United States v. Carbone, Adolph "Butch" , 793 F.2d 559 ( 1986 )

OPINION OF THE COURT

PER CURIAM.

The major question presented in this appeal by the government from the district court’s order allowing defendant Adolph “Butch” Carbone released on a one million dollar bond pending trial requires us to decide whether defendant met his burden of rebutting the presumption that he would pose a threat to the community. Carbone’s trial in the New Jersey District Court is scheduled for June 10, 1986, precisely one week after the oral argument of this appeal.¹

On review of the district court’s disposition of a release or detention order, the appellate court is required to “give the reasons articulated by trial judges respectful consideration____” United States v. Delker, 757 F.2d 1390, 1400 (3d Cir.1985). The court of appeals should amend or reverse the district court’s decision “if, after careful assessment of the trial judge’s reasoning, together with such papers, affidavits, and portions of the record as the parties presents, [it] independently reaches a conclusion different from that of the trial judge — ” Id.

The Bail Reform Act of 1984 authorizes judicial officers to grant persons charged with federal offenses release on bail unless it is determined that “such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. § 3142(b). Carbone was charged with “an offense for which a maximum term of imprisonment of ten years or more is prescribed in [various narcotics acts].” § 3142(f)(1)(C). Thus, he fell within the provision that “a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the safety of any other person and the community.” § 3142(e). In effect, these sections create a rebuttable presumption against Carbone’s release and imposed the burden of producing countervailing evidence upon him. United States v. Jessup, 757 F.2d 378 (1st Cir.1985). The defendant must produce some credible evidence forming a basis for his contention that he will appear and will not pose a threat to the community. Id. The major issue before us is whether the defendant produced the necessary quantum of evidence at the hearings. Although the specific determinations of the magistrate and the district court are not as clearly stated as we would wish, we hold that Carbone met his burden.

Section 3142(g) provides:

(g) Factors to be considered.—

The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—

(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 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.

See also United States v. Perry, 788 F.2d 100, 106 (3d Cir.1986).

We are satisfied that Carbone met his burden of producing evidence under § 3142(g) relating to character, family ties, employment, and length of residence in the community to rebut the presumption that he poses a danger to the community. We are especially impressed that friends residing in Carbone’s community posted one million dollars in property as surety. Although posting a property bond normally goes to the question of defendant’s appearance at trial, where the surety takes the form of residential property posted by community members the act of placing this surety is a strong indication that the private sureties are also vouching for defendant’s character. Although character evidence is normally presented by oral testimony, proffered evidence of this activity— community members who know the defendant mortgage their homes to secure his release — is at least equivalent to oral character evidence.

It was also represented at the hearing before the district court that Carbone is a first offender, that he had an offer of steady employment pending trial, and that he would be confined to his parents’ home from 8:00 p.m. to 6:00 a.m. as a condition for release. The record indicates that Car-bone is fulfilling his obligations of daytime employment and nighttime house confinement. In sum, our independent evaluation has not compelled us to reach a conclusion different from that of the district court.

The judgment of the district court will be affirmed.

1 . We are at a loss to understand why the government chose to rest solely on an appeal with the delays attendant in full briefing when it could have timely applied for relief in a motion for a stay of the district court’s order granting bail.