* Pursuant to Local Rule 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 96-20058

Summary Calendar

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellants,

versus

RICKY KAY and 

KIMBERLY KAY,

Defendants-Appellees.

________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

(95-CR-303-7)

________________________________________________

March 15, 1996

Before GARWOOD, SMITH and EMILIO M. GARZA, Circuit Judges.*

GARWOOD, Circuit Judge:

The United States appeals the district court’s order granting

defendants Ricky Kay and Kimberly Kay’s motion for revocation of

pretrial detention.

Facts and Proceedings Below

Ricky Kay and Kimberly Kay (the “Kays”) were indicted on

December 4, 1995, along with ten other co-defendants, on multiple
1 Ricky Kay (“Ricky”) was indicted for one count of conspiracy

to possess with intent to distribute and distributing more than

five kilograms of cocaine, four counts of aiding and abetting the

possession with intent to distribute 500 grams or more of a mixture

containing a detectable amount of cocaine, and two counts of aiding

and abetting the possession with intent to distribute five

kilograms or more of a mixture containing a detectable amount of

cocaine. Kimberly Kay (“Kimberly”) was indicted for one count of

conspiracy to possess with intent to distribute and distributing

more than five kilograms of cocaine, and one count of aiding and

abetting the possession with intent to distribute 500 grams or more

of a mixture containing a detectable amount of cocaine.

2 Drug Enforcement Administration Supervisory Special Agent

Michael A. Braun testified for the prosecution at the detention

hearing. He testified that the Kays supplied as much as fifteen

kilos of cocaine per month to Bernard Dale, the person described as

the manager of the drug conspiracy. Braun also testified that (1)

Ricky had been identified as the source of supply of cocaine in

another criminal investigation; (2) in addition to routinely

supplying cocaine to Dale, Ricky offered to transport drugs in

conjunction with his job as a truck driver; (3) on a previous

occasion, approximately $45,000 was seized from the trunk of a car

that Ricky was driving, and a narcotics dog alerted to the presence

of narcotics in the vicinity where the money was located in the

vehicle (Ricky waived all interest in the money); (4) Kimberly and

the Kays’ children were regularly present during the routine

transactions with Dale; and (5) on an occasion when Ricky was not

home, Kimberly conducted a transaction, taking one of her children

with her to obtain two or three kilos of cocaine from the Kays’

source of supply and receiving $45,000 for the transaction. 

In response, the Kays proffered the testimony of eight

witnesses present at the detention hearing. The witnesses’

2

charges of large-scale cocaine trafficking1 in violation of the

Controlled Substances Act, 21 U.S.C. § 801, et seq. On December

12, 1995, the magistrate judge conducted a detention hearing at

which the prosecutor presented evidence that the Kays should be

detained because they posed a flight risk and because they were a

danger to the community. Based on the government’s evidence, the

magistrate judge ordered the Kays detained because no conditions or

combination of conditions on release would assure the safety of the

community.2 
proffered testimony was that the witnesses had known the Kays all

of their lives and were shocked by the filing of the charges

against them, that the Kays were members of the community and were

not a danger to the community, that Ricky was employed and was the

sole support for his family, and that Kimberly was a housewife and

was needed at home. In addition, the Kays proffered that they were

not flight risks, that they owned no guns, that they did not deal

drugs out of their home, that their children needed them for

support and care, and that they could post the bond suggested by

the pretrial services’ recommendation.

3 In response to a suggestion by counsel for one of the Kays’

co-defendants that it might be proper for additional co-defendants

to be released on bail even though pretrial services did not

recommend release, the district court stated it would later “take

a look at the detention transcripts or transcript.” The district

court then ordered the Kays released. The prosecutor immediately

3

The Kays filed motions for revocation and/or amendment of the

detention order with the district court pursuant to 18 U.S.C. §

3145(b). They argued in their motions that they presented evidence

at the detention hearing to rebut the presumption that they were

dangers to the community. At a hearing before the district court,

counsel for Ricky informed the court that pretrial services had

recommended the Kays be released on $50,000 bond. Counsel also

stated that Ricky needed to assist in his own defense by obtaining

names and phone numbers to which he did not have access in jail and

that Kimberly had “two children that need[ed] to be taken care of.”

No additional evidence was taken in the district court. After

determining that pretrial services had not recommended that any

other co-defendants be released on bond, the district court stated

“I am going to order that [the Kays] be released on the bonds that

have been recommended by pretrial services.” It does not appear

that the district court reviewed the detention hearing transcript

prior to ordering that the Kays be released.3
requested that the court read the detention hearing transcript and

reconsider its order. The district court responded to the

prosecutor’s request only by ordering that the Kays be released on

terms and conditions to be set by the magistrate judge. 

4

Later the same day, the prosecutor filed a motion with the

district court for stay of its order granting the Kays’ release.

The district court’s order of the same date denying the stay noted

that the Kays were not flight risks; no mention was made of their

possible danger to the community. We granted the government’s

motion to stay the district court’s order pending resolution of

this appeal. On appeal, the government argues that the district

court’s order is not supported by the proceedings below because the

court failed to conduct a proper balancing of factors, the court’s

finding that the Kays were not a flight risk did not address the

independent basis for detention urged by the government and found

by the magistrate judge, and the Kays failed to rebut the statutory

presumption that they were a danger to the community. The Kays

respond solely that the district court was “merely presuming [they

are] innocent at this time, as custom dictates.” 

Discussion

“When the district court acts on a motion to revoke or amend

a magistrate’s pretrial detention order, the district court acts de

novo and must make an independent determination of the proper

pretrial detention or conditions of release.” United States v.

Rueben, 974 F.2d 580, 585 (5th Cir. 1992), cert. denied, 113 S.Ct.

1336 (1993). We review the district court’s order revoking or

amending the magistrate judge’s pretrial detention under a
4 See 21 U.S.C. § 841(b) (providing for sentence of ten years

to life imprisonment for each drug offense for which Ricky and

Kimberly are charged); id. § 846 (one who conspires to commit a

drug offense is subject to the same penalties as those prescribed

for the offense); 18 U.S.C. § 2 (one who aids or abets a crime is

5

deferential standard equivalent to abuse-of discretion: absent an

error of law, we will uphold a district court’s order “if it is

supported by the proceedings below.” Id. at 586 (quoting United

States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989)).

There are two sufficient and independent grounds for pretrial

detention under the Bail Reform Act: to assure the appearance of

the defendant, or to insure the safety of the community or another

person. See 18 U.S.C. § 3142(b). If there are no conditions of

release that can assure either the appearance of the defendant or

the community’s safety, then pretrial detention is mandated. 18

U.S.C. § 3142(e); see Rueben, 974 F.2d at 586-87. Because the

government appeals only on the basis of community safety, we limit

our analysis to that ground. 

The Bail Reform Act creates a rebuttable statutory presumption

that respecting one indicted for certain drug offenses——those for

which maximum terms of imprisonment of ten years or more are

prescribed by the Controlled Substances Act——no conditions of

release exist that would reasonably assure the community’s safety.

18 U.S.C. § 3142(e); Rueben, 974 F.2d at 586. The risk of

continued narcotics trafficking on bail constitutes a risk to the

community. Hare, 873 F.2d at 798.

Because the Kays were indicted for drug offenses that could

result in terms of imprisonment for ten years or more,4 they bore
guilty of the crime).

5 These factors include:

“(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 a

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.” 18 U.S.C. § 3142(g). 

6

the burden of producing evidence that their release would not pose

a danger to the community. See id.; Rueben, 974 F.2d at 586. The

production of evidence sufficient to rebut the presumption does not

completely negate all probative value of the facts underlying the

presumption; the court may still consider the congressional finding

that drug offenders pose a special risk of dangerousness to

society. Hare, 873 F.2d at 798-99. But the burden of persuasion

then rests with the government. Id. In determining whether the

government meets its burden, the district court must consider the

factors set forth in 18 U.S.C. section 3142(g).5 

After reviewing the evidence as a whole, we conclude that the

district court’s order to release the Kays on bond is not supported
6 The proffered conclusory statements to be made by life-long

acquaintances of the Kays (who were unaware of their drug

trafficking) that the Kays were no danger to the community are not

probative of the Kays’ dangerousness. Cf. e.g., Nordgren v.

Hafter, 789 F.2d 334, 339-40 n.4 (5th Cir. 1986) (conclusory

statements insufficient to establish genuine issue of material fact

and, thus, avoid summary judgment), cert. denied, 107 S.Ct. 177

(1986). It is doubtful that the Kays’ own proffered testimony that

they owned no guns could rebut the presumption of danger to the

community by continued drug trafficking. See Hare, 873 F.2d at 799

(approving the magistrate’s holding that the defendant would be a

danger to the community because he offered no evidence that he

would not continue trafficking drugs). It may be a closer question

whether the Kays’ own proffered testimony that they did not deal

drugs out of their home rebutted the presumption. We need not

reach the issue whether their general protestations of innocence,

without specific denials or explanations of the government’s

evidence, would be sufficient to rebut the presumption. Cf. BMG

Music v. Martinez, 74 F.3d 87, 91 (5th Cir. 1996) (holding that no

genuine issue of fact was raised to dispute the defendant’s intent

to defraud by his “conclusory, self-serving statement” giving a

non-fraudulent reason for his action). 

7

by the proceedings below. It is at best doubtful that the Kays

proffered evidence sufficient to rebut the presumption of their

danger to the community.6 See Reuben at 587. Even if they did

produce evidence sufficient to rebut the presumption, it appears

that the district court considered neither the statutory factors

nor the government’s evidence and the congressional determination

that continued drug dealing can pose a significant danger to the

community. The only factor that the district court mentioned when

it ordered that the Kays be released was that pretrial services had

recommended bond. In its order denying the government’s request

for a stay, the district court stated, “[t]he Court is of the

opinion that the evidence fails to support the finding that these

defendants are a flight risk. They in fact surrendered themselves

to the agents and are permanent residents of this District.” This
8

statement suggests not only that the district court failed to weigh

all of the section 3142(g) factors, but also that it did not

consider the Kays’ danger to the community at all. Consequently,

we hold that the district court’s order to release the Kays on bond

is not supported by the proceedings below. 

Conclusion

For the foregoing reasons, we VACATE the district court’s

order to release the Kays’ on bond and REMAND for consideration

under the appropriate standards whether any condition or

combination of conditions for release of the Kays will reasonably

assure the safety of the community as provided in section 3142(e).

VACATED and REMANDED