United States District Court, Northern District of Illinois, E.D
November 7, 1985
UNITED STATES OF AMERICA, PLAINTIFF,
ROOSEVELT DANIELS, SANDRA CAMPBELL, TROY CAMPBELL, AND LAWRENCE LEE, ALSO KNOWN AS CHINAMAN, DEFENDANTS.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the defendants' motion to review and
revoke the Magistrate's detention order. For the reasons
stated herein, the defendants' motion is denied.
Defendants Sandra Campbell, Troy Campbell and Lawrence Lee
join in a motion to review and revoke the Magistrate's
detention order entered on October 2, 1985. On April 16, 1985,
defendants were charged in complaint 85 CR 232 with conspiring
to possess cocaine with intent to distribute. Each defendant
appeared before Magistrate James T. Balog on those charges
and, without objection by the government, was released on
On July 9, 1985, these defendants were indicted in
United States v. Roosevelt Daniels, et al., 85 CR 232, charging
each of them with conspiracy to distribute and possess with
intent to distribute cocaine. Sandra Campbell was also charged
with racketeering, in violation of 18 U.S.C. § 1962(c).
Lawrence Lee was also charged with distribution of cocaine. The
other defendant, Roosevelt Daniels, was ordered detained by
Magistrate Balog after his arrest on April 15, 1985. The
detention order was affirmed by the Seventh Circuit Court of
Appeals. United States v. Daniels, 772 F.2d 382 (7th Cir.
1985). He has been incarcerated in the Metropolitan
Correctional Center (MCC) since that date.
In August 1985 the Federal Bureau of Investigation (FBI)
instituted court-ordered monitoring of two telephones on the
13th floor of the MCC, the floor on which Daniels was
detained. The monitoring of the above-described telephones
revealed that Daniels utilized the telephones to conduct his
narcotics operation while confined in the MCC. During
approximately the first 20 days, Daniels called Sandra
Campbell approximately 24 times, and Campbell, using a
three-way calling feature, patched Daniels through to his
associates and employees in his narcotics business.
Based on these conversations, the government procured a
search warrant for the residence of Sandra Campbell. The
warrant was executed at 1:20 a.m. on September 6, 1985, and
the two Campbells and Lee were arrested. These three
defendants appeared before Magistrate Balog on September 6,
1985 in complaint 85 CR 619. The government did not pursue
formal charges and these defendants were discharged.
On September 23, 1985, defendant Lawrence Lee was arrested
on complaint 85 CR 619 and charged with conspiring to possess
with intent to distribute cocaine between August 7, 1985 and
September 24, 1985. On September 24, 1985, defendants Sandra
Campbell and Troy Campbell were arrested on complaint 85 CR
619. At their arraignment on September 24, the government
informed Magistrate Balog that it considered defendants to be
dangers to the community and moved for their detention.
Magistrate Balog ordered defendants held for ten days,
excluding weekends and holidays, under 18 U.S.C. § 3142(d), in
order to give this Court the opportunity to rule on revocation
of the bond set in complaint 85 CR 232.
Defendants' counsel and the government appeared before this
Court on September 26, 1985. At that time, the Court agreed
that, since Magistrate Balog was going to have to hold a
preliminary hearing on complaint 85 CR 619 and the evidence
offered by the government would be the same as that offered at
a detention hearing, it made sense to have a combined
preliminary hearing/detention hearing before Magistrate Balog.
On September 27, 1985, the parties appeared before
Magistrate Balog and scheduled a detention hearing for the
next day. On September 28, 1985, the detention hearing was
held at the MCC. At that hearing, the Magistrate found
probable cause to support complaint 85 CR 628, which
supersedes 85 CR 619, as to the two Campbell
defendants and Lee. At the hearing, the various defense
counsels were given the opportunity to present testimony and
to examine the government's witnesses. Although defense
counsels recognized that there was a rebuttable presumption in
favor of continued detention, they declined to present any
evidence. Instead, they relied chiefly on the untimeliness of
the detention hearing under 18 U.S.C. § 3142(f).
Magistrate Balog rejected the untimeliness argument and, in
light of his finding of probable cause, the unrebutted
evidence that the defendants constituted a danger to the
community, and the unrebutted presumption that no combination
of conditions could reasonably assure the appearance of the
defendants and the safety of the community, ordered the
defendants detained pending trial pursuant to 18 U.S.C. § 3142(e),
(f) and (g). See Detention Order, United States v.
Daniels, No. 85 CR 628 (N.D.Ill. October 2, 1985) slip op. at
5. The defendants have filed this motion, pursuant to 18 U.S.C. § 3145(b),
to revoke the detention order.
A. Timeliness of Government's Request for Pretrial
Pretrial detention under 18 U.S.C. § 3142(e) may be ordered
only after a hearing pursuant to subsection (f). United States
v. Alatishe, 768 F.2d 364, 367 (D.C. Cir. 1985). § 3142(f)
provides in pertinent part:
The hearing shall be held immediately upon the
person's first appearance before the judicial
officer unless that person, or the attorney for
the Government, seeks a continuance. Except for
good cause, a continuance on motion of the person
may not exceed five days, and a continuance on
motion of the attorney for the Government may not
exceed three days. During a continuance, the
person shall be detained. . . .
18 U.S.C. § 3142(f).
Defendants argue that this language from § 3142(f), standing
alone, authorizes pretrial detention only where the government
moves for a hearing under subsection (f) at the time of the
accused's "first appearance." Defendants further contend that
the government failed to move for a § 3142(f) pretrial
detention hearing on at least two occasions. First, defendants
assert that the appearance before Magistrate Balog on September
6, 1985, at which no formal charges were brought and the
defendants were ordered released, constitutes their first
appearance in this case. Second, defendants claim that the
appearance before Magistrate Balog on September 24, 1985, at
which they were arraigned on formal charges in this case,
constitutes their first appearance in this case. If either
September 6 or 24 is determined to be their first appearance in
this case, defendants conclude that the September 28, 1985
detention hearing occurred too late under § 3142(f).
The government counters that the ten-day temporary detention
period, provided for by 18 U.S.C. § 3142(d), applies to this
case, as the Magistrate properly found. Further, the government
argues that the immediate hearing requirement under § 3142(f)
is not triggered until the ten-day temporary detention period
expires or until the motion to revoke the prior conditional
release is ruled upon. In this case, the government argues that
§ 3142(f) was not triggered until September 27, 1985, when
Magistrate Balog received this case back from this Court with
instructions to combine the motion to revoke the defendants'
conditional release with their detention hearing. Therefore,
the government concludes that the September 28, 1985 detention
hearing was timely under § 3142(f).
The Court agrees with the government's argument and finds
United States v. Alatishe, 768 F.2d 364 (D.C. Cir. 1985) to be
dispositive of the timeliness issue. At the time of his initial
appearance, the defendant was on probation in connection with a
felony conviction in the District of Columbia. Accordingly,
pursuant to § 3142(d), the government requested the court to
detain the defendant for ten days to permit
revocation of defendant's probation. The Magistrate granted
the government's request, ordered the defendant temporarily
held without bond, and scheduled a combined detention and
preliminary hearing for the next business day.
After a hearing, the Magistrate found that probable cause
existed on defendant's new charges and continued the temporary
detention in order to await action on the probation
revocation. Finally, when it appeared that no action would be
taken on the probation revocation within the ten-day temporary
detention period, the government announced that it would seek
pretrial detention under § 3142(e) and (f). After a further
detention hearing under § 3142(e) and (f), the Magistrate made
the requisite findings for defendant's pretrial detention under
§ 3142(e), (f) and (g). The district court held that the
government's failure to seek detention initially under §
3142(e) and (f) constituted a waiver of its right to so move
and therefore the detention hearing under § 3142(f) could not
have been timely.
In reversing the district court and affirming the
Magistrate, the Court of Appeals for the District of Columbia
Circuit held that the government did not waive its right to
move for a detention hearing under § 3142(f) merely because it
first moved for temporary detention under § 3142(d). Alatishe,
768 F.2d at 368. In support of its holding, the D.C. Circuit
found that the plain language of § 3142(d) "contemplates that,
in the event that temporary detention does not result in
revocation of a prior conditional release, the individual may
still be subject to a pretrial detention order pursuant to
3142(e). Id. The D.C. Circuit then followed with its holding
disposing of the timeliness issue in the present case:
In light of the clear congressional intent
expressed in 3142(d) to allow pretrial detention
in these circumstances, we interpret 3142(f) to
require that, in such cases, the Government move
for a detention hearing immediately upon, or
before, the expiration of the ten-day period
under subsection (d).
Id. Therefore, if the defendants here were properly detained
temporarily under § 3142(d), the detention hearing under §
3142(e) and (f) was timely.
§ 3142(d) provides for temporary detention if.
(1) the person —
(A) is, and was at the time the offense was
committed, on —
(i) release pending trial for a felony under
Federal, State, or local law;
18 U.S.C. § 3142(d). In this case, Magistrate Balog made it
clear at the defendants' first appearance on September 24,
1985, that he ordered them detained under § 3142(d) for ten
days or until such time as this Court could rule on revoking
their probation. (Tr. 10). The Magistrate noted that these
defendants had appeared before him in April and that he had set
bond and conditions for their release at that time. (Tr. 6). In
fact, Magistrate Balog noted the possibility that the new
charges in complaint 85 CR 628, then 85 CR 619, could provide
the basis for a later detention hearing. (Tr. 10).
On September 27, 1985, Magistrate Balog made the exact same
ruling on the interplay between § 3142(d) and (f) as did the
Alatishe court. The Magistrate held that the requirements for a
§ 3142(f) detention hearing are tolled until the court which
set the defendants' bond on the old charges either revokes or
denies the motion to revoke, thus ending the ten-day temporary
detention period under § 3142(d). (Tr. 5). Therefore, the
Magistrate concluded that the § 3142(f) detention hearing
requirements began to run on September 27, 1985, when he
received the motion to revoke for consolidated ruling from this
Court. See Transcript of September 28, 1985 Proceeding, p. 12.
In light of the interpretation of § 3142(d) and (f) in
Alatishe and in light of Magistrate Balog's consistent and
correct rulings on the issues of temporary detention under §
3142(d) and the detention hearing requirements under § 3142(f),
the Court finds that the detention hearing conducted on
September 28, 1985, was timely
under § 3142(f). The Court agrees with the Magistrate that
September 6, 1985, could not be the defendants' first
appearance because no formal charges were brought at that time.
(Tr. 11). In addition, the Court notes that Magistrate Balog
offered to conduct the detention hearing on the afternoon of
September 27, 1985.
B. Adequacy of Detention Hearing and Findings
Having determined that the September 28 detention hearing
was timely, the Court now considers whether that hearing
satisfies the procedural requirements of § 3142(f) and whether
the Magistrate properly ordered the defendants detained on the
basis of the evidence presented at that hearing. Pursuant to §
3142(e), in cases in which the judicial officer finds probable
cause to believe that the defendant committed a violation of
the Controlled Substances Act (CSA), punishable by ten years or
more, a rebuttable presumption arises that no conditions of
release will be adequate to assure the appearance of the
defendant and the safety of the community. 18 U.S.C. § 3142(e).
See also Alatishe, 768 F.2d at 370. Finally, upon motion of a
detainee to a district court for review of a detention order,
the district court should exercise independent consideration of
all facts properly before it. United States v. Freitas,
602 F. Supp. 1283, 1293 (N.D.Cal. 1985).
After the detention hearing on September 28, 1985,
Magistrate Balog issued written findings pursuant to § 3142(i)
in a six-page order. United States v. Daniels, No. 85 CR 628
(N.D.Ill. October 2, 1985) slip op. The written order based its
detention holding on fourteen separate written findings. After
reiterating his finding of probable cause, Magistrate Balog
followed the rebuttable presumption under § 3142(e) that no
condition or combination of conditions will reasonably assure
the safety of the community. Id. at 5. The Magistrate further
found that the defendants had not rebutted this presumption.
In reviewing Magistrate Balog's findings, this Court
reviewed the written detention order and the tape recordings
of the September 28 detention hearing. In those tape
recordings, the government presented an FBI special agent as
its witness. This witness was subject to direct and
cross-examination. Each defense counsel cross-examined the
special agent thoroughly in an effort to attack the
government's showing of probable cause. However, none of the
defense counsel presented documentary or testimonial evidence
in an effort to establish that the defendants are neither
dangers to the community nor risks of flight.
On the basis of this record, the Magistrate's determination
that no conditions of release could reasonably assure the
appearance of the defendants and the safety of the community
was proper. Alatishe, 768 F.2d at 371.
For the reasons stated above, the Court affirms the
Magistrate's pretrial detention order. Accordingly, the
defendants' motion to revoke the detention order pursuant to
18 U.S.C. § 3145(b) is denied.
IT IS SO ORDERED.
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