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June 11, 1993

EDUARDO ANTONIO LOPEZ, et al., Defendants.

The opinion of the court was delivered by: ALFRED M. WOLIN


 Before the court is the motion of defendant Eduardo Antonio Lopez ("Lopez") for review and reversal of the magistrate judge's denial of his motion to vacate the detention order and set conditions of release. For the reasons expressed below, the Court will grant defendant's motion.


 Lopez was arrested on September 30, 1992 on charges relating to the trafficking of cocaine. On October 9, 1992, he appeared, along with two codefendants, before United States Magistrate Judge Hedges for a detention hearing. Judge Hedges detained Lopez on the ground of risk of flight, citing the absence of employment ties and the limited properties offered on his behalf. Lopez appealed, and Judge Wolin assigned the matter to United States Magistrate Judge Pisano.

 After a two-day hearing on November 24, 1992 and December 1, 1992, Judge Pisano refused to disturb the original detention order. He found that defendant had not rebutted the statutory presumption required for his release, citing the seriousness of the offense and the correspondingly severe penalties as suggestive of danger and flight. On May 6, 1993, Judge Hedges denied defendant's motion to revoke the detention order, concluding that defendant's close family ties did not overcome his role in the drug conspiracy. A review of this motion currently is pending before the court.


 A. Standard of Review

 A district judge's review of a magistrate's denial of bail is de novo. See United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir. 1985). While such courts may do more than examine the transcript of the hearing before the magistrate, id. at 1394, in most cases they find it useful to consider carefully the reasoning and decision of the magistrate. Id. at 1395. Thus, the Court must make an independent determination of Lopez's right to bail, fully explaining the result it reaches and its reasons. Id.

 B. The Bail Reform Act

 Courts must strive to impose the least restrictive bail conditions necessary to assure the appearance of defendant at trial and the safety of the public in the interim between arrest and trial. See United States v. Himler, 797 F.2d 156, 159 (3d Cir. 1986). Yet section 1342(e) of title 18 of the United States Code recognizes the necessity of detention in certain circumstances, providing:


If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds 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, such judicial officer shall order the detention of the person before trial.

 18 U.S.C. § 1342(e). Indeed, Congress isolated categories of crimes in which detention more frequently will be appropriate.


Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (12 U.S.C. 951 et seq.), the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.), or an offense under section 924(c) of title 18 of the United States Code.


 The government bears the burden of persuading the court that a defendant should be detained. Depending on the crime alleged and the corresponding proof, the government enjoys a presumption of nonappearance and dangerousness. Defendant may rebut this presumption by presenting "some credible evidence forming a absis for his contention that he will appear and will 'not pose a threat to the community." United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986). If the defendant meets this burden of production, the burden shifts back to the government to prove a risk of flight by a preponderance of the evidence, see Himler, 797 F.2d at 161, *fn1" and dangerousness by clear and convincing evidence. See 18 U.S.C. § 3142(f).

 Subsection (g) of section 3142 specifies the factors that control these determinations. It directs the Court to consider: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the person; (3) the nature and seriousness of the danger to any person or to the community that would be posed by the person's release; and (4) the history and characteristics of the person including his family ties, employment record, community ties, history of drug or alcohol abuse, criminal history, and whether at the time of the offense or arrest he was on probation or parole. Id. § 1342(g).

 Because a grand jury found probable cause to indict Lopez for an offense which carries a maximum term of imprisonment of ten years or more under the controlled Substances Act, the Court must presume that he is both unlikely to appear at trial and dangerous to the community. See United States v. Suppa, 799 F.2d 115, 119 (3d Cir. 1986). To counter these damaging conclusions, defendant offers residential property and a bond to secure bail, describes his close family and community ties and submits a strict home detention plan. The court will outline each in turn.

 Five families have offered four homes with a collective equity value of two hundred, forty-nine thousand five hundred dollars ($ 249,500) to help secure defendant's release. They include: (1) Peter and Virginia Guadagnino who own a two-family house in Jersey City, New Jersey with an equity value of one hundred twenty-seven thousand, five hundred dollars ($ 127,500); and (2) Richard and Maria Tuero and Eddy and Juana Tuero who own a two-family dwelling and retail building in Union City, New Jersey with an equity value of one hundred and three thousand dollars ($ 103,000); (3) Heriberto and Amarili Varela and Jose and Elsa Martinez who own a three-family house in Newark, New Jersey with an equity value of ten thousand dollars ($ 10,000); and (4) Eddy and Juana Tuero who own a two-family dwelling in Union City, New Jersey with an equity value of nine thousand dollars ($ 9,000). In addition, defendant will post a corporate security bond in the amount of two hundred thousand dollars ($ 200,000).

 With respect to family and community connections, the facts show that defendant is a long-time resident of this New Jersey district. He and his wife Irene have been married for seventeen years, and they have a thirteen-year old son, David. The Lopez family currently rents an apartment located at 1600 75th Street in North Bergen, New Jersey.

 Born in Cuba in 1956, the oldest of four children, defendant emigrated to the United States in 1967, living in Los Angeles until 1971, when his family moved to West New York, New Jersey. Since his marriage, defendant has resided in New Jersey with the exception of the years from 1984 to 1990 when he and his family lived in Tampa, Florida.

 Defendant's extended family also resides in New Jersey, with one sister in Edison, another in North Bergen, and his mother in West New York. *fn2" They describe him as the titular head of the family, who visits his ailing mother almost daily and provides guidance and support to his siblings. Defendant also is active in his son's school activities.

 Under the terms of the proposed home detention, defendant would remain at his residence under strict monitoring. He would be permitted to leave his home to visit the office of his attorney, in the case of medical emergencies and to work. *fn3" A tripartite monitoring system is envisioned, comprised of the National Center on Institutions and Alternatives ("NCIA"), a private nonprofit agency that serves criminal justice clients nationwide, a team of third-parties and Pre-Trial Services. The NCIA will shoulder the greatest burden, placing a minimum of six random calls in every twenty-four hour period to the Lopez residence to verify the defendant's presence. *fn4" NCIA will record these calls in a log, to be submitted periodically to Pre-Trial Services.

 The third-party monitoring team also will supervise defendant's detention. The suggested group includes: (1) A. William Pingpank, M.D., who has known the Lopez family for fourteen years and served as David's pediatrician since his birth; (2) Arthur M. Flaherty, a Metuchen police officer and brother-in-law of defendant; (3) Reverend Edward C. Puleo, the spiritual advisor of the Lopez family; (4) Francisco Munin, the owner and occupant of the two-family house in which the Lopez family rents their apartment; (5) Marcelo R. Viera, godfather to defendant's son; and (6) Jorge Garcia, manager of a business known as The Crib Outlet who has offered Lopez employment during his release pending trial.

 Additional conditions will ensure that defendant has limited access to the community. NCIA will supervise the installation of a New York Telephone Centrex III Account which would allow the Court to restrict the outgoing calls from and the incoming calls to the Lopez residence. Portable and cellular phones would be prohibited in the household as would direct or indirect communication between Lopez and anyone by letter or facsimile without prior notice to Pre-Trial Services and the Office of the United States Attorney. Only those visitors the Court approves will be permitted on the premises. Foreign travel is prohibited as well as the application for a passport or other documents that would permit such activity.

 The Court is satisfied that defendant has rebutted the statutory presumption of dangerousness and flight risk. Turning first to dangerousness, the rigorous conditions of the proposed home detention shields defendant from the community, thereby removing the opportunity for him to participate in criminal activity while he awaits trial. Other factors that indicate that defendant's release will not imperil the community are the absence of any prior criminal record and the defendant's comparatively limited role in the alleged conspiracy. *fn5"

 Defendant also is successful in countering the appearance element. His relatives use superlatives to describe the closeness of their extended, New Jersey-based family. Friends of the family have pledged their own homes, valued close to $ 450,000, as security for defendant's appearance. In addition, some twenty-seven friends and neighbors have written to the Court on behalf of Lopez.

 The government has offered little evidence to met its burden of proving by clear and convincing evidence that Lopez is dangerous. It relies on the gravity of the crime charged and its "exceedingly strong" evidence against Lopez. Although the seriousness of defendant's activities is compounded by the amount of the contraband seized, Congress did not rely on the quantity of drugs involved as a measure of the propriety of pre-trial detention. By focusing heavily on the number of kilos of contraband, the Court thereby would rewrite section 3142 to preclude all defendants charged with large-quantity distribution schemes from obtaining release.

 Nor can the Court discern facts that would support a finding of dangerousness. No violent incident marks the execution of the conspiracy or the government's attempted apprehension and arrest of defendant. Defendant carried no weapon. His comparatively limited involvement also weighs in his favor. Because the government fails to carry its burden the Court concludes that defendant is not dangerous.

 In contrast, with respect to the risk of flight prong, the government raises numerous arguments. First, attempting to discredit defendant's family-ties argument, the government argues that Lopez was estranged from his wife and child at the time of and prior to his arrest. To support this conclusion the government relies on a lease to an apartment at Riverview Circle, North Bergen, found in his possession and bearing his name. An invoice for drapes for the apartment, also in the name of Lopez, was seized during the search of the premises.

 These scant facts do not support a finding of estrangement. Cautious landlords often restrict their tenancies to reliable renters. Moreover, whether a matter of business or convenience it is not unusual in our modern, highly-mobile society for individuals to maintain dual residences. At best, the record supports an inference that Lopez and his codefendant used the apartment as a safe house.

 The government next focuses on defendant's behavior prior to arrest when, in its view, defendant fled from federal agents during an automobile chase. Because the agents used no sirens, overhead lights or loudspeakers to notify defendant that he was a target of pursuit, his alleged disregard of authority is unclear. Even though the government's confidential informant believes that defendant was aware of the surveillance, the Court thinks this sequence of events is better described as an attempt to escape detection rather than an attempt to flee which does not supply much force to the government's position.

 The government also urges the Court to discount the property produced by the friends of defendant, since they likely are members of or pawns recruited by the "organization" who have been promised indemnification against or perhaps compensation for any possible loss resulting from defendant's release. The government has produced no evidence in support of this theory, and the Court is unwilling to engage in such cynicism absent some cause. Nevertheless, in order to clear the cloud of doubt caused by this suggested deceit, the Court will conduct a hearing and under oath permit the government to question the property owners about their motives.

 More troublesome are the events surrounding Lopez's arrest. At the time he was taken into custody, defendant possessed a driver's license, social security card and an employer identification card in the name of Ruben Olmos. During an interview with pre-trial services defendant Lopez falsely identified himself to these government agents. Once counsel was present, however, defendant ceased any attempt to camouflage his true identity.

 The government argues that this behavior illustrates the tendency as well as the capacity to flee. Defendant uses these facts to demonstrate his naivety and his desire to protect his family from embarrassment and shame. Both arguments are exaggerated. While the use of false identification is suspect and reprehensible, even coupled with the government's other arguments, now largely discredited by the Court, this behavior is not determinative and cannot support the conclusion that defendant will avoid justice. Defendant has exhibited plural, rather than multiple, identities, *fn6" suggesting that he possesses no heightened deceptive abilities that would allow him to evade capture should he decide to flee. Indeed, the Ruben Olmos avenue of escape has been foreclosed.

 Thus, the Court concludes that the government has failed to met its burden of showing by a preponderance of the evidence that defendant will not appear at trial if released as required under section 3142. Due process concerns also drive this decision. The Third Circuit has recognized that at some point during pre-trial confinement due process may require release or, "at a minimum, a fresh proceeding at which more is required of the government than is mandated by section 3142." United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986). Almost eight months have passed since defendant's arrest in October 1992. The prolonged incarceration of Lopez necessarily is troublesome, especially where, as here, discovery has not been completed, and there is evidence that it will continue to proceed slowly. *fn7"

 Although the Court reaches a conclusion at odds with those of Magistrates Hedges and Pisano, this result does not evidence a disrespect for these judges or a disregard of their findings. Rather, the inapposite ruling reflects different records marked by radically changed circumstances. Most obvious is the timing element, but the Court also benefitted from additional security for bail, a more detailed plan for home detention and greater information about the government's case against defendant.

 For the reasons stated above, the Court will release defendant and order home detention but withhold permission to work. The government objects to this action and asks the Court either to retain defendant or to release him with few conditions, arguing that the home should not serve as a substitute for prison. This characterization is inapposite. While bail traditionally serves to secure appearance at trial, in the Bail Reform Act, Congress articulated a second concern, protecting the public from post-arrest violations of the law. Incarceration necessarily accomplishes both goals. In cases in which neither concern is present, home detention with work release is appropriate. In cases, such as this, where a defendant satisfies the court that flight is unlikely, strict home detention serves to shield the community from the danger posed by defendant's continued criminal activity.


 The Court will grant defendant's motion and vacate the detention order and set conditions of release. The Court will stay its decision pending a hearing at which the appraiser, the bondsman and the owners of the property posted to secure defendant's release shall appear and testify. A discussion of the specific conditions of release also will await this hearing.

 An appropriate order is attached.

 Dated: June 11th, 1993



 In accordance with the Court's opinion filed herewith,

 It is on this 11th day of June, 1993,

 ORDERED that defendant's motion is granted and the detention order and set conditions of release are vacated; and it is further

 ORDERED that the Court will stay its decision pending a hearing at which the appraiser, the bondsman and the owners of the property posted to secure defendant's release shall appear and testify. Following said hearing an order outlining the specific conditions of release ill issue.


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