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UNITED STATES v. MILLINGS

January 21, 1976

UNITED STATES OF AMERICA
v.
ANDRE M. MILLINGS



The opinion of the court was delivered by: GASCH

 GASCH, District Judge

 Defendant was convicted by jury verdict of three separate sales of Controlled Substances in violation of 21 U.S.C. § 841(a). Sentenced under the provisions of the Youth Corrections Act, 18 U.S.C. § 5010(b), he has moved this Court for bail pending appeal.

 I.

 The controlling statute is 18 U.S.C. § 3148, which provides for release unless (1) the Court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee; (2) or pose a danger to other persons in the community or (3) it appears that an appeal is frivolous or taken for delay. It is the second of these three reasons that motivates the Court to deny the motion.

 While on probation for the Uniform Narcotic Act violation and carrying a dangerous weapon, the defendant gave four urine samples to the Probation Officer, two of which showed positive findings of morphine and Preludin. A recent urinalysis sample following his arrest in the instant case yielded positive results suggestive of heroin use. The defendant insisted that finding showed only an isolated reversion to drug use and requested a follow-up urinalysis. He did not appear as scheduled. Though able-bodied, defendant has obtained no employment and has lived on unemployment compensation and his wife's salary.

 Under these circumstances, it appears to the Court that defendant does constitute a danger to the community because of his relationship to illicit drug trafficking. The Court believes that it would be in his best interest, as well as those of the community, for him to remain at the Youth Center where he could improve his education and job skills and get some counselling as a result of which his opportunity to lead a drug free life would be improved.

 The United States Court of Appeals in Hansford v. United States, 122 U.S.App.D.C. 320, 353 F.2d 858 (1965), recognized that a seller of narcotics is clearly a danger to the community.

 
In light of past performance it is not reasonable for society's -- and Appellant's -- protection, that we assume Appellant, if released on bail, will overnight cease to be an addict or that he will confine himself to legitimate activities to finance his addiction. If narcotics traffic is a social and health hazard, then every narcotics dealer is a danger to society; the fact that the cause of his peddling of narcotics is related in part to his addiction is irrelevant. We cannot share the view that there should be one rule of law for important suppliers and another for the less successful ones such as Appellant seems to be.

 122 U.S.App.D.C. at 322; 353 F.2d at 860.

 II.

 The principal issue before the Court on trial was the admissibility of a prior conviction for violation of the Uniform Narcotic Act, a misdemeanor. The basis for the admission of this evidence was that under Rule 609(a)(2) of the Federal Rules of Evidence the following crimes may be utilized for the purpose of impeaching credibility: "those involving dishonesty or false statement without regard to the grade of the offense." What Congress did in this instance was to adopt the rule previously legislated for the District of Columbia. Reference to the Congressional Record, S. 19908, November 22, 1974, as reported in C.C.H. Federal Rules of Evidence para. 2609, p. 84, reveals the following:

 
Mr. McCLELLAN . . . Mr. President, I would first like to point out that the amendment I am now proposing simply applies to all Federal courts the law that exists in the District of Columbia today as a result of an act of Congress. Only 4 years ago, we had the same issue in the Senate and resolved it by adopting the same language that I ...

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