United States v. Sullivan

• Court: Court of Appeals for the First Circuit
• Decided: September 22, 1993
• Docket: 93-1856
• Status: Published

Opinion

USCA1 Opinion

September 22, 1993    [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                  __________________

No. 93-1856

UNITED STATES,

                                      Appellee,

                                          v.

                                  MICHAEL SULLIVAN,

                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Donald E. Walter,* U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Richard E. Bachman on brief for appellant.
               __________________
               A.  John Pappalardo,  United States  Attorney, and  Paula J.
               ___________________                                 ________
          DeGiacomo,  Assistant  United  States   Attorney,  on  brief  for
          _________
          appellee.

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                                  __________________

          _______________
          * Of the Western District of Louisiana, sitting by designation.

Per Curiam.   Defendant Michael E. Sullivan appeals
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            from  an order of  pretrial detention imposed  pursuant to 18

            U.S.C.     3142(e).    He   is  charged  with  conspiring  to

            distribute  marijuana under  21 U.S.C.     841(a), 846.   The

            facts  are  sufficiently  set  forth in  the  report  of  the

            magistrate  judge determining  that  the  defendant had  been

            shown to  pose both a danger  to the community and  a risk of

            flight.  The pre-trial services report so recommended and the

            magistrate-judge's report was affirmed by the  district court

            without separate opinion.

                      The  defendant's  principal  attack  is   upon  the

            invocation  of  the  rebuttable presumption  contained  in 18

            U.S.C.    3142(e).    This  provision  states in  part  that,

            whenever there  is probable  cause to  believe that  a person

            committed a  drug offense carrying  a maximum prison  term of

            ten years or  more, a presumption arises that he poses a risk

            of  flight  and a  danger to  the  community.   The defendant

            argues  that,  assuming conviction,  his  sentence under  the

            Sentencing Guidelines would depend on the amount of marijuana

            handled by or  reasonably foreseen by him, see,  e.g., United
                                                       ___   ____  ______

            States  v. Valencia-Lucena,  988 F.2d  228, 233-35  (1st Cir.
            ______     _______________

            1993), and that  the government offered  no evidence to  this

            effect  at  the  detention   hearing.    The  presumption  is

            triggered, however,  not by defendant's  likely penalty under

            the  Guidelines,  but  rather  by  the  maximum  prison  term

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prescribed by statute  for the offense  charged.  See,  e.g.,
                                                              ___   ____

            United States v. Moss, 887 F.2d 333, 337 (1st Cir. 1989) (per
            _____________    ____

            curiam).    To  that  extent,  the  defendant's  position  is

            mistaken.

                      Yet the  maximum term of imprisonment  in this case

            is not  readily determined by  looking at the  statute, since

            the statutory maximum itself  varies.  The penalty provisions

            in 21 U.S.C.   841(b) contain a series of maximums--some more

            and  some less  than  ten years--depending  on  the type  and

            quantity of drugs.   Marijuana offenses, in particular, carry

            a  maximum  term of  ten years  or more  only  if 50  or more

            kilograms were involved.  Compare id.   841(b)(1)(A)-(C) with
                                      _______ ___                    ____

            id.   841(b)(1)(D).   The presumption  would thus apply  here
            ___

            only if there  were probable cause to  believe that defendant

            was accountable for at least that quantity of marijuana. 

                      For  purposes of  triggering  the  presumption,  of

            course,  the  indictment  ordinarily  suffices  to  establish

            probable  cause to  believe  that a  defendant committed  the

            offense charged.   See, e.g.,  United States  v. Dillon,  938
                               ___  ____   _____________     ______

            F.2d 1412, 1416  (1st Cir. 1991) (per curiam);  United States
                                                            _____________

            v.  Vargas, 804 F.2d 157,  163 (1st Cir.  1986) (per curiam).
                ______

            The   one-count  indictment  here,  which  charged  seventeen

            individuals with conspiracy to distribute marijuana,  did set

            forth  the quantity  of drugs  involved: a  closing paragraph

            stated that  "[t]he conspiracy  charged  above involved  more

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than 1000  kilograms of marijuana  ...."  Yet  it is  open to

            dispute  whether  this paragraph  is  deserving  of the  same

            weight  as   is  accorded  the  charging   paragraphs  in  an

            indictment for purposes of   3142(e).  The paragraph appeared

            on a separate  sheet of  paper under the  heading "notice  of

            applicability."  Its purpose was to apprise the defendants of

            possible penalties.   And a description  of drug quantity  is

            not necessary to the validity  of the indictment inasmuch  as

            it is not an element of the offense under 21 U.S.C.    841(a)

            & 846.  See, e.g., United States v. Royal, 972 F.2d 643, 649-
                    ___  ____  _____________    _____

            50 & n.11 (5th Cir. 1992);  United States v. Barnes, 890 F.2d
                                        _____________    ______

            545,  551  n.6  (1st  Cir. 1989).    Accordingly,  while  the

            indictment would  likely trigger the presumption  if combined

            with  independent   proof  that   the  amount   of  marijuana

            attributable to defendant (personally or  vicariously) was 50

            kilograms  or more, it is  less clear that  the indictment by

            itself suffices to do so.  

                      We  are  reluctant to  decide  this esoteric  point

            since it has neither been addressed below nor been briefed in

            this court.   At the same time, we are reluctant to treat the

            issue  as waived.    Although it  has  not been  specifically

            raised  by defendant, the issue  is akin to  that advanced on

            appeal:  i.e., whether  proof of  the quantity  of drugs  was

            required  in   order  to  establish   the  likely  Guidelines

            sentence.  Under these circumstances, we would be inclined to

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call for further  briefing or remand  the matter for  further

            consideration if the validity  of the detention order turned,

            as the  defendant assumes, on  the propriety of  invoking the

            presumption.

                      Our  review of  the record  persuades  us, however,

            that the detention order can be sustained without reliance on

            the  presumption--the same  conclusion apparently  reached by

            the magistrate judge.1   The  evidence as to  risk of  flight

            includes the following.  Among defendant's  numerous criminal

            involvements are  two convictions  in Florida for  failure to

            appear  (for   which  defendant   received   a  sentence   of

            confinement  in  each instance)  and  at  least one  criminal

            default  in  Massachusetts.     He  was  once  convicted  for

            violating  the   terms  of  probation,  and   a  warrant  was

            outstanding  at  the time  of his  arrest  for a  second such

            violation.    Although a  native  and  long-time resident  of

            Massachusetts,  defendant  has  spent  considerable  time  in

            Florida and  California.  He  is unmarried, has  no children,

            owns  no  real  estate,  and  has   limited  family  ties  to

            Massachusetts; his only  in-state relative is a brother.   He

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            1.    The magistrate  judge expressly invoked the presumption
            in finding that  defendant posed a  danger to the  community.
            In  later  finding  that he  also  posed  a  risk of  flight,
            however, she made no reference thereto, instead confining her
            discussion  to  the evidence  at hand.    While we  cannot be
            certain that the magistrate judge did not at least implicitly
            rely on the  presumption in finding defendant a  flight risk,
            her decision as written does not do so.  

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has  worked  at his  current job,  and  lived at  his current

            address,  for only three  years.  The  magistrate judge found

            that he had been  less than fully candid when  interviewed by

            pre-trial  services.    And  he  is  charged  with  a serious

            narcotics violation, carrying a  potentially lengthy term  of

            imprisonment.

                      To  be  sure,  there was  evidence  in  defendant's

            favor--including his mother's proximity in New Hampshire, his

            job  status, lack  of criminal  involvement in the  past four

            years, and alleged progress in his recent rehabilitation from

            alcohol  problems.   Yet we  think  the magistrate  judge was

            justified  in  finding  these  factors  outweighed  by  those

            enumerated above;  the various  instances in  which defendant

            has  failed  to  appear  in   criminal  cases  strike  us  as

            particularly   noteworthy.     In  addition,   following  the

            magistrate judge's decision,  defendant's mother proposed  to

            the district judge  to post  as security a  $35,000 piece  of

            property in New Hampshire.   Yet this proposal, in  our view,

            fails  to  swing  the  balance  in  defendant's  favor.    In

            particular, even without resort to the statutory presumption,

            it  is reasonable  to infer  from the  number of  persons and

            quantity  of drugs charged that  defendant is part  of a drug

            organization  that  might readily  absorb  the  loss of  such

            security.  See, e.g., Dillon, 938 F.2d at 1416-17.  Having
                       ___  ____  ______

            conducted an independent review  tempered by deference to the

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findings below, see, e.g., United States v. O'Brien, 895 F.2d
                            ___  ____  _____________    _______

            810,  812-14 (1st Cir. 1990), we conclude that the government

            has established  by a preponderance  of the evidence  that no

            conditions  of  release would  reasonably  assure defendant's

            appearance.  See, e.g., United  States v. Patriarca, 948 F.2d
                         ___  ____  ______________    _________

            789,  793 (1991)  (risk  of flight  need  only be  proven  by

            preponderance of evidence); Dillon, 938 F.2d at 1416 (same). 
                                        ______

                      Affirmed. 
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