JOHN C. WINSTON, PETITIONER V. UNITED STATES OF AMERICA No. 89-7540 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit Brief For The United States In Opposition OPINIONS BELOW The order of the court of appeals (Pet. App. 1) is unreported. The memorandum and order of the district court (Pet. App. 2-4) is unreported. The order of the magistrate (Pet. App. 5-6) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 8, 1990. The petition for a writ of certiorari was filed on May 18, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner was properly detained before trial on drug offense charges because he posed both a significant risk of flight and a danger to the community. 2. Whether the court of appeals used the proper standard of review in reviewing the detention order. STATEMENT Following his indictment in the United States District Court for the District of Columbia on one count of possession with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. 841(a) and (b)(1)(A)(iii) (1982 & Supp. IV 1986), petitioner moved repeatedly to revoke a magistrate's order detaining him prior to trial. Pet. 11-12. Petitioner also moved to suppress all physical evidence seized at the time of his arrest, as well as his post-arrest statements. On April 7, 1989, the district court conducted an evidentiary hearing on the motion to suppress, and on April 25, 1989, it granted the motion in a written memorandum and order. Pet. 11. /1/ The district court, however, denied all of petitioner's motions to revoke the detention order. See Pet. App. 2-4. The court of appeals affirmed. Pet. App. 1. 1. Petitioner was arrested early in the morning of February 13, 1989, after he arrived in Washington, D.C., by bus from New York. Pet. 10. At his pretrial detention hearing, Detective Vance Beard testified that he seized approximately 808 grams of cocaine from a tote bag petitioner was carrying when he arrived in Washington. The government also showed that petitioner had given a Texas home address when arrested in New York in 1983 and 1986, and a New York home address when arrested later in 1986. At the time of his arrest in the present case, petitioner possessed driver's licenses from both Texas and New York, and was carrying a certificate showing a car registered to a Newark, New Jersey address. Gov't C.A. Br. 4-5. Petitioner's counsel proffered that petitioner was a 34-year-old native of Grenada who came to the United States in 1977 and became a citizen. Petitioner is separated from his wife and children, who live in the New York City area, as do his mother, brothers, and sisters. He is a self-employed auto mechanic. Gov't C.A. Br. 5. The magistrate ordered that petitioner be detained without bond. Pet. App. 5-6. She found that there was "probable cause to believe that (petitioner) was in possession with intent to distribute 'crack' cocaine in the amount of 808 grams, valued at approximately $75,000." Id. at 5. "Because of the uncertainty as to (petitioner's) correct address and the very substantial amount of cocaine recovered from him," the magistrate was "satisfied that the government ha(d) shown by clear and convincing evidence that (petitioner) pose(d) both a risk of flight and of danger to the community." Id. at 6. 2. On March 22, 1989, petitioner moved to set conditions of release. On April 7, 1989, at the close of the suppression hearing, the district court denied petitioner's motion to revoke the magistrate's detention order. Gov't C.A. Br. 6. On June 21, 1989, after the district court had granted petitioner's motion to suppress and the government had noticed its appeal from that order, petitioner moved to alter the conditions of release. His counsel proffered that petitioner's aunt, a resident alien, was willing to assume custody of him. In opposition to the motion, the government proffered that petitioner had three prior convictions in New York, two of which involved criminal possession of a weapon. /2/ After petitioner acknowledged his 1983 and 1986 convictions, the district court denied his motion, remarking that "(t)he weapons charge is evidence to me of a person of relatively desperate character. I am not going to take the risk of releasing him, I'm sorry." Pet. 15; Gov't C.A. Br. 6-7; 6/21/89 Tr. 8. On July 20, 1989, petitioner again moved to revoke the detention order, proffering that a former employer would reinstate him in an auto mechanic's job in Brooklyn. On July 28, 1989, petitioner supplemented the motion, informing the district court that petitioner's cousin, an attorney, had agreed to serve as his custodian. On August 3, 1989, the district court denied the motion in a written order, and petitioner appealed. While that appeal was pending, however, petitioner moved for reconsideration in the district court, and the court of appeals remanded the matter to the district court. On January 3, 1990, the district court denied the motion for reconsideration. Gov't C.A. Br. 7. The next day, petitioner again moved for reconsideration. He reiterated that family members were ready to take custody of him, and contended that he was not likely to flee. He also stated that his arrest made it unlikely that he would ever again be employed as a "mule" for transporting cocaine. Finally, petitioner contended that the length of his pretrial delay weighed in favor of his release. Gov't C.A. Br. 8. 3. On January 10, 1990, the district court denied the motion. Pet. App. 2-4. After reviewing petitioner's record of arrests and dispositions, the charge in the present case, and the potential punishment, the court found that petitioner's "past history of criminal involvement with weapons and his present drug trafficking charge compel the conclusion that he presents a danger to the community." Id. at 3. In a judgment order dated March 8, 1990, the court of appeals affirmed "substantially for the reasons stated" in the district court's January 10 memorandum and order. Id. at 1. ARGUMENT 1. Petitioner contends (Pet. 20-28, 32-34) that his continued detention violates his rights under the Bail Reform Act and the Due Process Clause of the Fifth Amendment. Those factbound claims do not warrant further review by this Court. a. Pursuant to 18 U.S.C. 3142(e), if a judicial officer finds that "no condition or combination of conditions will reasonably assure the appearance of the (defendant) as required and the safety of any other person and the community, such judicial officer shall order the detention of the (defendant) before trial." In order to support a finding based on community safety, the government must present "clear and convincing evidence." 18 U.S.C. 3142(f). To support detention based on unreasonable risk of flight, the government must prove its case by a preponderance of the evidence. Either ground is a sufficient basis upon which to order pretrial detention. United States v. Salerno, 481 U.S. 739, 749-751 (1987). To determine whether conditions of release will reasonably assure a defendant's appearance for trial and the safety of the community, judicial officers must consider (1) the nature and circumstances of the offense charged, including whether it involves narcotics; (2) the weight of the evidence against the defendant; (3) the defendant's history and characteristics, including his criminal history; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. 3142(g). In addition, under 18 U.S.C. 3142(e), subject to rebuttal by the defendant, 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 (inter alia, the statute involved in the present case, the Controlled Substances Act, 21 U.S.C. 801 et seq.). Congress determined that persons charged with such crimes "pose a significant risk of pretrial recidivism" and "that flight to avoid prosecution is particularly high among persons charged with major drug offenses." S. Rep. No. 225, 98th Cong., 2d Sess. 20 (1984) (S. Rep.). Thus, once probable cause exists to believe that a defendant has violated the statute involved in the present case, /3/ "it becomes the task of the defendant to come forward with evidence to meet his burden of production -- that is, evidence to suggest he is either not dangerous or not likely to flee if turned loose on bail." United States v. Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985). See also S. Rep. at 19 ("The Committee believes that it is appropriate in such circumstances that the burden shift to the defendant to establish a basis for concluding that there are conditions of release sufficient to assure that he will not again engage in dangerous criminal activity pending his trial."). This statutory presumption is entitled to substantial and continued weight even if the defendant presents credible evidence to rebut the presumption. United States v. Diaz, 777 F.2d 1236, 1238 (7th Cir. 1985). In the present case, the court of appeals correctly declined to disturb the district court's refusal to overturn the magistrate's detention order. The magistrate and the district court properly weighed the factors identified in 18 U.S.C. 3142(g), and their determinations that petitioner presented a risk of flight, a danger to the community, or both were not erroneous. The offense charged here, drug trafficking, and the surrounding circumstances, which pointed overwhelmingly to petitioner's guilt, placed petitioner squarely within the statutory presumption of risk of flight and danger to the community. See S. Rep. at 20. Petitioner's criminal history, including three arrests on weapons or assault charges and two convictions on weapons or attempted assault charges, reinforces the conclusion that he poses a danger to the community. The magistrate thus had ample grounds to conclude that the government had shown by clear and convincing evidence (see 18 U.S.C. 3142(f)) that petitioner should be detained prior to trial, and the district court had more than sufficient reason to decline to revoke the detention order. /4/ Petitioner's factbound quarrel with those findings warrants no further review. /5/ b. Petitioner contends (Pet. 32-34) that the length of his detention violates the Due Process Clause. Each of the delays in his trial, however, has been excusable under the Speedy Trial Act. See 18 U.S.C. 3161(h)(1)(E) and (h)(1)(F). Indeed, the principal reason for petitioner's present detention was his decision to seek interlocutory review of the court of appeals' rejection of his suppression motion. This Court has now denied that interlocutory petition, and we have so apprised the trial court so that it may place petitioner's case on the calendar for trial. The cases on which petitioner relies are readily distinguishable. See e.g., United States v. Hare, 873 F.2d 796, 801 (5th Cir. 1989) (adjudication of bail issues on case-by-case basis; case remanded for rehearing to consider due process issue); United States v. Gonzales Claudio, 806 F.2d 334, 343 (2d Cir. 1986) (defendants' community ties strong); United States v. Theron, 782 F.2d 1510, 1516 (10th Cir. 1986) (due process issue not addressed; decision made on particular facts of case). They do not conflict with the decision below. 2. Petitioner's related claim (Pet. 28-31) -- that the courts of appeals use conflicting standards of review in detention cases -- is not presented in this case. The court of appeals did not articulate a specific standard of review in deciding this case. Moreover, under any standard of review, the detention in this case was amply justified. The record here -- which includes a charge of drug trafficking, surrounding circumstances that point strongly to petitioner's guilt, uncertainty about petitioner's real address, and petitioner's record of arrests and convictions for weapons offenses or crimes of violence -- contains clear and convincing evidence (see 18 U.S.C. 3142(f)) that petitioner poses both a risk of flight and a danger to the community. The decision of the lower courts to that effect is correct and warrants no further review. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /6/ EDWARD S.G. DENNIS, JR. Assistant Attorney General THOMAS M. GANNON Attorney JULY 1990 /1/ The court of appeals reversed. Pet. 11. Petitioner sought review of that decision, and on June 28, 1990, this Court denied certiorari. Winston v. United States, No. 89-7306. /2/ Petitioner's record of arrests and dispositions shows that (1) on September 26, 1983, after being charged with two felonies, criminal possession of a weapon and assault, he pleaded guilty to attempted criminal mischief, a misdemeanor; (2) on September 26, 1986, after being charged with assault, a felony, and resisting arrest, a misdemeanor, he pleaded guilty to attempted assault, a misdemeanor; and (3) on May 14, 1987, after being charged with criminal possession of a weapon, a felony, and menacing, a misdemeanor, he pleaded guilty to a lesser charge of criminal possession of a weapon, a misdemeanor. Pet. 16 n.3. /3/ The maximum term for a violation of 21 U.S.C. 841(a) and (b)(1)(A)(iii) (1982 & Supp. IV 1986) is life imprisonment. /4/ The magistrate's order was based on her conclusion that petitioner posed "both a risk of flight and of danger to the community." Pet. App. 6. Although the district court's refusal to revoke that order was grounded on its determination that "(d)efendant's past history of criminal involvement with weapons and his present drug trafficking charge compel the conclusion that he presents a danger to the community" (Pet. App. 3), the district court did not question the magistrate's finding that petitioner also posed a risk of flight. /5/ Petitioner relies (Pet. 25) on several cases in which courts have either permitted the release of defendants on bail or have directed lower courts to clarify or reconsider detention orders. Those decisions involved very different facts and, on that basis, are easily distinguishable. See, e.g., United States v. O'Brien, 895 F.2d 810, 811, 817 (1st Cir. 1990) (presumption of flight rebutted by use of electronic monitoring bracelet, posting of new wife's home as security, requirement of daily telephone reports to pretrial services office, and random, unannounced visits to home by pretrial services officer); United States v. Moss, 887 F.2d 333 (1st Cir. 1989) (remand for statement of reasons supporting detention order where record did not permit effective appellate review); United States v. Hare, 873 F.2d 796 (5th Cir. 1989) (remand for reconsideration of detention order in light of due process considerations). /6/ The Solicitor General is disqualified in this case.