United States v. James Jackson, 823 F.2d 4, 2d Cir. (1987)

823 F.
2d 4
UNITED STATES of America, Appellee,

v.
James JACKSON, Defendant-Appellant.
No. 1368, Docket 87-1217.
United States Court of Appeals,

Second Circuit.
Argued May 27, 1987.
Decided June 24, 1987.
Henry J. Steinglass, New York City, for defendant-appellant.

Maria T. Galeno, New York City, Asst. U.S. Atty., S.D.N.Y. (Rudolph W.
Giuliani, U.S. Atty., S.D.N.Y., Robert Hammel, Kerri Martin, Asst. U.S.
Attys., of counsel), for appellee.
Before FEINBERG, Chief Judge, and MINER and MAHONEY, Circuit
Judges.
FEINBERG, Chief Judge:
This appeal requires us once again to examine whether a defendant's pretrial

detention to assure his appearance at trial comports with the Bail Reform Act,
18 U.S.C. Secs. 3141-3156, and the United States Constitution. James Jackson
brings an expedited appeal from an order of the United States District Court for
the Southern District of New York, Richard Owen, J., refusing to set aside a
pretrial detention order entered against Jackson by Magistrate Ruth
Washington. Jackson argues that his detention on grounds of dangerousness is
unconstitutional per se and that the district court abused its discretion in
ordering his detention on the ground of risk of flight. He also contends that his
detention will be so lengthy that it will violate the due process clause whether
on grounds of dangerousness or risk of flight. Because we find that Jackson's
detention on the ground of risk of flight complies with both the statute and due
process, we affirm.
On February 2, 1987, Jackson was arrested on charges of conspiracy to
distribute and to possess with intent to distribute heroin, in violation of 21

U.S.C. Sec. 846. The following day, the government moved before Magistrate
Washington for pretrial detention pursuant to 18 U.S.C. Sec. 3142(e). At the
subsequent detention hearing, both sides proceeded by proffer, and the
magistrate, after stating her findings, ordered Jackson detained pending trial on
grounds of both risk of flight and dangerousness.
Jackson was subsequently indicted with 15 other defendants for participation in

a large narcotics conspiracy. On March 4, the parties appeared before Judge
Owen for the first pretrial conference. After argument by counsel, Judge Owen
denied Jackson's application to set aside the magistrate's order and continued
the detention, apparently only on the ground of risk of flight. The judge set the
case for trial on August 3. However, at the request of some defense counsel,
the trial date was moved to late September; eventually September 21, 1987 was
chosen. At the March 4 conference, Jackson's attorney made clear that he had
no objection to such a trial date.
Later in March, Jackson's attorney sought, unsuccessfully, to have Judge Owen

reconsider his detention order. These efforts were renewed on April 8, when
Jackson obtained new counsel. Under questioning by the court, however,
Jackson's new counsel did not present any new evidence, and the judge adhered
to his prior determination. Jackson subsequently sought review in this court of
the pretrial detention order, and the appeal was argued on May 27.
I. Statutory Issue
5
We first consider Jackson's contention that the district court did not make
adequate findings to support its order of detention on the ground of risk of
flight. Although the district court should have made more concrete findings, we
find no reversible error here.
The issue before the district court on the government's motion was whether any
"condition or combination of conditions will reasonably assure the appearance
of the [defendant]." 18 U.S.C. Sec. 3142(e). To order detention, the court must
find by a preponderance of the evidence that the defendant presents a risk of
flight, and, if it finds such a risk, that no conditions could reasonably assure the
defendant's presence at trial. United States v. Berrios-Berrios, 791 F.2d 246,
250 (2d Cir.), cert. dismissed, --- U.S. ----, 107 S.Ct. 562, 93 L.Ed.2d 568
(1986). In making its determination, the court should look to the nature and
circumstances of the offense charged, the weight of the evidence against the
defendant and the history and characteristics of the defendant. 18 U.S.C. Sec.
3142(g). The court's factual findings will normally be reviewed under a clearly
erroneous standard, United States v. Gotti, 794 F.2d 773, 778 (2d Cir.1986), but
where the court does not consider the statutory factors in reaching its
conclusion, we will apply a more flexible standard of review. United States v.
Shakur, 817 F.2d 189, 197 (2d Cir.1987).
7
In this case, the district court found that Jackson presented a risk of flight such
that no conditions could reasonably assure his presence at trial. Rather than
making explicit findings of fact, however, the court relied principally on the
statutory presumption that no conditions can reasonably assure a defendant's
presence at trial where the defendant is charged with a narcotics offense with a
possible penalty of imprisonment for ten years or more. See 18 U.S.C. Sec.
3142(e). The district court also relied on statements by Jackson's mother to
government agents that her son did not live with her and on the absence of male
clothing in her home as revealing a "state of mind as to rootlessness." Beyond
these explicit findings, the district court cited only "all the other factors." Since
this consideration of the statutory factors on the record was inadequate, we
apply a "flexible standard" of review. Nonetheless, we affirm.
At the detention hearings before the magistrate and the district court, the
government charged that Jackson is the "mastermind" of a major heroin
distribution network operating from Connecticut to Washington, D.C. It
contended that it had overwhelming evidence from nine different confidential
sources to support its allegations, including first-hand testimony of Jackson's
involvement in heroin deals. In addition, the government stated that it had a
ledger, seized from the apartment of Jackson's girl friend, showing substantial
gross sales by Jackson's organization. The government also argued that
Jackson's organization had used violence to maintain its territory and collect
payments due it and expressed its intention to seek a continuing criminal
enterprise indictment against Jackson that would carry a maximum sentence of
life imprisonment without parole.
As to Jackson's personal characteristics, the government cited a criminal record

dating back 22 years. It asserted that although Jackson can show only sporadic
employment at best, he has owned expensive cars registered in the names of
others. Finally, the government added that Jackson has used a number of
aliases, has stated that he lived from hotel to hotel and has shown skill in
avoiding surveillance.
10
In challenging the detention order in this court, Jackson relies principally on

the district court's failure to make findings and to explicitly consider possible
conditions of release. While the district court was remiss in this regard, such
failure is not necessarily reversible error if the record clearly supports the
district court's ultimate conclusions. See United States v. Martir, 782 F.2d
1141, 1146-47 (2d Cir.1986). Were this a closer case, however, we would not
hesitate to remand to the district court for further findings.
11
On the merits of the detention order, however, Jackson offers little to rebut the
government's showing. Jackson cites his proffer to the district court that his
mother made her statement to the government agents under pressure, that he did
not flee prior to his arrest although he knew he was under investigation, that in
the past he did not fail to appear to face serious charges, that various parties
have offered $250,000 worth of real estate as collateral for his release and that
he has a job waiting for him with his local pastor.
12
In light of the combination of the government's proffer and the statutory

presumption in a narcotics case, we find that the government satisfied its
burden. We begin, of course, with the presumption imposed by Congress that,
following a narcotics indictment under which the defendant faces at least ten
years of imprisonment, no conditions will suffice to assure appearance at trial.
This presumption of risk of flight continues to furnish "some weight" in favor of
detention even when the defendant has come forward with evidence to rebut it.
Martir, 782 F.2d at 1144.
13
In addition to the presumption, the government has shown that each of the
statutory factors weighs in favor of detention in this case. The nature of the
offense is such that Jackson faces the possibility of a severe sentence and, as
already noted, the crime charged "involves a narcotic drug." 18 U.S.C. Sec.
3142(g)(1). As to the weight of the evidence, the government apparently has
numerous informants as well as physical evidence to support its charges.
Indeed, Jackson has made no significant attack on the government's proffered
evidence. As to Jackson's personal characteristics, the government has shown
an extensive criminal history, a general lack of ties to the community, hidden
assets and the use of false names. In the absence of a substantial response by
the defendant, we have held similar facts adequate to satisfy the statutory
requirements for pretrial detention to assure presence at trial. See Martir, 782
F.2d 1141; United States v. Gonzales Claudio, 806 F.2d 334, 338-39 (2d
Cir.1986). Accordingly, on these facts we cannot say that the district court
committed reversible error under the statute in ordering pretrial detention.
II. Constitutional Issue

14
Jackson also contends that his continued pretrial detention on the ground of risk
of flight violates the due process clause of the fifth amendment. It is settled in
this circuit "that at some point and under some circumstances, the duration of
pretrial detention [to assure presence at trial] becomes unconstitutional."

Gonzales Claudio, 806 F.2d at 339. We have previously identified the factors a
court must consider in deciding whether "a defendant's pretrial detention
exceeds the 'flexible standards of due process.' " United States v. MelendezCarrion, 820 F.2d 56, 59 (2d Cir.1987). The court must consider "the length of
detention that has occurred and the non-speculative aspects of future detention,
the extent to which the prosecution bears responsibility for the delay in starting
the trial, and the facts concerning risk of flight." Id. at 59 (quoting Gonzales
Claudio, 806 F.2d at 343). On the facts of this case, we find no due process
violation at this time.
15
We begin with the length of detention. The defendant has been held for nearly
four months as of the argument of this appeal. Were that the full extent of his
detention, it would not be long enough to carry the day for Jackson. His trial,
however, is not scheduled to begin until late September, when his detention
will have lasted nearly eight months. Beyond that, the length of detention
becomes somewhat speculative: Jackson argues that the trial will continue until
January. The government contends that proceedings may end much sooner.
One can reasonably say at this time, however, that Jackson's detention may
well last more than eight months. Although detentions of this and greater
duration on the ground of risk of flight have been upheld by this court, see
Melendez-Carrion; Berrios-Berrios, 791 F.2d at 252, a potentially long trial
commencing over seven months after detention has already begun raises grave
due process concerns for the government to allay.
16
In response, the government relies on its showing that the trial date was
originally set for early August, but was postponed until late September at the
defendants' request and with the consent of Jackson's attorney. In light of this
strategic decision to postpone the trial, Jackson cannot blame the government
for the delay that resulted, which accounts for nearly seven additional weeks of
pretrial detention. Thus, at this time, we do not find that the length of the
detention weighs in Jackson's favor.
17
As to the second factor, the extent of the government's responsibility for the
delay in starting the trial, the same considerations considerably weaken
Jackson's argument. Given the circumstances of the case, we can hardly
condemn the government for not commencing the trial before the September
date. Jackson has, however, alleged that the government has been dilatory in
producing discovery, and the government, for its part, has indicated an
intention to file a superseding indictment that would add more charges against
Jackson and could further complicate this multi-defendant criminal action.
These factors have not yet resulted in a postponement of the September trial
date, so they cannot currently be viewed as contributing to a delay. If the trial is

postponed further, however, we would take any government responsibility for
the delay very seriously, in considering a renewed bail application by Jackson.
18
We have previously indicated that when the government moves for pretrial
detention it has an obligation to arrange for the trial as quickly as possible,
using "extraordinary means" if necessary. See United States v. Salerno, 794
F.2d 64, 79 n. 2 (2d Cir.1986) (Feinberg, C.J., dissenting), rev'd, --- U.S. ----,
107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Gonzales Claudio, 806 F.2d at 342 n.
5. We write now to make completely clear that we will not view this obligation
of the government lightly. At this time, however, we cannot say that the
government bears significant responsibility for the delay in this case.
19
Finally, we turn to the strength of the evidence indicating risk of flight. In view
of the circumstances of this case, "we are entitled to apply a broader standard of
review in determining the extent to which the facts regarding risk of flight ...
have significance on the constitutional issue of whether continued detention
violates due process limitations." Gonzales Claudio, 806 F.2d at 343 (citations
omitted). Applying this standard to the evidence discussed in Part I, we
conclude that the government has made a very strong showing of risk of flight.
Given the lack of support Jackson can claim from the other factors at this time,
his continued detention does not violate the due process clause of the fifth
amendment.
20
Since we affirm Jackson's continued detention on risk of flight grounds, we

need not consider whether he may properly be detained as a danger to the
community.1
21
The judgment of the district court is affirmed.
We do note, of course, that the Supreme Court has recently held that such
detention is not unconstitutional per se. See United States v. Salerno, --- U.S. ---, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)

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823 F.

UNITED STATES of America, Appellee,

United States Court of Appeals,

Henry J. Steinglass, New York City, for defendant-appellant.

This appeal requires us once again to examine whether a defendant's pretrial

distribute and to possess with intent to distribute heroin, in violation of 21

Jackson was subsequently indicted with 15 other defendants for participation in

Later in March, Jackson's attorney sought, unsuccessfully, to have Judge Owen

As to Jackson's personal characteristics, the government cited a criminal record

In challenging the detention order in this court, Jackson relies principally on

In light of the combination of the government's proffer and the statutory

II. Constitutional Issue

pretrial detention [to assure presence at trial] becomes unconstitutional."

date, so they cannot currently be viewed as contributing to a delay. If the trial is

Since we affirm Jackson's continued detention on risk of flight grounds, we

The judgment of the district court is affirmed.

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