USCA1 Opinion
September 22, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1856
UNITED STATES,
Appellee,
v.
MICHAEL SULLIVAN,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Donald E. Walter,* U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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Richard E. Bachman on brief for appellant.
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A. John Pappalardo, United States Attorney, and Paula J.
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DeGiacomo, Assistant United States Attorney, on brief for
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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
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States v. Valencia-Lucena, 988 F.2d 228, 233-35 (1st Cir.
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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.,
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United States v. Moss, 887 F.2d 333, 337 (1st Cir. 1989) (per
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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
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id. 841(b)(1)(D). The presumption would thus apply here
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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
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F.2d 1412, 1416 (1st Cir. 1991) (per curiam); United States
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v. Vargas, 804 F.2d 157, 163 (1st Cir. 1986) (per curiam).
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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-
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50 & n.11 (5th Cir. 1992); United States v. Barnes, 890 F.2d
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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
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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
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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
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789, 793 (1991) (risk of flight need only be proven by
preponderance of evidence); Dillon, 938 F.2d at 1416 (same).
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Affirmed.
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