849 F.

2d 485

UNITED STATES of America, Plaintiff-Appellee,

v.
Frances KING, Defendant-Appellant.
No. 88-5047

Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
June 21, 1988.
Paul A. McKenna, Miami, Fla., for defendant-appellant.
Leon B. Kellner, U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before HATCHETT, ANDERSON and CLARK, Circuit Judges.
HATCHETT, Circuit Judge:

Appellant, Frances King, appeals the district court's pretrial detention order
issued pursuant to the Bail Reform Act of 1984, 18 U.S.C. Sec. 3141 et seq. We
affirm in part and remand.

FACTS
2

On November 19, 1987, a federal grand jury in the Southern District of Florida
returned a multiple count indictment, charging appellant, Frances King, with
conducting a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848,
and several counts of possession with intent to distribute cocaine in violation of
21 U.S.C. Sec. 841(a)(1). On November 20, 1987, the government moved for
pretrial detention of King.

On that same day, a United States Magistrate conducted a pretrial detention

hearing pursuant to 18 U.S.C. Sec. 3142(f).1 Following the detention hearing,

the magistrate ordered King's pretrial detention, finding that she was both a risk
of flight and a danger to the community. See 18 U.S.C. Sec. 3142(e).
Thereafter, on December 4, 1987, King filed a motion to amend or revoke the
magistrate's pre-trial detention order. After conducting an evidentiary hearing,
the district court entered an order on December 30, 1987, denying King's
motion for revocation or amendment of the magistrate's pretrial detention order
and ordering pretrial detention. The district court's order did not provide written
findings of fact, contain a statement of reasons supporting pretrial detention, or
expressly adopt the magistrate's pretrial detention order.
4

On appeal, King urges that we reverse the district court's order on the grounds
that: (1) the magistrate erroneously interpreted the "dangerousness" prong of
the pretrial detention statute; and (2) the district court erred by failing to
comply with the dictates of United States v. Hurtado, 779 F.2d 1467 (11th
Cir.1985) which requires an independent review of the magistrate's pretrial
detention order, and the entry of written findings and written reasons supporting
its decision.

DISCUSSION
5

In United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985), a case in which
this circuit rendered its first interpretation of the Bail Reform Act of 1984, 18
U.S.C. Sec. 3141 et seq., we held that cases arising under the Act "present[]
mixed questions of law and fact to be accorded plenary review on appeal."
Hurtado, 779 F.2d at 1471-72. Accord United States v. Motamedi, 767 F.2d
1403, 1406 (9th Cir.1985); United States v. Bayko, 774 F.2d 516, 519-20 (1st
Cir.1985); United States v. Delker, 757 F.2d 1390, 1399-1400 (3d Cir.1985).
Nonetheless, we cautioned that we will not disturb the district court's purely
factual findings unless such findings are clearly erroneous. Hurtado, 779 F.2d at
1472; United States v. Gaviria, 828 F.2d 667, 668 (11th Cir.1987).

I.
6

King first contends that the magistrate erroneously construed the

"dangerousness" prong of the pretrial detention statute. The "dangerousness"
prong to which King refers emanates from section 3142(e) of the Bail Reform
Act which provides that a judicial officer shall order detention if he

7
finds
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....

18 U.S.C. Sec. 3142(e).2 Section 3142(e) accords the judicial officer substantial
latitude in determining whether pretrial detention is appropriate. In addition, the
Act creates several "rebuttable presumptions" which the judicial officer must
use in determining whether pretrial detention is necessary under the standard
set forth in section 3142(e). One such presumption states that:

9
Subject
to rebuttal by the person, it shall be presumed that no condition or
combination of conditions will reasonably assure the appearance of the person as
required and the safety of the community if the judicial officer finds that there is
probable cause to believe that the person 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. Sec. 801 et seq.)....
10

18 U.S.C. Sec. 3142(e) (emphasis added).

11

In Hurtado, we observed that in order to trigger section 3142(e)'s rebuttable

presumption, the government need not make a showing of probable cause
independent of the grand jury's indictment. Hurtado, 779 F.2d at 1479. As
noted in the magistrate's order, King is charged with, among other things,
several counts of possession with intent to distribute cocaine, in violation of 21
U.S.C. Sec. 841(a)(1). King is therefore charged with offenses involving a
narcotic drug punishable by more than ten years imprisonment under the
Controlled Substances Act, 21 U.S.C. Sec. 801 et seq. See also 18 U.S.C. Sec.
3142(e); 18 U.S.C. Sec. 3142(g)(4). Accordingly, we conclude that the
magistrate properly found that the circumstances of this case create a rebuttable
presumption of flight under the terms of section 3142(e). We note, however,
that this statutory presumption imposes only the burden of production on King
and does not shift the burden of persuasion concerning risk of flight and
dangerousness. Hurtado, 779 F.2d at 1478; Jessup, 757 F.2d 378 at 381-84 (1st
Cir.1985).

12

Applying these principles, we agree with the district court that detention is
proper because no condition or set of conditions will reasonably assure the
safety of the community. King is alleged to be the leader of a high volume and
extremely profitable cocaine distribution scheme which delivered multikilogram quantities of cocaine between various points in the southeastern
United States. The strength of the government's case is further buttressed by
testimony of an agent of the Drug Enforcement Administration, as well as
photographs, bank records, telephone tolls, and other documents which show
that King was responsible for directing several drug couriers who participated
in the distribution scheme.

13

Although King came forward with evidence concerning the dangerousness

issue, this evidence is insufficient to overcome the fact that the government has
established by clear and convincing evidence that no conditions of release will
reasonably assure the safety of the community. See 18 U.S.C. Sec. 3142(f)
(requiring that a finding pursuant to section 3142(e) that no condition or
combination of conditions will reasonably assure the safety of the community
be supported by clear and convincing evidence). Even had King presented
sufficient evidence to rebut the statutory presumption that she would flee or
endanger the safety of the community if released, the effect of the presumption
would not have been completely eliminated. As our sister court of appeals
noted in United States v. Portes, 786 F.2d 758 (7th Cir.1985), use of the word
"rebut" in this context is somewhat of a misnomer " 'because the rebutted
presumption is not erased. Instead it remains in the case as an evidentiary
finding militating against release, to be weigh[ed] along with other evidence
relevant to factors listed in section 3142(g).' " Portes, 786 F.2d at 764 (quoting
United States v. Dominiquez, 783 F.2d 702, 707 (7th Cir.1986)).

14

Although this circuit has not directly addressed the question, it has been held
"that a finding of either danger to the community or risk of flight will be
sufficient to detain the defendant pending trial." Portes, 786 F.2d at 765
(emphasis added) (citing United States v. Daniels, 772 F.2d 382, 383 (7th
Cir.1985)); see also United States v. Rodriguez, 803 F.2d 1102, 1103 (11th
Cir.1986) (holding that pretrial detention because of the potential
dangerousness of the accused is constitutional). Consequently, we could affirm
the district court's finding that pretrial detention is necessary based on King's
potential dangerousness to the community. Because King raises challenges with
respect to the district court's and magistrate's findings that she imposes a risk of
flight, we address that issue as well.

15

As with the dangerousness issue, when seeking pretrial detention of a detainee,

the government may utilize the statutory presumption found in section 3142(e)
that those charged with narcotics offenses often pose an especially high risk of
flight. During the hearing before the magistrate, King presented evidence
which established her awareness of the imminence of the grand jury's
indictment six months prior to the time the indictment was actually returned.
Therefore, King argues, the fact that she chose to retain counsel to contest the
charges rather than flee the jurisdiction manifests her true intent with respect to
flight. In addition, King argues that community witnesses and family members
all testified that she is stable and unlikely to flee. This testimony buttresses her
contention that the magistrate and district court erred by finding that she poses
a risk of flight.

16

17

In response, the government argues that King has a tremendous incentive to

flee in light of the fact that she faces numerous minimum mandatory ten-year
sentences and is aware of damaging evidence against her, including a taped
conversation. The government further argues that King has substantial drug
connections outside the United States, that her home is in forfeiture, and that
King presumably has the funds to finance flight. This evidence, the government
argues, coupled with the statutory presumption that drug offenders pose special
risks of flight, is more than adequate to support the magistrate's and district
court's decisions that pretrial detention is necessary to assure King's presence at
trial. We agree.
Although King came forward with some evidence to show that she was not
inclined to flee, this evidence is not sufficient to overcome the statutory
presumption and other evidence adduced at the hearings. Accordingly, we hold
that the government established by a preponderance of the evidence that no
condition or set of conditions will reasonably assure King's presence at trial.
See United States v. Medina, 775 F.2d 1398, 1402 (11th Cir.1985) (holding
that government's burden of proof on the question of risk of flight is governed
by the preponderance of the evidence standard); United States v. Chimurenga,
760 F.2d 400, 405 (2d Cir.1985) (same); United States v. Orta, 760 F.2d 887,
891 (8th Cir.1985) (same).3

II.
18

Relying upon United States v. Hurtado, 779 F.2d 1467 (11th Cir.1985), King
also argues that this case should be remanded because the district court failed to
provide written findings of fact and a statement of reasons for its pre-trial
detention order. The government responds that a limited remand is appropriate
if we hold that the district court's order is infirm under the standards enunciated
in Hurtado. This remand, the government argues, should be for the sole purpose
of permitting the district court to articulate its findings and reasons for the
pretrial detention order.

19

In Hurtado, we held that when a detainee files a motion to revoke or amend a

magistrate's pretrial detention order, "the district court must undertake an
independent review of the case, enter its own findings in writing, and set forth
the reasons supporting its decision, making provisions as set forth in subsection
[18 U.S.C. Sec. 3142](i)(1)-(4)." Hurtado, 779 F.2d at 1480. We reached this
decision by interpreting the term "judicial officer," as used in 18 U.S.C. Sec.
3142(i), to refer not only to the magistrate at the initial detention hearing, but
also to the district court judge upon review of the magistrate's order.4 The
Hurtado court did not, however, reach the issue presented by this case--i.e.,

under what circumstances may a district court judge satisfy the obligation to
enter written findings and a statement of reasons supporting pretrial detention
by adopting the order of the magistrate.
20

In United States v. Gaviria, 828 F.2d 667 (11th Cir.1987), a panel of this circuit
followed Hurtado's teachings, but implicitly rejected the notion that Hurtado's
"independent review" requirement obligates the district court judge to conduct
a de novo hearing when reviewing the magistrate's detention order. Rather, we
observed that "de novo review [only] requires the court to exercise independent
consideration of all facts properly before it...." Gaviria, 828 F.2d at 670 (citing
Hurtado, 779 F.2d at 1480-81). Presumably, Gaviria left in tact Hurtado 's
requirement that the district court include in its own order written findings of
fact and a statement of reasons supporting pretrial detention. Gaviria, 828 F.2d
at 670.

21

In hopes of developing a procedure that is both consistent with the spirit of the
Bail Reform Act and compatible with the practical realities of the magistrate's
function throughout the bail process, we adopt the following procedures to be
followed within this circuit.

22

Pursuant to 18 U.S.C. Sec. 3145, following a magistrate's order that a detainee

be held without bond pending trial, the detainee may move the district court to
revoke or amend the magistrate's pretrial detention order.5 As both Hurtado and
Gaviria teach, in this situation, the district court must conduct an independent
review to determine whether the magistrate properly found that pretrial
detention is necessary.

23

At this point, the district court has two options. First, based solely on a careful
review of the pleadings and the evidence developed at the magistrate's
detention hearing, the district court may determine that the magistrate's factual
findings are supported and that the magistrate's legal conclusions are correct.
The court may then explicitly adopt the magistrate's pretrial detention order.
Adoption of the order obviates the need for the district court to prepare its own
written findings of fact and statement of reasons supporting pretrial detention.

24

If Hurtado is to be given a logical construction, it must be that the district court

is to enter its own findings of fact where factual issues remain to be resolved.
Thus, when a motion to revoke or amend a pretrial detention order attacks only
the magistrate's legal conclusion that pretrial detention is necessary, and no
factual issues remain unresolved, the district court need not enter findings of
fact when adopting the magistrate's pretrial detention order. Otherwise, the

district court's function would be reduced to the mere duplicitous task of

reproducing the magistrate's pretrial detention order. We see no reason for
requiring such an unjudicious use of time.6
25

As stated previously, the district court also has a second option when
considering a detainee's motion to revoke or amend a magistrate's pretrial
detention order. If the district court, after reviewing the detainee's motion,
determines that additional evidence is necessary or that factual issues remain
unresolved, the court may conduct an evidentiary hearing for these purposes. In
this instance, the district court must enter written factual findings and written
reasons supporting its decision. Of course, if the district court concludes that
the additional evidence does not affect the validity of the magistrate's findings
and conclusions, the court may state the reasons therefor and then explicitly
adopt the magistrate's pretrial detention order.

26

Likewise, if the district court, based solely on a careful review of the evidence
adduced at the magistrate's detention hearing, agrees with the magistrate's
recommendation that pretrial detention is necessary, yet finds that some of the
magistrate's legal conclusions are incorrect or that certain of the magistrate's
factual findings are not clearly supported, the court should so state in writing. In
order to facilitate our review on appeal, the district court must prepare a written
order in which it specifies those portions of the magistrate's pretrial detention
order which it finds either incorrect or unsupported by the evidence of record.
The district court may then explicitly adopt the magistrate's pretrial detention
order. Thus, in the present case, had the district court found that pretrial
detention of King was necessary but disagreed with the magistrate's legal
conclusion that the government had proven risk of flight by a preponderance of
the evidence, it would have been incumbent upon the court to state its reasons
therefor in writing.

27

Regardless of whether the district court exercises the first or second option, our
primary inquiry on appeal will focus on whether disposition of the detainee's
motion required that the court consider evidence other than that considered by
the magistrate. While the district court is always free to enter its own findings
in writing and a written statement of reasons supporting pretrial detention, we
hold that this is necessary only where: 1) the district court considers evidence
which was not considered by the magistrate; or 2) the district court adopts the
magistrate's recommendation that pretrial detention is necessary but finds that
certain of the magistrate's underlying conclusions or factual findings are
incorrect or unsupported by the evidence.

28

In the present case, the district court conducted a de novo hearing before

issuing its pre-trial detention order, but the district court did not make written
findings or set forth written reasons. Accordingly, the case is remanded to the
district court for proceedings consistent with this opinion. 7
AFFIRMED in part and REMANDED

Title 18 U.S.C. Sec. 3142(f) provides, in relevant part, that:

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 in the community.... At the hearing, the person has the right to be
represented by counsel, and, if financially unable to obtain adequate
representation, to have counsel appointed. The person shall be afforded an
opportunity to testify, to present witnesses, to cross-examine witnesses who
appear at the hearing, and to present information by proffer or otherwise. The
rules concerning admissibility of evidence in criminal trials do not apply to the
presentation and consideration of information at the hearing. The facts the
judicial officer uses to support a finding pursuant to subsection (e) that no
condition or combination of conditions will reasonably assure the safety of any
other person and the community shall be supported by clear and convincing
evidence.
18 U.S.C. Sec. 3142(f).

The term "dangerousness," as used in the Bail Reform Act of 1984, has a much
broader construction than might be commonly understood in everyday parlance.
The report of the Senate Judiciary Committee is particularly instructive in
delineating the types of conduct which Congress viewed as dangerous:
The concept of defendant dangerousness is described throughout this chapter by
the term 'safety of any other person or the community.' 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 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.
This principle was recently endorsed in United States v. Provenzano and
Andretta [605 F.2d 85 (3rd Cir.1979) ], in which it was held that the concept of
'danger' as used in current 18 U.S.C. 3148 extended to non-physical harms such

as corrupting a union. 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.'
Report of the Senate Committee on the Judiciary, S.Rep. No. 98-225, 98th
Cong., 2d Sess. (1984) U.S.Code Cong. & Admin.News 3182, 3195-96.
3

We note that although 18 U.S.C. Sec. 3142(f) provides that a finding of

"dangerousness" must be supported by "clear and convincing evidence," the
statute is silent on the question of how much proof is necessary to support a
finding that the defendant is a risk of flight

Title 18 U.S.C. Sec. 3142(i) provides, in relevant part that in order to issue a
detention order pursuant to the provisions of section 3142(e),
[T]he judicial officer shall-(1) include written findings of fact and a written statement of reasons for the
detention....
18 U.S.C. Sec. 3142(i).

Section 3145. Review and appeal of a release or detention order

(b) Review of a detention order.--If a person is ordered detained by a
magistrate, or by a person other than a judge of a court having original
jurisdiction over the offense and other than a Federal appellate court, the
person may file, with the court having original jurisdiction over the offense, a
motion for revocation or amendment of the order. The motion shall be
determined promptly.

Our logic was not lost on Judge Fay who, dissenting in Hurtado, reasoned as
follows:
The United States District Judge conducted a hearing on October 3, 1985.
Counsel for all parties presented their arguments, but no one offered any
additional evidence. In its Order denying relief from the magistrate's detention
order, the District Court sets forth that it has carefully reviewed the defendant's
motions and the detention order, has carefully reviewed the bail reports
submitted by the United States Probation Office, and has carefully reviewed the
transcript of the detention hearing before the magistrate. Thus, it affirmatively
appears in this record that the United States District Judge personally reviewed
everything there was to consider. Having done so, he concluded and found that
no condition of release or combination of conditions will reasonably assure the

appearance of the defendants. There is no indication that the District Judge

deferred to the magistrate and his order does not merely ratify that of the
magistrate. I simply do not understand what the District Judge is to do on
remand.
I would affirm the order of pretrial detention.
Hurtado, 779 F.2d at 1482 (Fay, J., concurring in part, dissenting in part).
7

On remand, we anticipate that the district court will amend its order to: 1) state
that it explicitly adopted the magistrate's pretrial detention order; 2) adopted the
magistrate's recommendation that pretrial detention is necessary, although it
found that certain of the magistrate's factual findings or legal conclusions were
either incorrect or unsupported by the evidence of record or; 3) that upon
consideration of additional evidence, it concluded that the magistrate properly
found that pretrial detention is necessary. If either of the latter two situations is
applicable, it will be necessary for the court to enter additional findings of fact
and a statement of reasons supporting pretrial detention