US v. Shea

• Citation: 749 F. Supp. 1162
• Decision Date: 10 October 1990
• Docket Number: Crim. No. 90-10204-K.
• Parties: UNITED STATES of America v. John J. SHEA, a/k/a "Red," John K. Mackie, and George E. Hogan, Defendants.
• Court: U.S. District Court — District of Massachusetts

749 F. Supp. 1162

UNITED STATES of America v. John J. SHEA, a/k/a "Red," John K. Mackie, and George E. Hogan, Defendants.

Crim. No. 90-10204-K.

United States District Court, D. Massachusetts.

October 10, 1990.

Martin F. Healey, Boston, Mass., for U.S.

Alfred E. Nugent, Boston, Mass., John C. Doherty, Jr., Andover, Mass., Frank A. Mickelson, Boston, Mass., for John K. Mackie.

Patrick J. Murphy, Boston, Mass., for George Hogan.

MEMORANDUM AND ORDER

KEETON, District Judge.

On August 9, 1990, a federal grand jury returned four indictments, charging a total of 51 individuals with cocaine trafficking and related charges. Defendants John J. Shea, a/k/a "Red," John K. Mackie and George E. Hogan ("defendants") were each charged in one indictment involving 20 other defendants with engaging in a conspiracy to traffic in cocaine. Defendant Shea further was charged in a second indictment (CR No. 90-10203-Wd) involving 18 other defendants with conspiring to traffic in cocaine.

On August 10, 1990, when defendants first appeared before the Magistrate in this case, the government moved for pretrial detention with regard to all three defendants. After holding detention hearings on August 15, 1990, Magistrate Bowler ordered each of the defendants detained.

Now before the court are defendant Shea's Motion for Revocation or Amendment of Magistrate's Detention Order (Docket No. 91, filed August 27, 1990); defendant Mackie's Motion For Review of Detention Order, to Revoke or Amend Said Order to Allow His Release on Conditions (Docket No. 93, filed September 4, 1990), with supporting memoranda (Docket Nos. 94, filed September 4, 1990, and 212, filed September 12, 1990); defendant Hogan's Motion for Revocation of Order on Detention, with supporting memorandum (Docket Nos. 209 and 210, filed September 11, 1990) and Motion in Support of Reconsideration of Detention Order (Docket No. 157, filed September 19, 1990); Government's Memorandum of Law in Support of Pretrial Detention regarding all three defendants (Docket No. 158, filed September 19, 1990); and oppositions to the Government's Memorandum by defendants Shea (Docket No. 165, filed September 21, 1990), Mackie (Docket No. 164, filed September 21, 1990), and Hogan (Docket No. 211, filed September 21, 1990).

I. BACKGROUND

Defendant Shea is charged in a total of 43 counts in two indictments (41 counts in this case and two counts in 90-10203-WD). The charges include operation of a continuing criminal enterprise (21 U.S.C. § 848), conspiracy to distribute cocaine (21 U.S.C. § 846), cocaine distribution (21 U.S.C. § 841(a)(1)), use or possession of a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)), use of a telephone to facilitate a drug trafficking crime (21 U.S.C. § 843(b)) and interstate travel in aid of racketeering (18 U.S.C. § 1952). Defendant Mackie is charged in one indictment with a total of 40 counts, including operation of a continuing criminal enterprise, conspiracy to distribute cocaine, cocaine distribution, using a telephone to facilitate a drug trafficking crime, and use or possession of a firearm in relation to a drug trafficking crime. (See above for statutory citations.) Defendant Hogan is charged in one indictment with a total of two counts. These include conspiracy to distribute cocaine and use of a telephone to facilitate a drug trafficking crime. (See above for statutory citations.)

II. LEGAL STANDARD FOR DETENTION

The Bail Reform Act prescribes the standard a judicial officer shall apply at a detention hearing in specified cases that include:

upon motion of the attorney for the Government in a case that involves —

. . . . .

(c) 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. § 3142(f)(1). The statutory definition of the standard is stated in the following way:

The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section 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(f) (emphasis added). An order of detention is appropriate only if the judicial officer determines that this standard is satisfied. Stated another way, then, such an order is appropriate only if detention is required to reasonably assure (1) the appearance of the defendant ("appearance"), and (2) the safety of one or more identified persons other than the defendant, and the safety of the community ("safety"). For convenience, I will sometimes refer to these requirements in this Memorandum as the requirements regarding "appearance" and "safety." Because the statutory connective is "and," detention may be ordered if essential either to appearance or to safety.

Congress also prescribed a list of factors to be considered:

The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning —

(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;

(3) the history and characteristics of the person, including —

(A) the person'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; and

(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release....

18 U.S.C. § 3142(g) (emphasis added).

Because the text introducing this list of factors refers both to reasonably assuring appearance and to reasonably assuring safety, there is an inherent ambiguity as to whether each factor listed is declared to be relevant to both appearance and safety. In whatever way this ambiguity may be resolved if the need should arise (and I conclude it does not arise in this case), some of these factors by their nature weigh more heavily on appearance than on safety and vice versa. For example, evidence of "community ties" has substantial weight in relation to reasonably assuring appearance and much less weight in relation to reasonably assuring safety. Cf. Legislative history of Bail Reform Act of 1984, S.Rep. No. 225, 98th Cong., 2d Sess. 24, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3207.

In addition to the factors listed in § 3142(g), the judicial officer is directed to take account of a rebuttable presumption that is relevant to the present case. 18 U.S.C. § 3142(e). The effect of that presumption is examined more closely in Part V of this Memorandum, infra. The presumption merely creates a burden of production on the defendant, however; it does not shift the burden of persuasion, which remains throughout the hearing on the government. United States v. Jessup, 757 F.2d 378, 381-82 (1st Cir.1985). See also United States v. O'Brien, 895 F.2d 810, 815 (1st Cir.1990).

The definition of the government's burden is stated in the statute. A judicial officer's determination that "no condition or combination of conditions of release will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence." 18 U.S.C. § 3142(f) (emphasis added).

III. DETENTION GROUNDED ON SAFETY

In the present case, the government's position that each of the defendants should be detained is grounded solely on reasonably assuring safety. The government based its motion for detention on the fact that defendants were accused of committing offenses for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. See 18 U.S.C. § 3142(f)(1)(C). After holding detention hearings on August 15, 1990, Magistrate Bowler concluded that the government had established by clear and convincing evidence with regard to all three defendants that no condition or combination of conditions set forth under 18 U.S.C. § 3142(b) or (c) would reasonably assure safety.

After defendants filed papers for review of the detention orders, this court held a hearing on September 12, 1990. In their motions and at the hearing, defendants presented additional evidence not available to Magistrate Bowler when she made her decision. At the court's request, additional memoranda were filed to address issues concerning the meaning of "danger to the community" as used in the statute in relation to a drug case.

IV. STANDARD OF REVIEW

The prescription for "review" as it appears in the Bail Reform statute, 18 U.S.C. § 3145(a) and (b), requires the court to apply a standard of review that falls somewhere between using a "clearly erroneous" standard and holding a de novo hearing. Cf. United States v. O'Brien, 895 F.2d at 812-814. See also United States v. King, 849 F.2d 485, 490 (11th Cir.1988) (describing district court's function as conducting "an independent review to determine whether the magistrate properly found that pretrial detention is necessary"); United States v. Phillips, 732 F.Supp. 255, 258-259 (D.Mass.1990).

The findings stated in this Memorandum are based on all the evidence before me, including both that presented to the Magistrate and the evidence received at the hearing of September 12, 1990 in this court.

V. PRESUMPTIONS AND BURDENS IN DRUG CASES

A. Unique Treatment of Specified Drug Offenses

Drug charges of which defendants...