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UNITED STATES v. GONZALEZ

December 21, 1987

United States of America,
v.
Luis Gonzalez, Francisco Hernandez and Juan Herran, Defendants



The opinion of the court was delivered by: BROTMAN

 I. INTRODUCTION

 Presently before the court is an application by the Government that defendants Francisco Hernandez and Juan Herran be detained pending trial, pursuant to the Bail Reform Act of 1984. Specifically, the government asserts that a rebuttable presumption has arisen that "no condition or combination of conditions will reasonably assure the appearance of the [defendants] as required and the safety of the community," 18 U.S.C. § 3142(e), and that defendants have failed to introduce evidence sufficient to rebut this statutory presumption. The court agrees with the government that the aforementioned presumption has arisen in this case. The court also finds that this presumption has not been rebutted by defendant Hernandez, and therefore the pretrial detention of that defendant is ordered, consistent with the provisions set out in 18 U.S.C. § 3142(i). However, the court finds that defendant Herran has sufficiently rebutted the § 3142(e) presumption, and orders his release, subject to the conditions outlined in the following opinion and order.

 II. FACTS and PROCEDURE

 Defendants have been charged with: (1) conspiracy to distribute and to possess with intent to distribute quantities of narcotic drug controlled substances, in violation of 21 U.S.C. § 846; (2) knowingly and intentionally possessing with intent to distribute approximately 25 pounds of cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) knowingly and intentionally possessing with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). The factual allegations underlying the indictment are as follows.

 On October 1, 1987, a car driven by Luis Gonzalez, a co-defendant named in the indictment against Hernandez and Herran, was stopped on the New Jersey Turnpike by New Jersey State Police. Upon searching the car, the officers discovered approximately 27 pounds of cocaine and heroin.

 Mr. Gonzalez agreed to cooperate with the government authorities, and told the law enforcement officials that he had been intending to deliver the cocaine to "Francisco" and "Juan." These names were determined later to refer to defendants Hernandez and Herran, respectively. Mr. Gonzalez also consented to making a controlled delivery of the cocaine, under the supervision of agents from the Drug Enforcement Agency ("DEA").

 This controlled delivery occurred at 2565 125th Street, College Point, Queens, New York, where defendants Hernandez and Herran allegedly had a coded discussion with Mr. Gonzalez regarding the narcotics. All three defendants then left College Point.

 Thereafter, DEA agents observed Mr. Hernandez return to College Point, get in the car containing the cocaine, and drive to 10-21 166th Street, Whitestone, Queens. The agents then followed Mr. Hernandez into an apartment at that location, arrested him, and obtained his consent to search the apartment. This search uncovered a kilogram of cocaine, two fully loaded automatic weapons, and drug paraphernalia. DEA agents later arrested Mr. Herran near his residence, and, upon searching him, discovered approximately $ 8,000.00 in cash.

 III. DISCUSSION

 Under the Bail Reform Act, pretrial preventive detention is permissible only where a judicial officer determines, after a hearing, that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142. See United States v. Suppa, 799 F.2d 115, 117 (3d Cir. 1986). ln making this determination, the court is guided by a statutory presumption that arises under the Bail Reform Act when the defendant to be detained is charged with certain offenses:

 18 U.S.C. § 3142(e).

 This Section 3142(e) presumption is applicable to the present case. Both defendants Hernandez and Herran have been indicted for violations of 21 U.S.C. § 841(a)(1), crimes which have maximum sentences of ten years or more. Furthermore, probable cause to believe that the defendants committed these offenses exists by virtue of the fact that a grand jury has returned an indictment against defendants Hernandez and Herran, charging them with violations of § 841(a)(1). See Suppa, 799 F.2d 115, 119 (3d Cir. 1986) (holding that "the indictment is sufficient to support a finding of probable cause triggering the rebuttable presumption . . . ...


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