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,
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.
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
ALFRED M. WOLIN, U.S.D.J.
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.
ALFRED M. WOLIN, U.S.D.J.