directed towards the "small but identifiable group of particularly dangerous defendants" who "pose an especially grave risk to the safety of the community." H.R.Rep. at 5-6, U.S. Code Cong. & Admin.News at 3188-89. It is a mistake to apply the detention provisions of this Act broadly; the legislative history clearly indicates Congress' understanding that it would be used against a "limited group of offenders." H.R.Rep. at 5, U.S.Code Cong. & Admin.News at 3188. The statutory language allows pretrial detention upon a finding that "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. § 3142(e). Congressional concern regarding the safety of the community was directed to those cases "where there is a strong probability that a person will commit additional crimes if released." H.R.Rep. at 7, U.S.Code Cong. & Admin.News at 3189.

Though allowing pretrial detention, the statute is structured so that every other form of release, including release on conditions and temporary detention, must be considered first. United States v. Orta, 760 F.2d 887, 892 (8th Cir.1985). Only as a last resort should pretrial detention be invoked. Although the statute can be applied to any offense, when the accused has been charged with certain offenses and the Court finds there is probable cause to believe he has committed those offenses, the statute creates a presumption that "no condition or combination of conditions will reasonably assure the safety of any other person and the community." 18 U.S.C. § 3142(e). One such offense is a violation of controlled substances for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. § 801 et seq. or 21 U.S.C. § 951 et seq. Norma Cox was charged with an offense under 21 U.S.C. § 841(a)(1).

The rebuttable presumption of 18 U.S.C. § 3142(e) has been one of the most controversial aspects of the statute. Questions as to its constitutionality have been raised and settled. However, the effect that the presumption plays continues to be discussed. One court has considered the presumption to shift the burden of persuasion to the defendant to show that he is not dangerous. United States v. Aiello, 598 F.Supp. 740 (S.D.N.Y.1984). But Aiello has been sharply criticized and overwhelmingly rejected. United States v. Miller, 625 F.Supp. at 519. Today, most if not all courts agree that the presumption shifts only a burden of production to the defendant, not the burden of persuasion.² A presumption not rebutted can be evidence going to detention.³ Although as this opinion will discuss later, the Court is convinced that it should not be sufficient grounds for detention by itself. But even when the presumption is rebutted, it does not disappear. Courts have variously characterized it as: not being a "bursting bubble" but having "significant practical impact," Jessup, 757 F.2d at 383; remaining in the case as a factor to be considered by the judicial officer, United States v. Fortna, 769 F.2d 243, 251 (5th Cir.1985); and continuing to "weigh in the balance against bail," United States v. Diaz, 777 F.2d 1236, 1238 (7th Cir.1985).

The Court agrees that a Congressional determination that trafficking in drugs is to be equated with a danger to the community should remain a factor in the court's consideration. United States v. Strong, 775 F.2d 504, 506 (3rd Cir.1985). While the presumption is not a "bursting bubble," the emphasis should be on the Government's burden to establish a finding of dangerousness by clear and convincing evidence, as required by 18 U.S.C. § 3142(f). United States v. Freitas, 602 F.Supp. 1283, 1289 (N.D.Cal.1985).⁴ As Judge Kelly, of this Court, said:

Thus, the question is not simply whether Miller should be detained because the charges against him

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