characteristics including but not limited to the defendant's criminal history, past conduct, and past appearance at court proceedings. See 18 U.S.C. § 3142(g).
FINDINGS AND DISCUSSION
The reasons set forth in Magistrate Judge Robinson's Findings Of Fact and Reasons are largely unchallenged and support continued detention of the Defendant. The Defendant is charged with conspiracy to distribute over five grams of cocaine base, distribution and possession with the intent to distribute in excess of five grams of cocaine base, distribution within 1000 feet of a school, and unlawful employment of a minor to possess with the intent to distribute over five grams of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B)(iii) and 860(a) and 861(a)(1). The Controlled Substances Act prescribes a maximum term of imprisonment of considerably more than ten years for these offenses.
The government has proffered and put on evidence to the effect that the defendant is a member of a six member drug conspiracy. The government alleges that the defendant's role in this conspiracy was that of the "enforcer." The charged conduct then, includes elements of both narcotics and violence. Thus, this Court finds that Magistrate Robinson's finding that the defendant was "actively involved" in the conspiracy was properly reflective of the seriousness of the allegations against the Defendant. Based on all the testimony and the grand jury's indictment of the defendant the Court believes that there is probable cause to believe that the defendant committed the offenses charged. Based on these facts, the Court finds that the government has met the burden imposed by the statute and shown that there is no condition or combination of conditions of release which would reasonably assure the safety of the community or the defendants' appearance at trial.
The Defendant's current Motion to Reconsider attempts to cast doubt on the Magistrate Judge's reliance on the charge of possession of a .357 magnum, which the Defendant currently faces in Superior Court. The Defendant put on evidence and argued to this Court that the Superior Court gun case is not a strong one and that this Court should therefore reconsider the detention order in this case. The evidence consisted of the testimony of a juvenile who said that he was with the defendant when he was apprehended on the weapons charge. The juvenile stated that the arrest occurred in a car driven by the defendant and while admittedly the weapon was found in the car, the juvenile stated that the weapon belonged to him and not the defendant. This was despite the juvenile's earlier denial that he possessed the weapon when he was questioned by police after the arrest. The juvenile was released as a result of that denial. Under these circumstances this Court does not believe that the juvenile's latest testimony warrants much credence.
Clearly, this new evidence is not sufficient to refute the Magistrate Judge's Finding that no conditions of release could reasonably assure the safety of the community and defendant's appearance at trial. That finding was based primarily on the dangers that narcotics present to the community and the fact that there is probable cause to believe the Defendant committed the narcotics offenses charges in this case.
In addition, since the time of the Magistrate Judge's Findings, the Defendant has been indicted for an even graver offense, Assault with Intent to Kill While Armed. The Defendant asks the Court not to consider that Superior Court indictment in deciding whether or not to detain the Defendant in this case. That argument is inconsistent with the defendant's own argument that this Court reconsider its prior decision to detain the Defendant based on new evidence indicating the weakness of another entirely separate case in Superior Court. The Bail Reform Act certainly does not mandate that a judicial officer wear jurisdictional blinders in considering the past conduct of a defendant. The fact that a Grand Jury has found probable cause to believe that the Defendant committed this violent crime can be considered by this Court's in balancing the statutory factors in its decision to retain the order of detention pending trial. Therefore, the Defendant's Motion to Reconsider will be
United States District Court
ORDER - August 19, 1992, Filed
Upon consideration of the entire record in the above-captioned matter, the Defendant's Motion to Reconsider Revocation of Detention, the Government's opposition thereto, and upon hearing before the Court it is this 18 day of August, 1992 hereby
ORDERED that the Defendant's Motion to Reconsider is DENIED.
United States District Court