The opinion of the court was delivered by: Lee, District Judge.
Before the Court is the Motion of the defendant, Mohammed
Mustakeem, (Mustakeem) for release on bail.
Mustakeem was convicted of the crime of conspiracy to possess
with the intent to distribute in excess of 500 grams of cocaine
in violation of 21 U.S.C.A. § 846.*fn1
During trial, the Government adduced evidence to prove, inter
alia, that Mustakeem was arrested on August 16, 1990, at the
Marriott Inn, Borough of Green Tree, Allegheny County,
Pennsylvania, as part of a reverse sting undercover operation
conducted by agents of the Drug Enforcement Administration (DEA)
together with various other local law enforcement agencies; that
Mustakeem agreed to purchase four kilograms of cocaine from a
confidential informant for the price of approximately $132,000;
that Mustakeem was accompanied by an unindicted accomplice, who
was waiting for Mustakeem in a vehicle in Marriott parking lot
and who was in possession of a fully loaded five-shot .38 caliber
pistol; that Mustakeem had previously engaged in the sale of
cocaine and had previously caused his armed accomplice to
threaten a complaining drug purchaser with the weapon.
In support of his Motion for release on bail, Mustakeem claims
he is the owner of several businesses and the lessee of office
space in Atlanta, Georgia;*fn2 that he is personally required to
conclude his business affairs; that he has "family ties" in the
Pittsburgh, Pennsylvania, area; that he has no prior criminal
record and is neither a risk for flight nor a danger to the
community because he never committed the crime for which he was
Mustakeem also asserts that he feels, apparently because of his
conviction, that "the judicial system has failed him."
Finally, Mustakeem points to the case of U.S. v. Jamie
Giampa, presently pending in this Court. Giampa was convicted of
various drug transactions and was also involved in prior drug
transactions with some of the Government witnesses in this case.
Mustakeem's counsel represents that Giampa's bail had been set
at $50,000 prior to trial and that after conviction was set
increased to $100,000 by another Judge of this Court. In effect,
Mustakeem argues that "parity" requires that he receive the same
treatment as Giampa.
At the time of Mustakeem's arrest for the instant charge, he
was denied bail due to the presumption raised by
18 U.S.C. § 3142(e).
At the hearing on his Motion, Mustakeem did not testify.
However, his counsel merely referred to the testimony of
Mustakeem at trial, and also represented that Mustakeem's family
living in Pittsburgh is willing to "put themselves on the line"
in connection with Mustakeem's release on bail. In addition,
Mustakeem's counsel argued that the Court could impose conditions
or a combination of conditions which would assure the appearance
of Mustakeem for his sentencing hearing which has been scheduled
for April 12, 1991.
For the reasons set forth below, Mustakeem's Motion will be
Effective November 29, 1990, Title IX of the Crime Control Act
of 1990, amended 18 U.S.C. § 3143(a),*fn3 to restrict release
pending sentence or appeal of individuals who have been convicted
of certain serious offenses set out in 18 U.S.C. § 3142(f)(1)(A),
(B) and (C).
Moreover, it also amended 18 U.S.C. § 3145 to provide for
release in certain "exceptional cases."
As amended, § 3143(a) reads as follows:
"Except as provided in paragraph (2), the judicial
officer . . . shall order that a person who has been
found guilty of an offense in a case described in
subparagraph (A), (B), or (C) of subsection (f)(1) of
§ 3142 and is awaiting ...