On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal No. 86-223-3.
Before: SEITZ, HIGGINBOTHAM, and SLOVITER, Circuit Judges.
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. § 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.
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. § 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. § 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 drugs 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. § 1962(c) & (d), conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and distribution of cocaine in violation of 21 U.S.C. § 841(a). App. at 34-35. Cf. 18 U.S.C. § 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, has 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 has 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 ...