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UNITED STATES v. COLE

December 23, 1988

UNITED STATES OF AMERICA
v.
HUBERT FRANCIS COLE and VJEKOSLOV SPANJOL



The opinion of the court was delivered by: DUBOIS

 JAN E. DuBOIS, UNITED STATES DISTRICT JUDGE.

 Presently before me are the motions of defendants Hubert Francis Cole and Vjekoslov Spanjol for Review and Revocation of Detention Orders entered on December 6, 1988. The detentions were ordered by Magistrate Richard A. Powers, III, who found that the government had met its burden by showing that no condition or combination of conditions would assure the appearance of the defendants at trial and the safety of the community.

 This Court has jurisdiction to review the Magistrate's decision under 18 U.S.C. § 3145(b). That section requires this Court to make a de novo determination of the findings of fact underlying the detention Order. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). However, the reasons articulated by the Magistrate must be given "respectful consideration." United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986). The transcript of the hearing before the Magistrate may also be admitted into evidence in the hearing before the District Court. See United States v. Allen, 605 F. Supp. 864 (W.D. Pa. 1985).

 At a hearing held before me on December 20, 1988, the transcript of the December 6, 1988 hearing before Magistrate Powers was admitted into evidence and additional evidence was received. I affirmed the Detention Orders issued by Magistrate Powers on December 6, 1988 and affirmed and adopted all of his findings, with the exception of finding number three (3) in both Orders. In finding number three in the Cole Order, Magistrate Powers found probable cause that defendant Cole had engaged in espionage activities in violation of 18 U.S.C. § 794. I found that there was clear and convincing evidence supporting this finding. In finding number three in the Spanjol Order, Magistrate Powers found probable cause that defendant Spanjol had engaged in espionage activities in violation of 18 U.S.C. § 794 and possession of cocaine in violation of 21 U.S.C. § 844. Again, I found that there was clear and convincing evidence supporting this finding.

 The purpose of this Memorandum is to modify and clarify the basis for this Court's affirmation of the detention Orders. To the extent that my decision read from the bench at the December 20, 1988 hearing conflicts with this Memorandum, it is hereby vacated.

 The Government's burden in demonstrating risk of flight justifying pretrial detention is the preponderance of the evidence standard. United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986). The Government's burden in demonstrating danger to the community justifying pretrial detention is the clear and convincing standard. Id. at 160.

 I hereby adopt the following findings made at the December 6, 1988 hearing before Magistrate Powers:

 1. On December 1, 1988, the defendant Hubert Francis Cole and the defendant Vjekoslov Spanjol were indicted by a federal grand jury in the Eastern District of Pennsylvania for conspiracy to defraud the United States, 18 U.S.C. § 371; failure to file U.S. Customs Currency Reports, 31 U.S.C. §§ 5316(a)(1)(A) and 5322(b); laundering proceeds of unlawful activity, 18 U.S.C. § 1956; failure to file IRS currency transaction reports, 31 U.S.C. §§ 5313 and 5322(b); interstate travel in aid of racketeering, 18 U.S.C. § 1952; and violation of the Arms Export Control Act, 22 U.S.C. § 2778.

 2. If convicted of all offenses in the indictment, defendant Cole faces a maximum penalty of 230 years imprisonment, and a fine of $ 10,600,000.00.

 3. If convicted of all offenses in the indictment, defendant Spanjol faces a maximum penalty of 100 years imprisonment, and a fine of $ 5,100,000.00.

 4. The defendants have used and have access to Yugoslavian passports and visas, as well as documents establishing the defendants as diplomatic couriers for Yugoslavia and establishing aliases for the defendants.

 5. Defendant Cole has used fictitious names and aliases, including the name "Milutin Colovic."

 6. The defendants have established bank accounts in Yugoslavia and have the capacity to secure the assistance of persons living in that country to assist them in ...


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