IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-20058
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellants,
versus
RICKY KAY and
KIMBERLY KAY,
Defendants-Appellees.
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Appeal from the United States District Court for the
Southern District of Texas
(95-CR-303-7)
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March 15, 1996
Before GARWOOD, SMITH and EMILIO M. GARZA, Circuit Judges.*
GARWOOD, Circuit Judge:
The United States appeals the district court’s order granting
defendants Ricky Kay and Kimberly Kay’s motion for revocation of
pretrial detention.
Facts and Proceedings Below
Ricky Kay and Kimberly Kay (the “Kays”) were indicted on
December 4, 1995, along with ten other co-defendants, on multiple
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
charges of large-scale cocaine trafficking1 in violation of the
Controlled Substances Act, 21 U.S.C. § 801, et seq. On December
12, 1995, the magistrate judge conducted a detention hearing at
which the prosecutor presented evidence that the Kays should be
detained because they posed a flight risk and because they were a
danger to the community. Based on the government’s evidence, the
magistrate judge ordered the Kays detained because no conditions or
combination of conditions on release would assure the safety of the
community.2
1
Ricky Kay (“Ricky”) was indicted for one count of conspiracy
to possess with intent to distribute and distributing more than
five kilograms of cocaine, four counts of aiding and abetting the
possession with intent to distribute 500 grams or more of a mixture
containing a detectable amount of cocaine, and two counts of aiding
and abetting the possession with intent to distribute five
kilograms or more of a mixture containing a detectable amount of
cocaine. Kimberly Kay (“Kimberly”) was indicted for one count of
conspiracy to possess with intent to distribute and distributing
more than five kilograms of cocaine, and one count of aiding and
abetting the possession with intent to distribute 500 grams or more
of a mixture containing a detectable amount of cocaine.
2
Drug Enforcement Administration Supervisory Special Agent
Michael A. Braun testified for the prosecution at the detention
hearing. He testified that the Kays supplied as much as fifteen
kilos of cocaine per month to Bernard Dale, the person described as
the manager of the drug conspiracy. Braun also testified that (1)
Ricky had been identified as the source of supply of cocaine in
another criminal investigation; (2) in addition to routinely
supplying cocaine to Dale, Ricky offered to transport drugs in
conjunction with his job as a truck driver; (3) on a previous
occasion, approximately $45,000 was seized from the trunk of a car
that Ricky was driving, and a narcotics dog alerted to the presence
of narcotics in the vicinity where the money was located in the
vehicle (Ricky waived all interest in the money); (4) Kimberly and
the Kays’ children were regularly present during the routine
transactions with Dale; and (5) on an occasion when Ricky was not
home, Kimberly conducted a transaction, taking one of her children
with her to obtain two or three kilos of cocaine from the Kays’
source of supply and receiving $45,000 for the transaction.
In response, the Kays proffered the testimony of eight
witnesses present at the detention hearing. The witnesses’
2
The Kays filed motions for revocation and/or amendment of the
detention order with the district court pursuant to 18 U.S.C. §
3145(b). They argued in their motions that they presented evidence
at the detention hearing to rebut the presumption that they were
dangers to the community. At a hearing before the district court,
counsel for Ricky informed the court that pretrial services had
recommended the Kays be released on $50,000 bond. Counsel also
stated that Ricky needed to assist in his own defense by obtaining
names and phone numbers to which he did not have access in jail and
that Kimberly had “two children that need[ed] to be taken care of.”
No additional evidence was taken in the district court. After
determining that pretrial services had not recommended that any
other co-defendants be released on bond, the district court stated
“I am going to order that [the Kays] be released on the bonds that
have been recommended by pretrial services.” It does not appear
that the district court reviewed the detention hearing transcript
prior to ordering that the Kays be released.3
proffered testimony was that the witnesses had known the Kays all
of their lives and were shocked by the filing of the charges
against them, that the Kays were members of the community and were
not a danger to the community, that Ricky was employed and was the
sole support for his family, and that Kimberly was a housewife and
was needed at home. In addition, the Kays proffered that they were
not flight risks, that they owned no guns, that they did not deal
drugs out of their home, that their children needed them for
support and care, and that they could post the bond suggested by
the pretrial services’ recommendation.
3
In response to a suggestion by counsel for one of the Kays’
co-defendants that it might be proper for additional co-defendants
to be released on bail even though pretrial services did not
recommend release, the district court stated it would later “take
a look at the detention transcripts or transcript.” The district
court then ordered the Kays released. The prosecutor immediately
3
Later the same day, the prosecutor filed a motion with the
district court for stay of its order granting the Kays’ release.
The district court’s order of the same date denying the stay noted
that the Kays were not flight risks; no mention was made of their
possible danger to the community. We granted the government’s
motion to stay the district court’s order pending resolution of
this appeal. On appeal, the government argues that the district
court’s order is not supported by the proceedings below because the
court failed to conduct a proper balancing of factors, the court’s
finding that the Kays were not a flight risk did not address the
independent basis for detention urged by the government and found
by the magistrate judge, and the Kays failed to rebut the statutory
presumption that they were a danger to the community. The Kays
respond solely that the district court was “merely presuming [they
are] innocent at this time, as custom dictates.”
Discussion
“When the district court acts on a motion to revoke or amend
a magistrate’s pretrial detention order, the district court acts de
novo and must make an independent determination of the proper
pretrial detention or conditions of release.” United States v.
Rueben, 974 F.2d 580, 585 (5th Cir. 1992), cert. denied, 113 S.Ct.
1336 (1993). We review the district court’s order revoking or
amending the magistrate judge’s pretrial detention under a
requested that the court read the detention hearing transcript and
reconsider its order. The district court responded to the
prosecutor’s request only by ordering that the Kays be released on
terms and conditions to be set by the magistrate judge.
4
deferential standard equivalent to abuse-of discretion: absent an
error of law, we will uphold a district court’s order “if it is
supported by the proceedings below.” Id. at 586 (quoting United
States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989)).
There are two sufficient and independent grounds for pretrial
detention under the Bail Reform Act: to assure the appearance of
the defendant, or to insure the safety of the community or another
person. See 18 U.S.C. § 3142(b). If there are no conditions of
release that can assure either the appearance of the defendant or
the community’s safety, then pretrial detention is mandated. 18
U.S.C. § 3142(e); see Rueben, 974 F.2d at 586-87. Because the
government appeals only on the basis of community safety, we limit
our analysis to that ground.
The Bail Reform Act creates a rebuttable statutory presumption
that respecting one indicted for certain drug offenses——those for
which maximum terms of imprisonment of ten years or more are
prescribed by the Controlled Substances Act——no conditions of
release exist that would reasonably assure the community’s safety.
18 U.S.C. § 3142(e); Rueben, 974 F.2d at 586. The risk of
continued narcotics trafficking on bail constitutes a risk to the
community. Hare, 873 F.2d at 798.
Because the Kays were indicted for drug offenses that could
result in terms of imprisonment for ten years or more,4 they bore
4
See 21 U.S.C. § 841(b) (providing for sentence of ten years
to life imprisonment for each drug offense for which Ricky and
Kimberly are charged); id. § 846 (one who conspires to commit a
drug offense is subject to the same penalties as those prescribed
for the offense); 18 U.S.C. § 2 (one who aids or abets a crime is
5
the burden of producing evidence that their release would not pose
a danger to the community. See id.; Rueben, 974 F.2d at 586. The
production of evidence sufficient to rebut the presumption does not
completely negate all probative value of the facts underlying the
presumption; the court may still consider the congressional finding
that drug offenders pose a special risk of dangerousness to
society. Hare, 873 F.2d at 798-99. But the burden of persuasion
then rests with the government. Id. In determining whether the
government meets its burden, the district court must consider the
factors set forth in 18 U.S.C. section 3142(g).5
After reviewing the evidence as a whole, we conclude that the
district court’s order to release the Kays on bond is not supported
guilty of the crime).
5
These factors include:
“(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence or
involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
including——
(A) his character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the
community, community ties, past conduct,
history relating to drug or alcohol abuse,
criminal history, and record concerning
appearance at court proceedings; and
(B) whether, at the time of the current
offense or arrest, he was on probation, on
parole, or on other release pending trial,
sentencing, appeal, or completion of a
sentence for an offense under Federal, State,
or local law; and
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
person’s release.” 18 U.S.C. § 3142(g).
6
by the proceedings below. It is at best doubtful that the Kays
proffered evidence sufficient to rebut the presumption of their
danger to the community.6 See Reuben at 587. Even if they did
produce evidence sufficient to rebut the presumption, it appears
that the district court considered neither the statutory factors
nor the government’s evidence and the congressional determination
that continued drug dealing can pose a significant danger to the
community. The only factor that the district court mentioned when
it ordered that the Kays be released was that pretrial services had
recommended bond. In its order denying the government’s request
for a stay, the district court stated, “[t]he Court is of the
opinion that the evidence fails to support the finding that these
defendants are a flight risk. They in fact surrendered themselves
to the agents and are permanent residents of this District.” This
6
The proffered conclusory statements to be made by life-long
acquaintances of the Kays (who were unaware of their drug
trafficking) that the Kays were no danger to the community are not
probative of the Kays’ dangerousness. Cf. e.g., Nordgren v.
Hafter, 789 F.2d 334, 339-40 n.4 (5th Cir. 1986) (conclusory
statements insufficient to establish genuine issue of material fact
and, thus, avoid summary judgment), cert. denied, 107 S.Ct. 177
(1986). It is doubtful that the Kays’ own proffered testimony that
they owned no guns could rebut the presumption of danger to the
community by continued drug trafficking. See Hare, 873 F.2d at 799
(approving the magistrate’s holding that the defendant would be a
danger to the community because he offered no evidence that he
would not continue trafficking drugs). It may be a closer question
whether the Kays’ own proffered testimony that they did not deal
drugs out of their home rebutted the presumption. We need not
reach the issue whether their general protestations of innocence,
without specific denials or explanations of the government’s
evidence, would be sufficient to rebut the presumption. Cf. BMG
Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (holding that no
genuine issue of fact was raised to dispute the defendant’s intent
to defraud by his “conclusory, self-serving statement” giving a
non-fraudulent reason for his action).
7
statement suggests not only that the district court failed to weigh
all of the section 3142(g) factors, but also that it did not
consider the Kays’ danger to the community at all. Consequently,
we hold that the district court’s order to release the Kays on bond
is not supported by the proceedings below.
Conclusion
For the foregoing reasons, we VACATE the district court’s
order to release the Kays’ on bond and REMAND for consideration
under the appropriate standards whether any condition or
combination of conditions for release of the Kays will reasonably
assure the safety of the community as provided in section 3142(e).
VACATED and REMANDED
8