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U.S. v. MUSTAKEEM

March 4, 1991

UNITED STATES OF AMERICA
v.
MOHAMMED MUSTAKEEM, DEFENDANT.



The opinion of the court was delivered by: Lee, District Judge.

MEMORANDUM OPINION

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 convicted.

Mustakeem also asserts that he feels, apparently because of his conviction, that "the judicial system has failed him."

Moreover, Mustakeem claims that a substantial constitutional issue has been raised in this case which has not yet been decided by the United States Court of Appeals for the Third Circuit, i.e., there is no statutory authority or other legal basis which would authorize the Government to possess and/or distribute cocaine as it did during the "reverse sting" operation in question.

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 denied.

Discussion

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
  ยง 3142 and is awaiting ...

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