US v. Jeffries, Crim. No. 87-36-MAC (WDO).

• Decision Date: 11 February 1988
• Docket Number: Crim. No. 87-36-MAC (WDO).
• Citation: 679 F. Supp. 1114
• Parties: UNITED STATES of America v. Jimmy Lee JEFFRIES a/k/a "Big Jim".
• Court: U.S. District Court — Middle District of Georgia

679 F. Supp. 1114

UNITED STATES of America v. Jimmy Lee JEFFRIES a/k/a "Big Jim".

Crim. No. 87-36-MAC (WDO).

United States District Court, M.D. Georgia, Macon Division.

February 11, 1988.

Miriam D. Duke, Macon, Ga., for plaintiff.

Victoria D. Little, Decatur, Ga., for defendant.

ORDER

OWENS, Chief Judge.

In thirteen counts of a thirty-four count indictment brought on December 10, 1987, defendant Jimmy Lee Jeffries was charged with several violations of federal law involving the sale and distribution of marijuana and cocaine, conspiracy to commit same, and the violation of federal income tax laws. On December 21, 1987, a hearing was held before Claude W. Hicks, Jr., United States Magistrate, on the United States' motion for an order for pretrial detention of defendant. The magistrate issued such an order on that day, finding that defendant should be detained because he posed a threat to the safety of the community. On January 27, 1988, defendant appealed the magistrate's order of detention and moved this court to grant defendant reasonable bail pending trial. This court heard defendant's motion on February 5, 1988.

The parties presented little live testimony at this second hearing, instead relying upon the transcript of the December 21, 1987, detention hearing and upon certain exhibits presented to the court. The hearing before this court consisted in large part of oral argument addressing alleged procedural irregularities and alleged errors of law.

Defendant's motion raises numerous questions about the mechanics of the Bail Reform Act of 1984. See 18 U.S.C. § 3141, et seq. Therefore, this court will engage in an examination of the procedures described in that Act while also conducting a de novo review of all of the facts submitted to the court.

18 U.S.C. § 3145(b) permits an individual ordered detained by a magistrate to file, "with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." This court, as the court having original jurisdiction over the offenses alleged in the indictment, treats defendant's motion, captioned as an "Appeal of Magistrate's Order of Detention," as such a motion.

The Bail Reform Act does not directly address the proper scope of review when a district court reviews a magistrate's bail decision. However, the Eleventh Circuit, like most circuits which have addressed the question, has held that the district court must conduct a de novo review of the magistrate's denial of bail. United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987), citing United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985). See also United States v. Delker, 757 F.2d 1390 (3rd Cir. 1985); United States v. Leon, 766 F.2d 77 (2nd Cir.1985). "De novo review requires the court to exercise independent consideration of all facts properly before it and to include written findings of fact and a written statement of the reasons for detention." Gaviria, 828 F.2d at 670, citing Hurtado, 779 F.2d at 1480-81.

In conducting this de novo review, the court is cognizant that section 3142 altered prior law in this area by adding as a factor in the detention determination "the nature and seriousness of the danger to the community that would be posed by the person's release." 18 U.S.C. § 1342(g). See Leon, 766 F.2d at 80. In fact, where a detention hearing is conducted pursuant to 3142(f)(1)(C),¹ as was the detention hearing in this case, a rebuttable presumption arises which provides that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e). Cf. Hurtado, 779 F.2d at 1469 (upon showing of probable cause that a defendant committed certain drug-related offenses the statute creates a rebuttable presumption that the defendant would flee if released).

The indictment in this case, in which defendant was charged with numerous violations of 21 U.S.C. § 841(a)(1),² "establishes probable cause to believe the defendant committed the offenses charged and triggers the presumption that the defendant constitutes a danger to the community...." United States v. Knight, 636 F.Supp. 1462, 1465 (S.D.Fla.1986); Hurtado, 779 F.2d at 1477. The Senate Report discussing the Bail Reform Act described this new concept of dangerousness by the phrase "safety of any other person or the community." S.Rep. No. 225, 98th Cong., 2nd Sess. 12, reprinted in 1984 U.S.Code Cong. & Ad.News, 3182, 3195. The Senate Report continues as follows:

The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or a witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence.... The Committee also emphasizes that the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the safety of any other person or the community.

Id. at 3195-96, quoted in United States v. Knight, 636 F.Supp. at 1466; Leon, 766 F.2d at 81 (harm to society caused by narcotics trafficking encompassed within "dangerousness"). Factors which courts have identified as relevant to determinations of dangerousness include the following: the seriousness of the charge; defendant's criminal history; presence of threats of violence or intimidation or other acts tending to obstruct justice; the nature of the criminal organization; place of defendant in organization's heirarchy; ongoing criminal activity despite arrests within criminal organization; and evidence of violence within criminal organization. See Knight, 636 F.Supp. at 1467-68; Delker, 757 F.2d at 1400; United States v. Acevedo-Ramos, 755 F.2d 203, 205 (1st Cir.1985).

However, the court must make determinations of dangerousness and decisions regarding detention on a case-by-case basis. Hurtado, 779 F.2d at 1478; Knight, 636 F.Supp. at 1467. "The fact that the defendant is charged with an offense described in subsection (f)(1)(A) through (C) is not, in itself, sufficient to support a detention order." Hurtado, 779 F.2d at 1477, quoting 1984 Code Cong. & Ad.News at 3182, 3204. The burden of persuasion remains on the government. Id. at 1478. "The government may not merely come before the trial court, present its indictment, and thereby send the defendant off to jail, foreclosing any further discussion. Rather, the defendant still must be afforded the opportunity for a hearing at which he may come forward with evidence to meet his burden of production...." Id.; see also Knight, 636 F.Supp. at 1465. At such hearing, the government must establish by clear and convincing evidence that the defendant is one of the rare individuals warranting detention. 18 U.S.C. § 3142(f); see Knight, 636 F.Supp. at 1465; United States v. Ridinger, 623 F.Supp. 1386, 1394-95 (W.D.Mo.1985); Acevedo-Ramos, 755 F.2d at 208-09. Delker, 757 F.2d at 1397; Leon, 766 F.2d at 81.

Further, the dangerousness of a defendant is not the only factor which a judicial officer must consider when deciding the detention question. Section 3142(g) has identified three other factors worthy of consideration. These factors include the following:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

(2) the weight of the evidence against the person; and

(3) the history and characteristics of the person, including (A) the persons's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law....

18 U.S.C. § 3142(g). These factors become relevant both when evaluating whether defendant has rebutted the presumption of dangerousness arising from the indictment and when determining whether the government has met its burden of persuasion. Knight, 636 F.Supp. at 1465.

To rebut the presumption of dangerousness arising from the nature of the offense, defendant presented numerous witnesses at the initial hearing before the magistrate, witnesses whose testimony has been transcribed and made a part of the record of this hearing. Those witnesses testified that they had no knowledge that defendant had been engaged in criminal activity, that they had never known defendant to be a violent person, and that they did not believe defendant would either threaten a witness or commit a crime if he was released. On February 5, 1988, Mrs. Sarah Williams, wife of defendant's business partner and a neighbor of defendant, testified similarly. Mrs. Williams, who has three children living at home, further testified that defendant's presence in the neighborhood would not arouse fear or anxiety in the community.

Other evidence identified defendant as hard-working, religious and reliable. Defendant's wife testified regarding his medical condition of diabetes, and she informed the court that defendant was presently on and should remain on a strict diet.

Timothy A. Shaw, Special Agent of the Federal Bureau of Investigation, testified before the magistrate. This testimony established that defendant has a record of criminal convictions involving violation of federal and state liquor laws. These convictions occurred in 1958-1960. Defendant has had no criminal conviction since 1960. Special Agent Shaw also testified that numerous firearms were discovered...