The opinion of the court was delivered by: LACEY
On April 17, 1981, the defendant Mariano C. Fedullo and four other individuals were arrested by FBI Agents in Newark, New Jersey, in possession of a stolen tractor trailer and its contents. On April 20, 1981, all five defendants made an initial appearance before United States Magistrate Serena Perretti at which time bail was set for all defendants. The amount of bail set for the defendant Mariano C. Fedullo, a resident of Uruguay who was illegally in the United States, was $ 5,000 cash or surety bond.
On April 28, 1981, a United States Grand Jury sitting in the District of New Jersey, returned a two-count indictment charging the defendant Fedullo and three of the individuals with whom he had been arrested with one count of conspiracy to possess goods stolen from an interstate shipment in violation of Title 18, United States Code, Section 371, and one count of possession of such goods in violation of Title 18, United States Code, Section 659. The fifth individual who had been arrested on April 17 was named in the indictment as an unindicted co-conspirator, and subsequently entered a guilty plea to a misdemeanor information.
On May 6, 1981, the defendant Fedullo and his co-defendants were arraigned before another judge of this court. The defendant Fedullo's bail was continued in the amount of $ 5,000 cash or surety bond.
Prior to that date, on May 1, 1981, an individual appeared at the Office of the United States District Court Clerk with $ 5,000 cash to secure the release on bail of Antonio Mega, a co-defendant of defendant Fedullo and, like him, a resident of Uruguay and illegally in the United States. At the request of the Government a hearing was held by the same judge relating to the tender of this cash bail. The result of this hearing was an order, dated May 19, 1981, rejecting the cash bail tendered on behalf of defendant Mega.
On May 20, 1981, that order was stayed by the United States Court of Appeals and the defendant Mega was released from custody. He thereafter failed to appear in connection with other proceedings in this case and a warrant was issued for his arrest. He is presently a fugitive.
On June 29, 1981, Fedullo entered a guilty plea to Count I of the Indictment pending against him and he was thereafter sentenced.
As I indicated at the time of the bail hearing I would do, I hereinafter set forth my findings of fact and conclusions of law in the matter.
1. On May 28, 1981, an individual named Manuel Garcia appeared at the Office of the Clerk of the United States District Court with $ 5,000 in cash in satisfaction of defendant Fedullo's bail. (Tr. 3)
2. In response to Garcia's appearance, the Government applied to this Court for a hearing pursuant to United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966). (Tr. 5)
3. The Government's application for a hearing was granted and Garcia was thereupon brought before the Court to give testimony in this matter. (Tr. 14)
4. Garcia stated that he first met Fedullo when they were co-workers at a plastics factory in New York City from 1969 to 1970. (Tr. 15)
5. Garcia stated that Fedullo lived in Garcia's mother's house for 5 or 6 years ending in 1975 or 1976. (Tr. 18, 37, 58) The house is located at 301 West 47th Street, New York. (Tr. 46)
6. Garcia stated that prior to May 25, 1981 he had not seen Fedullo since 1976. (Tr. 15-16)
7. Garcia learned that Fedullo was in jail at the Metropolitan Correctional Center, New York, New York from mutual friends in Elizabeth, New Jersey. (Tr. 16-17)
8. Garcia cannot recall the names of these people. He met them "on the street" in Elizabeth, ...