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UNITED STATES v. ALLEN

March 12, 1985

UNITED STATES OF AMERICA
v.
WILLIAM EMANUEL ALLEN, ANTHONY SBERNA, JOAN SBERNA



The opinion of the court was delivered by: DIAMOND

 DIAMOND, J.

 On February 12, 1985, a Grand Jury returned a thirteen-count indictment charging defendant William Emanuel Allen and defendant Anthony Sberna with, among other offenses, a number of violations of the Controlled Substances Act, including a drug conspiracy involving cocaine and heroin, 21 U.S.C. § 846, possession with intent to distribute cocaine and heroin, 21 U.S.C. § 841(a)(1), and, as to defendant Allen alone, engaging in a continuing criminal enterprise, 21 U.S.C. § 848(a)(1). *fn1"

 A detention hearing pursuant to the Bail Reform Act of 1984, Pub.L.No. 98-473, §§ 202-210, 98 Stat. 1976-87 (codified at 18 U.S.C. §§ 3141-50) ("Act") was held before Magistrate Ila Jeanne Sensenich, who, on February 22, entered written orders of detention pending trial as to each of the defendants. Subsequently, each defendant filed a motion pursuant to 18 U.S.C. § 3145(b) to revoke or amend the order of detention entered by the magistrate, and, on March 7, 1985, a hearing was held on those motions before this member of the court.

 Several threshold issues raised by the defendants must be addressed. First, the defendants argue that the Act is unconstitutional as applied to them since they are charged with committing crimes prior to October 12, 1984, the effective date of the Act. While the matter before the court has to do with detention pending trial, and the matter before the court in United States v. Miller, 753 F.2d 19 (3d Cir. 1985), had to do with detention pending appeal, we believe nevertheless that the rationale and ruling of the court in Miller applies as well to the case sub judice and forecloses in this court the defendants' Ex-Post-Facto challenge to the constitutionality of the Act.

 The defendant Allen next contends in paragraph 7 of his motion to revoke or amend that the application of the Act to him violates "the statutory doctrine that laws are presumed to be prospective in application, absent, express congressional intent to the contrary."

 The short answer to this contention is that the Act is being applied prospectively to both of these defendants, since the Act became effective four months prior to the return of the indictment and the subsequent arrest and detention of the defendants. Cf. United States v. Mitchell, 600 F. Supp. 164 (N.D.Cal. 1985).

 The defendant Allen contended at the review hearing that he was entitled to a hearing de novo, while defendant Sberna insisted that the court should be limited to a review of the record of the magistrate's hearing.

 The language of 18 U.S.C. § 3145 providing for the review of release and detention orders by the court having original jurisdiction over the offense appears to confer broad discretion in that court to re-examine all aspects of those orders in order to make an independent decision as to whether they should be revoked or amended. There is nothing in the Act which precludes the taking of additional evidence, or "information" as § 3142(f) sometimes refers to it -- particularly if it is contended, for example, that a relevant change in circumstances has occurred. And, in view of the provisions of § 3142(f) that the "rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information" at a detention hearing, there would appear to be no practical reason to preclude the court from utilizing the transcript and record of the earlier detention hearing as the basis for findings of fact. Of course, there are substantial reasons of judicial economy and speedy determination of the matter to favor such a procedure.

 Accordingly, at the review hearing, the court admitted the transcripts and exhibits of the detention hearing held before the magistrate and permitted the parties to supplement the record with additional "information."

 The defendants raise several issues concerning the construction of the Act with regard to the triggering of the rebuttable presumption "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community" which arises under § 3142(e) upon a finding by the judicial officer 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. § 801 et seq.).

 The defendants argue that the judicial officer may not rely on the indictment charging a triggering offense as the basis for a finding of the requisite "probable cause to believe," but, rather, that the government must produce independent evidence as the basis for such a finding.

 Section 3142(e) provides for the triggering of a rebuttable presumption in two distinct circumstances. First, it provides that,

 
. . . a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the judge finds that /--
 
"(1) the person has been convicted of a Federal offense that is described in subsection (f)(1), or of a State or local offense that would have been an offense described in subsection (f)(1) if a circumstance giving rise to Federal jurisdiction had existed;
 
"(2) the offense described in paragraph (1) was committed while the person was on release pending trial for a Federal, State, or local offense; and
 
"(3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1), whichever is later.

 It should be noted that this presumption pertains only to the question of "safety" and that the facts which trigger the presumption have to do with past convictions.

 In addition, subsection (e) provides for a second presumption that "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." This presumption, of course, relates to both "appearance" and "safety".

 There is ample authority for the proposition that an "indictment is a determination of a probable cause by the grand jury" and is sufficient without more to satisfy the probable cause requirements of the Fourth Amendment for the issuance of a warrant of arrest. Wright, Federal Practice and Procedure: Criminal 2d § 151, citing Gerstein v. Pugh, 420 U.S. 103, 117 n.19, 95 S. Ct. 854, 865 n.19, 43 L. Ed. 2d 54 (1975); Giordenello v. United States, 357 U.S. 480, 487, 78 S. Ct. 1245, 1250, 2 L. Ed. 2d 1503 (1958).

 Or, as stated by Professor Moore:

 
The Fourth Amendment protects against arrest unless there is probable cause to believe that a crime has been committed and that the person sought to be arrested committed it. The finding of an indictment by a grand jury conclusively establishes this element of probable cause . . . (footnotes omitted) citing Giordenello, supra.

 8 J. Moore, Moore's Federal Practice, para. 9.02[2] (2d ed. 1984).

 And, the grand jury process is entitled to a presumption of regularity. See, In Re Grand Jury Proceedings, 632 F.2d 1033 (3d Cir. 1980).

 Nevertheless, the Act is not clear or explicit on the question of whether the indictment may be used to trigger the second presumption under § 3142(e). It provides only, as to the second presumption, that it arises if "the judicial officer finds that there is probable cause to believe that the person committed an offense . . ." § 3142(e). (emphasis added).

 In view of the ambiguity in the Act, resort to the legislative history is permissible. See Sutherland Stat. Const. § 48.06 (4th Ed.). The principal source of legislative history is found in the report of the Senate Committee on the Judiciary, S.Rep.No. 98-225, 98th Cong., 1st Sess., reprinted in 1984 U.S. Code Cong. & Ad. News at 1-40 (Supp. 9A). (Subsequent references to this report will appear at times as S.R. followed by the page number.)

 We believe that a fair reading of the Act in conjunction with the legislative history supports the conclusion that the judicial officer must have a factual basis independent of the fact that an indictment has been returned upon which to make a finding of probable cause ...


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