12. When defendant Spanjol was arrested at the Philadelphia Airport on December 1, 1988, he possessed a small amount of a white powdery substance which field tested positive for cocaine.
13. There is clear and convincing evidence that defendant Spanjol possessed cocaine, in violation of 21 U.S.C. § 844.
14. Defendant Spanjol is currently released on bail from a court in Dallas after recently being arrested for possession of cocaine.
15. There is evidence that the defendants are a danger to the community under Himler, although the evidence is not clear and convincing.
16. When defendant Cole was arrested, he possessed a birth registration card from the Arkansas Department of Health bearing the name Jesse Dean Winkle, Jr., showing a birth date of November 17, 1942, and he also possessed a phone card from U.S. Sprint in the name of Cliff Dawson.
17. In a tape-recorded conversation with an undercover agent, defendant Cole stated that if he fled the jurisdiction after an arrest, he would change his identity and return to the United States to continue his illegal activities.
18. There is more than a preponderance of evidence to establish that defendants Cole and Spanjol present a serious risk of flight and that no condition or combination of conditions will reasonably assure their appearance at trial.
The Third Circuit has held that pretrial detention is only allowed when there is "proof of a likelihood of flight, a threatened obstruction of justice or a danger of recidivism in one or more of the crimes actually specified in the bail statute [ 18 U.S.C. 3142(f)(1)]." Himler, 797 F.2d at 160. The threat of recidivism alone does not justify pretrial detention for danger to the community. Id. ("If Congress had intended to authorize pretrial detention in all cases where recidivism appears likely it could easily have done so.").
Before this Court can find that the defendants' danger to the community can justify pretrial detention, the Government must show that the defendants pose a danger of recidivism in at least one of the crimes listed in 18 U.S.C. § 3142(f)(1) or that they will obstruct justice. Neither defendant has been indicted for any of the listed offenses, the Government has failed to establish the crime of espionage
by clear and convincing evidence, and simple possession of cocaine under 21 U.S.C. § 844, while a listed offense, does not carry a maximum penalty of ten (10) or more years. Moreover, the Government has made no showing that either defendant will obstruct justice if released pending trial. Therefore, the defendants may not be detained pending trial as a danger to the community.
The next issue for determination is whether the defendants may be detained if they pose a risk of flight but do not pose a danger to the community. The Third Circuit has implicitly held that risk of flight alone is sufficient to merit pretrial detention. Himler, 797 F.2d at 160 (After holding that the defendant's danger to the community was insufficient to merit pretrial detention, the Court held that the defendant could only be detained "if the record supports a finding that he is a serious risk of flight."). Indeed, courts that have directly considered this question have uniformly determined that either danger to the community or serious risk of flight is sufficient to merit pretrial detention. See, United States v. Askari, 608 F. Supp. 1045 (E.D. Pa. 1985); United States v. Kouyoumdjian, 601 F. Supp. 1506 (C.D. Cal. 1985); United States v. Resek, 602 F. Supp. 1126, 1128-29 n.1 (S.D.N.Y. 1985).
Defendants Cole and Spanjol pose a serious risk of flight and no conditions or combination of conditions will reasonably assure their appearance at trial. The risk of flight has been established by the Government well beyond the requisite preponderance of the evidence standard. See Himler, 797 F.2d at 161. The most convincing evidence is provided by the tape recorded conversations where both defendants stated to undercover agents that they would flee if they were arrested.
In addition, the facts established by the Government show that both defendants have the knowledge, ability and resources to assume new identities and to travel outside this country without being detected by U.S. authorities.
The evidence of espionage provides further support for the defendants' risk of flight. Although the evidence of espionage in this case, without more, is not sufficient to merit detaining defendants Cole and Spanjol pending trial, the evidence of espionage that exists is relevant to the defendants' ability to flee before trial. See United States v. Kostadinov, 572 F. Supp. 1547, 1551 (S.D.N.Y. 1983), aff'd, 721 F.2d 411 (2d Cir. 1983).
Although I find that the defendants do not pose a danger to the community sufficient to merit pretrial detention, I do find that they pose a serious risk of flight and that no condition or combination of conditions will reasonably assure the appearance of the defendants as required. Therefore, I affirm the Detention Orders issued by Magistrate Powers.
An appropriate Order follows.
AND NOW, to wit, this 23rd day of December, IT IS ORDERED that the requests for bail by defendants Hubert Francis Cole and Vjekoslov Spanjol are DENIED and said defendants shall be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; that they be afforded reasonable opportunity for private consultation with their respective counsel; and that, on an order of a court of the United States or on the request of an attorney for the Government, the person in charge of the corrections facility in which they are confined deliver them to a United States marshal for the purpose of an appearance in connection with a court proceeding.