United States v. Hussain ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-1387
UNITED STATES,
Appellee,
v.
RANA NAZAR HUSSAIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
James L. Sultan, Catherine J. Hinton, and Rankin & Sultan
on Memorandum of Law in Support of Defendant’s Appeal from
Detention Order.
Donald K. Stern, United States Attorney, and Emily R.
Schulman, Assistant U.S. Attorney, on brief for appellee.
April 24, 2001
Per Curiam. Appellant Rana Nazar Hussain appeals
from a district court order that denied his motion to revoke
a pretrial detention order. Having thoroughly reviewed the
appellant's submissions to this court in light of our
independent standard of review, see United States v.
O'Brien, 895 F.2d 810, 814 (1st Cir. 1990), we affirm the
district court's decision to detain appellant based on the
risk of flight.
Appellant is a citizen of Pakistan who was arrested
at Logan Airport and subsequently indicted on charges of
conspiring to import heroin and aiding and abetting said
importation in violation of 21 U.S.C. §§ 963, 952 and 18
U.S.C. § 2. These offenses trigger the statutory
presumption that "no condition or combination of conditions
will reasonably assure the appearance of the ... [appellant]
at trial or the safety of any person or the community." 18
U.S.C. § 3142(e).1 This presumption is particularly heavy
in this case, because the government's evidence suggests
that appellant previously had acted as the "controller" of
1 As the government does not contend that appellant's
release would result in any danger, our review is limited to the
risk of flight issue.
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a successful heroin-smuggle.2 Moreover, both appellant and
his co-defendant made incriminating statements to the
authorities, thus the weight of the government's evidence
appears to be strong. On this record, we see no basis to
disturb the district court's finding that appellant faces an
"uphill battle" in his motion to suppress his own custodial
statements.3
2 Appellant's contention that the government violates his
right to due process by relying on informant information to show
his participation in a prior smuggle was not raised below.
Therefore, the objection is not properly before us. See, United
States v. Perez-Franco, 839 F.2d 867, 871 (1 st Cir. 1988)(per
curiam). Moreover, the objection flies in the face of the well-
established principle that courts may consider and credit
reliable hearsay evidence in making determinations under the
Bail Reform Act. See, e.g., United States v. Acevedo-Ramos,
755 F.2d 203, 208 (1 st Cir. 1985). It is equally well-
established that bail hearings are not intended to serve as
discovery expeditions. See, e.g., United States v. Smith, 79
F.3d 1208, 1210 (D.C. Cir. 1996); Acevedo-Ramos, id.; United
States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986). Accordingly,
we decline appellant's invitation to become embroiled in the
discovery dispute that is pending in the district court as a
result of appellant's motion for reconsideration of Magistrate
Judge Cohen's January 12, 2001, Memorandum and Order denying
appellant access to informant information.
3 We recognize the possibility that the government's case
might be weakened if appellant's motion to suppress succeeds in
excluding some or all of his custodial statements. This
possibility does not provide a sound reason to overturn the
district court's detention order. Should appellant succeed in
his motion to suppress or in his motion for reconsideration of
Magistrate Judge Cohen's January 12, 2001 discovery order, he
may renew his request for bail before the district court. See
United States v. Palmer-Contreras, 835 F.2d 15, 18 (1st Cir.
1987)(per curiam); 18 U.S.C. § 3142(f).
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To be sure, the presumption of flight is somewhat
weakened by the evidence that appellant has marshaled that
attests to his reputation as a prominent Pakistani film
distributor, his good standing in his family and religious
community, and his lack of a criminal record. The district
court supportably deemed this evidence outweighed by that
which showed that appellant and his co-defendant were caught
smuggling almost 28 pounds of heroin and that appellant has
no significant ties to the United States or Massachusetts.
Indeed, given the seriousness of the charges and the 10-year
mandatory minimum sentence that appellant would face if
convicted, the strength of appellant's commercial and family
ties to Pakistan would appear to reinforce his incentive to
flee. The Consul General's offer to serve as appellant's
custodian could not reasonably assure appellant's appearance
at trial since his additional occupation as a real estate
investor precludes him from being at home during the work
week and electronic monitoring is not always effective.
A final housekeeping remark is necessary. The
unsealed appendix of exhibits that appellant has filed in
this court includes two items that technically remain sealed
in the district court. Those items are the transcript of
the September 13, 2000 hearing before Magistrate Judge
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Cohen, and Magistrate Judge Cohen's Memorandum and Order of
that same date. In response to this court's order, defense
counsel has filed the attached "Appellant's Statement
Respecting Previously Sealed Exhibits", which indicates
that the need for sealing no longer exists. We direct the
district court to review the attached "Appellant's
Statement..." and to enter an order which indicates whether
or not Magistrate Judge Cohen's September 13, 2000
Memorandum and Order (docket entry #4) and the transcript of
defendant Hussain's September 13, 2000 initial appearance
(docket entry unassigned) shall remain sealed. The
appellant's appendix shall remain in this court's safe
pending receipt of the district court's order.
The district court's order requiring appellant
Hussain's pretrial detention is affirmed. See Local Rule
27(c).
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