
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          September 22, 1993    [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 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.                                  __________________                                  __________________          _______________          * Of the Western District of Louisiana, sitting by designation.                      Per Curiam.   Defendant Michael E. Sullivan appeals                      __________            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                                         -2-                                          2            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                                         -3-                                          3            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                                         -4-                                          4            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                                            ____________________            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.                                           -5-                                          5            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                                         -6-                                          6            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.                       _________                                         -7-                                          7
