The detention of Bruce Zaccaria without bail has been exposed as inappropriate by a local defense attorney in the latest court filings from the major Texas steroid bust codenamed Operation Pharmacia Juicy Fruit. Attorney R. Trent Gaither, representing Bruce Zaccaria, has outlined seven factors that legally limit and confine government detention authority.
Gaither argues that the Government has violated the Bail Reform Act and abused its power by acting outside these constraints. Federal prosecutors have failed to identify a single applicable factor to justify the detention of Bruce Zaccaria.
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with a crime of violence (not applicable in Zaccaria case)
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an offense which carries a maximum sentence of life imprisonment or death (not applicable in Zaccaria case)
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a drug offense carrying a maximum term of ten years or more (not applicable in Zaccaria case)
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any felony committed after the person has been convicted of two or more of the above offenses (state or federal) (not applicable in Zaccaria case)
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with any felony involving a minor victim, a firearm, or other dangerous weapon (not applicable in Zaccaria case)
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poses a serious risk of flight (rejected by Magistrate Judge Calvin Botley)
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there is a serious risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to do so to a prospective witness or juror (not applicable in Zaccaria case)
The government can detain a defendant while awaiting trial based on flight risk; and/or danger to the community circumscribed by the aforementioned criteria. The magistrate judge did not consider Bruce Zaccaria a serious flight risk; however, he concluded that Zaccaria represented a “danger to the community”.
Bruce Zaccaria’s “danger to the community” was based upon the alleged distribution of 250 vials of anabolic steroids to bodybuilders at 24 Hour Fitness. The tenuous claim of “dangerousness” was bolstered with two incidents of driving while intoxicated (DWI) in 2008.
The argument for Bruce Zaccaria’s release on bond can be read in the following excerpt from court documents filed by R. Trent Gaither (“Zaccaria’s Reply to Government’s Opposition to Rescind Detention Order”, July 13).
In United States v. Byrd,1 the Fifth Circuit held that detention can be ordered only in a case that involves one of the six circumstances listed in 3142(f). Those six circumstances, plus one that has been added since Byrd was decided 2, are set out in Zaccaria’s original appeal.3 (Docket Number 191.) Of those listed factors, the only ground upon which the government could even ask for a legitimate detention hearing, risk of flight, was rejected by the magistrate. The Government’s response not only fails to identify which of the Byrd factors it claims is applicable, it pretty much tries to avoid the issue completely.
Rather than identify a specific basis, the response clings to some wayfaring notion of a general entitlement to hold someone as a danger to the community, even though there is clearly no such right. As succinctly stated by Judge Smith in relation to the government’s right to detain based on future dangerousness:
[T]he Government’s authority to move for detention based on danger to the community is not unlimited. The Bail Reform Act confines that authority to a limited range of cases involving certain predicate offenses, such as crimes of violence, certain drug offenses, life imprisonment or death penalty cases, and the like. See 18 U.S.C. § 3142(f)(1)(A)-(E)(citing Byrd) Bell is charged by indictment with . . . offenses that are plainly not predicate offenses under §3142(f) (1)(A)-(E). So the Government lacks statutory authority to move for detention based on danger to the community in this case.
Even as it strains the bounds of law and fact to support a finding of dangerousness, the government conveniently omits the uncontraverted fact that Zaccaria has not been involved in steroids or illegal drugs of any kind since September of 2007, and no efforts were made to arrest him on the drug charges until June of 2009. In other words, in the government’s through the looking glass mentality, Mr. Zaccaria was not dangerous enough to get off the streets back in August, 2007 when he was messing with steroids, but now that he’s not messing with steroids, he has suddenly become dangerous enough to keep behind bars, apparently at any cost. [Emphasis added]
As the only real support for it’s tenuous claim, the government relies primarily on defendant’s DWI convictions in 2008. However, faced with evidence presented by the Defendant which clearly negated any issue of danger stemming from that occurrence, the government seeks refuge on evidentiary grounds, citing proffered testimony versus live witnesses. Naturally, it simply overlooks the fact that each of the witnesses were present in the courtroom and were available for cross examination had the government chosen.
As to the DWI charges, the government can not truthfully claim that Zaccaria presented no evidence that his conduct and behavior since September 2008 is contrary to a finding of dangerousness, because that contention is clearly at odds with the record. Nor does the government contend that the evidence presented by proffer was not accurate. Rather, it apparently wages a veiled attack on the attack on the procedural rules of a detention hearing as established by the legislature. Such an argument is not only inappropriate in this forum but is almost comical, given that the lax application of evidentiary and admissibility rules is generally the government’s most potent weapon at detention hearings. [Emphasis added]
Because the Government has failed to identify even one factor of the detention standard that it has shown by clear and convincing evidence, Zaccaria should be granted a bond.
U.S. Attorney Tim Johnson’s argument (representing the United States) that Bruce Zaccaria is a “danger to the community” and detention without bond is justified is excerpted below (“United States of America vs. Bruce Zaccaria: Government’s Response to Defendant’s Motion to Reconsider, Rescind Order of Detention,” July 10).
The United States maintains the U.S. Magistrate Judge’s order of detention is appropriate in the defendant’s case. The evidence heard by U.S. Magistrate Judge Calvin Botley convinced him that the defendant is a danger to the community based on his large scale distribution of controlled substances. The testifying agent estimated that the defendant bought and resold to his customers at least 250 bottles of various types of anabolic steroids. Judge Botley also heard evidence about the criminal history of Mr. Zaccaria, which included two prior deferred adjudication probations (possession of marijuana and aggravated assault, 1997 and 1999, respectively) and, more recently (May and August, 2008 arrests), and two back to back driving while intoxicated convictions (Detention Hearing Transcript, pages 58-line 17 to 62-line 8).
The defendant suggests that the United States had no grounds to move for detention. Relative to flight risk, there was evidence presented that the defendant owned no property (Detention Hearing Transcript, page 58-line 14 to 16) and therefore had few ties to the community then known to the government. The United States’ witness presented evidence to the Court about the length and type of defendant’s criminal history- since 1997, possession of marijuana, aggravated assault on a public servant, and driving while intoxicated (Detention Hearing Transcript, page 58-line19 to 25, pages 59-61). Three of the four offenses have been probated yet the defendant still continued to get in trouble thereafter. The fact that he was arrested twice in 2008, within a three month span, for driving while intoxicated (DWI) (Detention Hearing Transcript, pages 59-61-line 22) can lead one to the conclusion that he is a danger to the community. Driving while intoxicated can be, and frequently is, an offense that results in bodily injury and/or death for innocent victims who happen to be on the roadway at the time of the intoxicated driver. Two such arrests, so close in time to each other, demonstrate the defendant’s poor judgment.
United States District Judge Lynn Hughes will issue a ruling shortly. Judge Hughes released Zaccaria’s co-defendant Lee Thompson on a $50,000 unsecured bond and permitted him to travel to the Caribbean even though prosecutor’s allege that Lee Thompson was in possession of large quantities of anabolic steroids as recently as May 2009.
It seem probable that Judge Hughes does not consider anabolic steroids the same “danger to the community” as his colleague Magistrate Judge Calvin Botley or federal prosecutors. A ruling rescinding the detention order for Bruce Zaccaria would be quite an embarrassment for United States Attorney Tim Johnson and the U.S. Attorney’s Office in Houston.
About the author
Millard writes about anabolic steroids and performance enhancing drugs and their use and impact in sport and society. He discusses the medical and non-medical uses of anabolic-androgenic steroids while advocating a harm reduction approach to steroid education.
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