United States v. Jones

• Court: Court of Appeals for the First Circuit
• Decided: August 19, 1999
• Docket: 99-1682
• Status: Unpublished

Opinion

[NOT FOR PUBLICATION NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 99-1682

UNITED STATES,

Appellee,

v.

EDWIN JONES, a/k/a FAST EDDY,

Defendant, Appellant .

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Chief Judge, Selya and Boudin, Circuit Judges.

Jonathan Shapiro and Stern, Shapiro, Weissberg & Garin on brief for appellant. Donald K. Stern, United States Attorney, Emily R. Schulman and Alex Whiting, Assistant U.S. Attorneys, on brief for appellee.

August 9, 1999

Per Curiam. Edwin Jones appeals from a district court order affirming the magistrate-judge's order of pretrial detention. He also appeals from the district court's failure to order his release from pretrial detention under 18 U.S.C. 3145(b) (requiring prompt review of detention orders) and 3164 (Speedy Trial Act provisions for pretrial detainees). Jones also argues (for the first time on appeal) that his continued pretrial detention violates due process. Jones was indicted, together with six other defendants, on charges of conspiring to possess cocaine base with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and 846; possessing with intent to distribute cocaine base, in violation of 21 U.S.C. 841(a)(1) and 18 U.S.C. 2; and money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i) and 2. A superseding indictment was returned in this case on June 23, 1999, adding the following two charges against Jones: leading a continuing criminal enterprise that engaged in the distribution of cocaine base, in violation of 21 U.S.C. 848; and being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. 922(g). The government moved to detain Jones under 18 U.S.C. 3142(f). A magistrate judge held a hearing on June 4, 1998, to consider the detention of Jones and three co-defendants (Jason Gendron, Saul Pereira and Armando Velez). The evidence presented at the hearing consisted of testimony and an affidavit of Terrence O'Connell, a sergeant with the Sandwich, Massachusetts, Police Department. O'Connell based his testimony and affidavit on his participation in the investigation of a drug trafficking and money laundering organization allegedly run by Jones. He also relied upon information provided by other law enforcement officers, unidentified cooperating witnesses who assisted in the investigation, and confidential informants used to make controlled drug purchases from some of Jones' co-defendants. Also submitted into evidence was a photograph of weapons seized from Gendron's home on the date of the arrest of Jones and his co-defendants. The defendants did not call any witnesses. Jones' attorney argued, however, that his strong family ties and limited resources, among other factors, weighed against granting the government's motion for pretrial detention. The magistrate-judge issued a detailed Memorandum and Order dated June 17, 1998, granting the government's motion for pretrial detention as to Jones and Gendron. The court found that there was no condition or combination of conditions of release which would assure 1) Jones' appearance at trial, 2) the safety of any person or the community, or 3) that Jones would refrain from obstructing justice. Jones, who was represented by retained counsel at the time, filed a pro se motion for review of the detention order on September 10, 1998, claiming violation of the Speedy Trial Act. A hearing on Jones' motion for review of the detention order was eventually held on April 20, 1999, before Judge Young. The events that transpired between the filing of the motion on September 10, 1998, and the hearing on April 20, 1999, are fully and accurately set forth in Judge Young's Revised Memorandum, dated June 4, 1999, and we will not duplicate his efforts here. At the hearing, the district court heard arguments by the parties' attorneys but denied the government's request to submit new evidence. The district court affirmed Jones' pretrial detention in an order dated May 6, 1999. It adopted the findings of the magistrate-judge in declining to revoke or amend the detention order. The district court rejected Jones' argument that he was entitled to release under 18 U.S.C. 3145(b) and granted no relief on the basis of Jones' Speedy Trial Act claim. I. Review of Detention Order The standard of review for pretrial detention orders under 18 U.S.C. 3145(c) is one of independent review, with "deference to the determination of the district court." United States v. O'Brien, 895 F.2d 810, 814 (1st Cir. 1990). "Recognizing that appellate courts are ill-equipped to resolve factbound disputes, this standard cedes particular respect, as a practical matter, to the lower court's factual determinations." United States v. Tortora, 922 F.2d 880, 882-83 (1st Cir. 1990). The indictment in this case establishes probable cause to believe that Jones committed an offense that triggers the rebuttable presumption in favor of detention contained in 18 U.S.C. 3142(e). See United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991). The burden of persuasion remains on the government, however, where, as here and in most cases, the defendant comes forward with "some" contrary evidence. See id. Withal, the presumption retains evidentiary weight. Accordingly, the magistrate-judge in this case properly weighed the presumption in favor of pretrial detention as one of the factors to be considered along with those set forth in 3142(g). Having thoroughly reviewed the record, including the transcript of the detention hearing before the magistrate- judge, and having carefully considered all of the factors listed in 3142(g) as they apply to this case, we conclude that the government met its burden of establishing 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." 3142(e). We reach this decision for essentially the same reasons stated in the magistrate-judge's detailed Memorandum and Order, dated June 17, 1998. We add, however, the following comments in response to some of the specific points Jones has raised on appeal. A. Risk of Flight Jones argues that, contrary to the congressional paradigm underlying the 3142(e) presumption, the drug organization that he is alleged to have led does not appear to be "highly lucrative." United States v. Jessup, 757 F.2d 378, 386 (1st Cir. 1985). However, both the original and superseding indictments in this case seek, inter alia, forfeiture of $365,000 and eight motorcycles and automobiles. Those charges, together with the large number of defendants in this case, suggest a financial base that is not inconsistent with the type of organization with which Congress was concerned. The magistrate-judge's findings on Jones' use of aliases also support the risk of flight determination. Jones argues that his pretrial release on federal charges in 1988, without incident, indicates that he does not pose a risk of flight in this case. The penal consequences of that offense (for which he claims to have been sentenced to two years' imprisonment) were not nearly as severe as the possible lengthy sentence presently facing Jones. Therefore, the incentive to flee is that much greater, and Jones' past compliance with pretrial release conditions is not determinative here. B. Dangerousness The 3142(e) presumption continues to weigh in favor of a finding of danger to the community, even though Jones' attorney argued at the hearing that his record included no convictions for violent offenses. The magistrate-judge found that Jones' prior record included convictions for possession of Class B and Class D controlled substances, making false statements to obtain firearms, and threatening to commit murder. Jones' argument that all of his alleged co- conspirators have been arrested and therefor he could not continue to deal drugs does not sway us. We note that, according to the O'Connell affidavit, two of the co-defendants were on pretrial release for other charges when they engaged in some of the drug transactions detailed in the affidavit. C. Obstruction of Justice The magistrate-judges' findings support the conclusion that there is "clear and convincing evidence" that this case involves a serious risk that Jones will attempt to obstruct justice. See 18 U.S.C. 3142(f)(2)(B). The magistrate-judge found that Jones had a prior conviction for threatening to commit murder. O'Connell's affidavit related at least four threats of violence by Jones, some of which were allegedly made to discourage co-defendants from speaking to law-enforcement authorities about the activities underlying the present charges. Jones' objection to the court's reliance on statements of "unidentified informants about whom there is no way to determine reliability" is misplaced in the context of a bail hearing. See United States v. Acevedo-Ramos, 755 F.2d 203, 207-09 (1st Cir. 1985). Even if the threat allegedly recounted by Gendron is ignored (as Jones argues it should be in light of Gendron's affidavit), the evidence was sufficient for "the district court to conclude from defendant's past behavior that there is a serious risk that defendant, if released, will attempt to injure or intimidate prospective witnesses." United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988). For the above reasons, as well as the reasons stated in the Memorandum and Order of the magistrate-judge, we affirm the district court's order of pretrial detention with respect to Jones. II. Prompt Review, 3145(b) A motion for district court review of a magistrate- judge's order of pretrial detention "shall be determined promptly." 18 U.S.C. 3145(b). Jones argues that the district court's failure to abide by this timeliness requirement mandates his release. The Bail Reform Act of 1984 "is silent on the issue of a remedy for its time limits. Neither the timing requirements nor any other part of the Act can be read to require or even suggest, that a timing error must result in release of a person who should otherwise be detained." United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990). Although Montalvo-Murillo dealt with the requirement for a prompt initial hearing under 3142(f), the case for mandating release for violation of the prompt review provision of 3145(b) is less compelling than where the defendant has not yet received even an initial hearing and decision by a judicial officer. The district court did not err in denying Jones' request for release under 3145(b).

III. Speedy Trial Act, 3164 Under 18 U.S.C. 3164, the trial of a person being detained solely because he is awaiting trial "shall commence not later than ninety days following the beginning of such continuous detention . . . . The periods of delay enumerated in section 3161(h) are excluded in computing the time limitation specified in this section." 3164(b). Failure to begin trial within the ninety-day period "through no fault of the accused or his counsel" triggers automatic review by the court of the conditions of release. 3164(c). A pretrial detainee shall not be held in custody beyond the ninety-day period. Id. Jones' pretrial detention commenced on June 17, 1998. Therefore, if there were no applicable exclusions under 3164(h), Jones would have been entitled to release pending trial as of mid-September 1998. The district court granted a continuance "in the interest of justice," excluding the time from March 10, 1999 (status conference before Judge Young) to November 1, 1999 (scheduled trial date). At the April 20, 1999 hearing before Judge Young, Jones' attorney explained that his argument was that the ninety-day period had expired by March 10, 1999. Jones concedes that the period between the filing of motions by Jones on June 23, 1998 and their dipsosition on September 3, 1998, is exludable under 3161(h)(1)(F). The government argues that exclusions under 3161(h)(1)(F) (time during which pretrial motions are pending) and (h)(7) (reasonable period of delay when defendant is joined together with co-defendant as to whom time for trial has not yet run) reduce the relevant time lapse for the purposes of 3164 to less than ninety days. "A pretrial motion resulting in excludable time for one defendant also stops the clock for all codefendants." United States v. Torres Lopez, 851 F.2d 520, 526 (1st Cir. 1988). Application of that principle in this case, where the docket sheet lists numerous pretrial motions by the defendants, defeats Jones' Speedy Trial Act claim. Jones does not dispute that pendency of the co- defendants' motions if they stopped the clock for Jones would reduce the relevant time lapse to less than ninety days. Instead, relying on United States v. Theron, 782 F.2d 1510 (10th Cir. 1986), Jones argues that in the circumstances of the present case, the time during which co-defendants' motions were pending should not be excluded. Jones' reliance on Theron is misplaced. Jones has not requested a severence. Nor did he accept the district court's offer (at the April 20, 1999 hearing) to sever the case and try it in May, 1999. Instead, Jones' attorney indicated that he would need more time to prepare because he had only recently been appointed. Therefore, even if this court were prepared to adopt the holding in Theron (a point that we need not decide), its application would not dictate Jones' release under 3164 in this case. The district court did not err in not releasing Jones under the Speedy Trial Act.

IV. Due Process Jones argues on appeal that his pretrial detention for thirteen months violates his due process rights. It appears that Jones did not assert this claim in district court. Therefore, we will not consider the claim for the first time on appeal. See United States v. Perez-Franco, 839 F.2d 867, 871 (1st Cir. 1988). The orders appealed from are affirmed.