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UNITED STATES v. HASSAN ABDUL KADER MAKTABI

January 21, 1985

UNITED STATES OF AMERICA
v.
HASSAN ABDUL KADER MAKTABI, a/k/a "Abu Abdo", a/k/a "Abu Abdu," RABIHA KABAKIBO and HASSAN SAID MAKTABI, Defendants.



The opinion of the court was delivered by: HAIGHT

HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

The three captioned defendants move pursuant to the Bail Reform Act of 1984 for revocation or amendment of a magistrate's detention order. 18 U.S.C. § 3145(b). The three movants are two men, Hassan Abdul Kader Maktabi and Hassan Said Maktabi; and a woman, Rabiha Kabakibo. They are presently detained pursuant to an order promulgated by Magistrate Bernikow pursuant to 18 U.S.C. § 3142(e). Their motions come before me as Part I Judge.

 I.

 The procedural history of the case is not entirely clear. On December 18, 1984, defendants were arrested by Drug Enforcement Administration agents without warrant. They were first brought before Magistrate Dolinger. Magistrate Dolinger was confronted by a complaint sworn out by DEA special agent Richard Musso on December 19, 1984 (the "Musso complaint"). That complaint attached and incorporated by reference a much longer complaint that was sworn out by DEA special agent John Ozaluk on December 15, 1984 (the "Ozaluk complaint"). The Ozaluk complaint listed eighteen defendants, the first one being one Sami Annabi. It is the government's contention, expressed in the Musso and Ozaluk complaints, that the present defendants were participants in a significant heroin distribution conspiracy also involving Annabi and the other individuals listed in the Ozaluk complaint.

 The motion was argued before me on December 27, 1984. At that time these defendants had not been indicted. However, on December 28 a grand jury of this district handed up an indictment charging these defendants, Annabi, and others, with, inter alia, narcotics conspiracy and substantive offenses.

 On the argument before me, counsel for the parties differed as to what occurred or did not occur during defendants' initial appearance before Magistrate Dolinger. It is common ground that the government sought a detention order, while counsel for the defendants sought to avoid detention; and that at the end of the hearing before Magistrate Dolinger, the defendants were in fact detained. Defendants' counsel now argue that Magistrate Dolinger did nothing more than bind the defendants over for a detention hearing to be held at a later date pursuant to section 3142(f). Specifically, defendants' counsel contend that Magistrate Dolinger made no finding as to whether or not there was "probable cause to believe" that the defendants had committed one of the offenses specified in section 3142(e), whose pertinent provisions appear in the margin. *fn1"

 The government takes a different view of what occurred before Magistrate Dolinger. The government argues that, in effect, defendants moved to dismiss the complaint against them during the initial proceedings before Magistrate Dolinger; and that, in the ordinary course of magistrate's practice, the proceedings before Magistrate Dolinger should be regarded, at least implicitly, as including a determination by him or probable cause sufficient to bind the defendants over for further proceedings.

 Several days later the case came on before Magistrate Bernikow. The parties agree that the proceedings before Magistrate Bernikow constituted a "detention hearing" within the contemplation of section 3142(f). But counsel profess to differ in their anticipations of what would occur at the hearing. Defendants, consistent with their perception that Magistrate Dolinger had made no finding or probable cause, argue that they expected the government to offer proof to Magistrate Bernikow in an effort to persuade him that such probable cause existed so as to trigger the rebuttable presumption contained in subsection (e). The government, true to its perception that Magistrate Dolinger had already made a finding of probable cause, professes the expectation that before Magistrate Bernikow, the defendants would undertake to rebut the subsection (e) presumption. In the event, no one offered proof to Magistrate Bernikow, except for the Musso and Ozaluk complaints, which the government brandished before Magistrate Bernikow as it had done before Magistrate Dolinger. The Musso complaint had now been supplemented by a one-page rider which Agent Musso swore to on December 20.

 Counsel argued the case for and against continued detention before Magistrate Bernikow. It appears from the transcript of Magistrate Bernikow's ruling that, in his mind at least, his brother Magistrate Dolinger had previously made a probable cause determination. Magistrate Bernikow said:

 
Gentlemen, the bottom line is simply this: I agree the evidence against these defendants is extremely weak, but a determination has been made by a magistrate last week that there was sufficient cause to hold them certainly for a detention hearing. Therefore, I can't look behind that.
 
What I would have done if the same application was made to me I can't tell you at this time. I do agree the case is extremely weak against these defendants. Nonetheless it seems to me that I also - and if there is any basis that these defendants have any ties to this community I think I would be hard pressed to find that they should be detained. But from what I have been able to discern from your comments, these people came here from Syria within the last month, have no roots here, and they would be an extremely poor risk. (Tr. at 1)

 Magistrate Bernikow went on to continue the defendants in detention on the ground that "their total lack of roots in this community" made them an unacceptable bail risk. Ibid.

 I construe Magistrate Bernikow's holding to be that, since Magistrate Dolinger had made a finding of probable cause of these defendants' participation in a drug conspiracy, they bore the subsection (e) burden of rebutting the presumption that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community . . ." Because defendants could demonstrate no roots in the community, they failed to rebut the first of the two adverse statutory presumptions, so that the detention order was required to be continued.

 Again consistent with their perception that Magistrate Dolinger had made no probable cause determination, defendants argued before me that Magistrate Bernikow should not have felt himself inhibited by the proceedings before Magistrate Dolinger, but rather should have made his own independent evaluation, a concept appealing to the defendants because of Magistrate Bernikow's expressed view (which the government made clear that it does not accept) that the case was "extremely weak" against these defendants. Defendants contend that the proceedings before Magistrate Bernikow resulting in their continued detention are fatally flawed because Magistrate Bernikow did not make that independent evaulation [evaluation]. In any event, defendants argue, the complaints in the case do not establish probable cause.

 As noted, the government contends that Magistrate Dolinger made a finding of probable cause; that Magistrate Bernikow properly deferred to it in what should be regarded as a "divided detention hearing"; and that probable cause as to these defendants arises from the Musso and Ozaluk complaints.

 At the end of oral argument, it seemed to me to useful to attempt to obtain a record of the initial proceedings before Magistrate Dolinger. But those proceedings were not transcribed by a court stenographer. The record consists of tapes embracing all proceedings before Magistrate Dolinger that day. I have been given the tapes but they are not intelligible on any equipment immediately available only in the Magistrate's Court may be of ...


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