lengthy prison sentence supply a motive to flee the jurisdiction.
No conditions of bail can guard against the risk of flight. Defendant has no assets. The Government has confiscated most of his accounts and boat. The family business is being sold. Defendant must look to his 79 year old mother for monetary or secured bail. There is nothing on the record, however, regarding her assets, her ability to post bail, or her ability to control her son so as to reasonably assure his appearance.
The Government has met the burden of proving by a preponderance of the evidence, as well as by clear and convincing evidence, that defendant presents a flight risk and that no conditions of release can reasonably assure defendant's appearance.
2. Availability of Conditions to Reasonably Assure the Safety of Other Persons.
Defendant's proffer with regard to whether the safety of other persons can be reasonably assured if he is not detained is that he does not carry a weapon and is not a threat to any individual. Furthermore, defendant argues that any threat to the informant Zehring can be alleviated by removing the informant from her home in the Lebanon area, providing her with protection, or restricting the geographic movements of defendant.
This court does not believe that the defendant's proffer was sufficient to rebut the statutory presumption that detention should be ordered. Even assuming that the defendant's proffer was sufficient, the Government has met its burden of proving, by clear and convincing evidence, that no conditions of release can reasonably assure the safety of other persons.
The Government offered evidence that defendant possesses the intent as well as the capacity to harm potential witnesses. The identity of the Government's principal witness, informant Zehring, is known to the defendant. Zehring is unindicted and living in the Lebanon area. Defendant has made statements to Zehring that he would pay to have anyone who crossed him in his drug dealings "taken care of". The Government also submitted a tape recording in which defendant stated that he and two other persons went armed with machine guns to look for drug traffickers in the Bahamas who had ripped him off. There is also some evidence that defendant has used physical force on co-defendant Enck, who is currently out on bail. Finally, defendant has prior convictions for assault, harassment by communication and terroristic threats. See 18 U.S.C. § 3142(g)(3)(A).
There is no question in this court's opinion that defendant has the capacity to cause serious harm to anyone who has interfered with his drug operations. As in United States v. Delker, 757 F.2d 1390, 1401 (3d Cir. 1985), this court does not believe that an order restricting the geographic movements of defendant to avoid contact with potential witnesses or requiring the Government to afford protection would reasonably protect the safety of those witnesses. Furthermore, "defendant's community ties do not overshadow the factors that clearly and convincingly establish that he poses a danger to persons in the community". Id.
3. Availability of Conditions to Reasonably Assure the Safety of the Community.
On the issue of danger to the community, defendant proffers that there is no showing that he has any access to drugs. Defendant further submits that restricting his geographic movement would prevent his access to drug suppliers.
This court does not believe that the defendant's proffer was sufficient to rebut the statutory presumption that defendant should be detained. Even if defendant's proffer were deemed sufficient to rebut the presumption, the Government has proven by clear and convincing evidence that no conditions of release will reasonably assure the safety of the community.
The evidence at the hearing shows that at least as early as 1980-81, defendant was involved in drug dealings. A review of the current indictment shows that defendant continued to traffic in drugs while on bail during the pendency of his state criminal proceedings, a factor which specifically mitigates in favor of detention under 18 U.S.C. § 3142(g)(3)(B). There is some indication that defendant may have a quantity of cocaine secreted in the Lebanon area that would be available to him. Continued drug trafficking is one of the precise dangers to the community for which Congress contemplated detention under 18 U.S.C. § 3142(e). United States v. Strong, 775 F.2d 504, 507 (3d Cir. 1985); United States v. Leon, 766 F.2d 77, 81 (2d Cir. 1985); S.Rep.No. 225, 98th Cong., 1st Sess. 12-13, reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3195-96.
For these reasons, the defendant's motion will be denied.
This motion is before the court on defendant's motion for revocation or amendment of a detention order. In accordance with 18 U.S.C. § 3142(i), IT IS HEREBY ORDERED THAT:
1. Defendant's motion for revocation or amendment of a detention order is denied. The written findings of fact and statement of the reasons for detention are set forth in the Memorandum which accompanies this Order.
2. Defendant shall continue in the custody of the Attorney General. In accordance with defendant's request, defendant shall continue to be confined in the Cumberland County Prison in order to facilitate access to his counsel and to afford defendant an opportunity to be in population rather than in solitary confinement. Therefore, the circumstances of confinement usually contemplated by 18 U.S.C. § 3142(i)(2) will not be ordered.
3. Defendant shall be afforded reasonable opportunity for private consultation with his counsel.
4. On order of a court of the United States or on request of an attorney for the United States Government, the person in charge of the corrections facility in which defendant is confined shall deliver defendant to a United States Marshal for the purpose of an appearance in connection with a court proceeding.