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[NOT FOR PUBLICATION]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.
__________
from

an order of

U.S.C.

3142(e).

Defendant Michael E. Sullivan appeals

pretrial detention imposed

He

is

distribute

marijuana under

facts

sufficiently

are

magistrate
shown to
flight.

with

21 U.S.C.

set

judge determining
pose both a danger

charged

conspiring

841(a), 846.

forth in
that

pursuant to 18

the

the

report

of

defendant had

to the community and

to
The
the
been

a risk of

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
U.S.C.

of

the

3142(e).

whenever there
committed a

flight

argues

This

provision

is probable

contained

states in

cause to

drug offense carrying

ten years or
of

rebuttable presumption

in 18

part

believe that

that,

a person

a maximum prison

term of

more, a presumption arises that he poses a risk

and a

that,

danger to

the

community.

assuming conviction,

his

The defendant

sentence under

the

Sentencing Guidelines would depend on the amount of marijuana

handled by or
States
______

reasonably foreseen by him, see,

___

v. Valencia-Lucena,
_______________

988 F.2d

e.g., United
____ ______

228, 233-35

(1st Cir.

1993), and that

the government offered

no evidence to

effect

detention

The

at

the

triggered, however,
the

Guidelines,

but

hearing.

not by defendant's
rather

by

the

this

presumption

is

likely penalty under

maximum

prison

term

charged.

See,
___

e.g.,
____

-22

prescribed by statute

for the offense

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
is not

maximum term of imprisonment

readily determined by

looking at the

the statutory maximum itself

in 21 U.S.C.
and

varies.

in this case
statute, since

The penalty provisions

841(b) contain a series of maximums--some more

some less

than

ten years--depending

on

the type

and

quantity of drugs.

Marijuana offenses, in particular, carry

ten years

maximum

term of

kilograms were involved.

id.
___

841(b)(1)(D).

only if there

or more

only

Compare id.
_______ ___

if 50

or more

841(b)(1)(A)-(C) with
____

The presumption

would thus apply

were probable cause to

here

believe that defendant

was accountable for at least that quantity of marijuana.

For
course,

the

probable

purposes of
indictment

cause to

offense charged.
F.2d 1412, 1416
v.

triggering
ordinarily

believe
See, e.g.,
___ ____

one-count

presumption,

suffices

United States
_____________

163 (1st Cir.

indictment

here,

to

v. Dillon,
______

the quantity

stated that

of drugs

"[t]he conspiracy

938

1986) (per curiam).

which

charged

involved: a
charged

the

United States
_____________

individuals with conspiracy to distribute marijuana,

forth

of

establish

defendant committed

(1st Cir. 1991) (per curiam);

Vargas, 804 F.2d 157,

______

The

that a

the

seventeen
did set

closing paragraph

above involved

more

-33

than 1000
dispute
weight

kilograms of marijuana
whether

as

this paragraph

is

accorded

the

indictment for purposes of

on a separate

sheet of

applicability."

...."
is

Yet

it is

deserving

charging

3142(e).

open to

of the

paragraphs

heading "notice

And a description

of

of drug quantity

is

of the indictment inasmuch

as

it is not an element of the offense under 21 U.S.C.

841(a)

See, e.g., United States v. Royal, 972 F.2d 643, 649___ ____ _____________
_____

50 & n.11 (5th Cir. 1992);

551

n.6

(1st

indictment would
with

an

The paragraph appeared

paper under the

not necessary to the validity

545,

in

Its purpose was to apprise the defendants of

possible penalties.

& 846.

same

independent

United States v. Barnes, 890 F.2d

_____________
______

Cir. 1989).

Accordingly,

likely trigger the presumption

proof

that

the

amount

attributable to defendant (personally or

kilograms

or more, it is

while

the

if combined
of

marijuana

vicariously) was 50

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.
issue

At the same time, we are reluctant to treat the

as waived.

raised

Although it

by defendant, the issue

appeal:

i.e., whether

required

in

sentence.

order

not been

is akin to

proof of
to

has

that advanced on

the quantity

establish

the

specifically

of drugs

likely

was

Guidelines

Under these circumstances, we would be inclined to

-44

call for further

briefing or remand

the matter for

further

consideration if the validity

of the detention order turned,

as the

the propriety of

defendant assumes, on

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

the magistrate judge.1

The

includes the following.

Among defendant's

involvements are

evidence as to

two convictions

reached by

risk of

flight

numerous criminal

in Florida for

failure to

appear

(for

which

defendant

confinement

in

default

Massachusetts.

in

violating

the

outstanding
violation.

Florida and
no

the time

defendant

California.

real

estate,

Massachusetts; his only

and
He

of

Although a

Massachusetts,

owns

each instance)

terms

at

received
at

of his
native
has
He
and

once
and

arrest
and

spent

sentence

least one

was

probation,

criminal

convicted

for

warrant

was

a
for a

second such

long-time resident

of

considerable

in

is unmarried, has
has

of

limited

time

no children,

family

ties

in-state relative is a brother.

to
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.
-55

has

worked

address,

at his

current job,

for only three

years.

and
The

lived at

his current

magistrate judge found

that he had been

pre-trial

less than fully candid when

services.

And

he

is

narcotics violation, carrying a

charged

interviewed by
with

a serious

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.

justified

in

finding

enumerated above;
has

failed

to

particularly

Yet we

think

these

factors

the various
appear

in

criminal
In

magistrate judge's decision,

to post

property in New Hampshire.

fails

to

swing

the

outweighed

instances in

noteworthy.

the district judge

the magistrate

judge was
by

those

which defendant

cases

addition,

strike

us

as

following

the

defendant's mother proposed

as security a

$35,000 piece

Yet this proposal, in

balance

in

to

defendant's

of

our view,

favor.

In

particular, even without resort to the statutory presumption,

it

is reasonable

quantity

from the

of drugs charged that

organization
security.

to infer

that

might readily

number of

persons and

defendant is part
absorb

the

loss of

See, e.g., Dillon, 938 F.2d at 1416-17.

___ ____ ______

conducted an independent review

-66

of a drug
such

Having

tempered by deference to the

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
conditions

of

appearance.
789,

by a preponderance
release would

of the evidence

reasonably

that no

assure defendant's

See, e.g., United States v. Patriarca, 948 F.2d

___ ____ ______________
_________

793 (1991)

(risk

of flight

need

only be

proven

by

preponderance of evidence); Dillon, 938 F.2d at 1416 (same).

______
Affirmed.
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-77