United States District Court, Western District of Pennsylvania
March 4, 1991
UNITED STATES OF AMERICA
MOHAMMED MUSTAKEEM, DEFENDANT.
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."
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
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 imposition or execution of
sentence be detained unless —
"(A)(i) the judicial officer finds there is a
substantial likelihood that a motion for acquittal or
new trial will be granted; or "(ii) an attorney for
the Government has recommended that no sentence of
imprisonment be imposed on the person; and
"(B) the judicial officer finds by clear and
convincing evidence that the person is not likely to
flee or pose a danger to any other person or the
Subsection (c) of § 3145 of Title 18 U.S.C. is amended by
adding the following:
"A person subject to detention pursuant to section
3242(a)(2) or (b)(2), and who meets the conditions of
release set forth in section 3242(a)(1) or (b)(1),
may be ordered released, under appropriate
conditions, by the judicial officer, if it is clearly
shown that there are exceptional reasons why such
person's detention would not be appropriate."*fn4
The crimes specified in 18 U.S.C. § 3142(f)(1) are:
(A) A crime of violence;
(B) An offense for which the maximum sentence is life
imprisonment or death;
(C) An offense for which a maximum term of
imprisonment of ten years or more is proscribed in
the Controlled Substances Act (21 U.S.C. § 801 et
seq.), the Controlled Substances Import and Export
Act, (21 U.S.C. § 951 et seq.), or
section 1 of the Act of September 15, 1980
(21 U.S.C. § 955a); or
(D) Any felony if the person has been convicted of
two or more offenses described in subparagraphs (A)
through (C) of this paragraph, or two or more State
or local offenses that would have been offenses
described in subparagraphs (A) through (C) of this
paragraph if a circumstance giving rise to Federal
jurisdiction had existed, or a combination of such
It is clear that the crime of which the defendant has been
convicted falls within the parameters of § 3142(f)(1)(C) in that
the maximum sentence the defendant can receive is more than ten
years. In any event, the defendant is subject to a minimum
mandatory sentence of not less than five years.
Under the Sentencing Guidelines, if one kilogram of cocaine is
involved and assuming Mustakeem's criminal history category of
zero or one, the base offense level for Mustakeem is 26 which
would place the sentence in the 63 to 78 month range.
However, if four kilograms of cocaine are involved as is the
case here, the base offense level is 30 and assuming a criminal
history category of zero or one, the sentence is in the 97 to 120
Since the attorney for the government has not recommended that
no sentence of imprisonment be imposed on Mustakeem, this Court
then must focus on whether . . . (i) there is a substantial
likelihood that a motion for acquittal or a new trial will be
granted and (ii) there is clear and convincing evidence that
the defendant is not likely to flee or pose a danger to any other
person or the community.
Based on the overwhelming evidence of Mustakeem's guilt, the
Court finds that there is no substantial likelihood that a motion
for acquittal or new trial will be granted.
Mustakeem has not cited any authority to support his argument
that there is a substantial constitutional issue in this case,
i.e., that the conduct of the Government is not authorized by
law, statutory or otherwise.
The Court's independent research has not uncovered any
authority dealing with this issue. However, the Supreme Court of
the United States in U.S. v. Russell, 411 U.S. 423, 93 S.Ct.
1637, 36 L.Ed.2d 366 (1973) in discussing the "entrapment"
defense and/or its progeny, made the following observation:
"The illicit manufacture of drugs is not a
sporadic, isolated criminal incident, but a
continuing, though illegal, business enterprise. In
order to obtain convictions for illegally
manufacturing drugs, the gathering of evidence of
past unlawful conduct frequently proves to be an all
but impossible task. Thus in drug-related offenses
law enforcement personnel have turned to one of the
only practicable means of detection: the infiltration
of drug rings and a limited participation in their
unlawful present practices. Such infiltration is a
recognized and permissible means of investigation; if
that be so, then the supply of some item of value
that the drug ring requires must, as a general rule,
also be permissible. For an agent will not be taken
into the confidence of the illegal entrepreneurs
unless he has something of value to offer them. Law
enforcement tactics such as this can hardly be said
to violate `fundamental fairness' or `shocking to the
universal sense of justice,'" Kinsella [v. United
States ex. rel. Singleton], supra, [361 U.S. 234, 80
S.Ct. 297, 4 L.Ed.2d 268 (1960)]; Id., 411 U.S. at
432, 93 S.Ct. at 1643.
It is noteworthy that Congress has specifically exempted law
enforcement officials from prosecution for activities in
connection with enforcement of drug laws. 21 U.S.C. § 885(d).
Moreover, while there is no specific reference in the drug acts
with regard to "reverse sting" operations, it is clear that
Congress is not unaware of such law enforcement tactics.
Indeed, in the legislative debate concerning the "Omnibus Drug
Initiative Act of 1988," 134 Cong.Rec. S15990 (daily ed. October
14, 1988) Senator Cochran, while urging assistance for United
States Attorneys throughout the country in drug prosecutions
"In drug cases alone, the shortage of prosecutors
is a serious problem, as described in a recent letter
to me from Robert Whitwell, U.S. Attorney for the
Northern District of Mississippi:
"Drugs are an ever-increasing problem in our
district; we have had major drug busts or cocaine
sales around the district. In Greenwood, either
defendants have been convicted so far in a
twelve-year cocaine and marijuana conspiracy.
Greenville's largest cocaine dealer, Fred Dotson, was
convicted with eleven others and is now serving 20
years. We also have a major cocaine conspiracy ready
for trial in Columbus. We have also convicted over
six major cocaine dealers in Tupelo, including police
officers. We have had about ten other major cocaine
cases and recently had two additional `Reverse Sting'
cases where large amounts of cash were seized by the
Mississippi Bureau of Narcotics and Tupelo Lee Metro
Unit. I mention this unit because there is only one
DEA agent in our 37 counties, and without the help of
the state narcotics bureau we simply could not
prosecute drug cases.
"There are no personnel assigned to the OCDETF drug
task force in our district as there are in every
other district in the Southeast region. We have been
promised one attorney position, but to date have
still been denied it after three years of requesting.
Of course Congress has supported Operation Alliance
and approved new positions, but we do feel each
district should be represented by a Task Force
Attorney to properly attack this very serious
matter." (Emphasis supplied)
At all times, the cocaine which Mustakeem agreed to purchase
was either in the possession or control of the Government and met
in all respects the guidelines of the DEA with regard to "reverse
sting" operations found at the Criminal Law Reporter, Vol. 20,
No. 17, February 2, 1977, p. 2-277:
"E. Undercover operations shall not include the
furnishing of a controlled substance except in
extraordinary cases after consultation with the
appropriate United States Attorney, when the
Administrator of DEA determines that there is reason
to believe such activity will lead to the prosecution
of one or more individuals who finance, control, or
direct a drug trafficking organization, or to the
interdiction of the flow of drugs from a significant
drug trafficking operation. In making such
determinations the Administrator of DEA shall take
into account the type and amount of drug involved;
its likelihood of reaching consumers; the number and
position in the drug trafficking organization of
subjects who have, and who have not, been
sufficiently identified to be arrested; the type and
amount of evidence necessary to complete the
investigation; the time required to attempt to do so;
and the likelihood of obtaining such evidence."*fn6
Therefore, the Court finds there is no substantial likelihood
that Mustakeem will be granted an acquittal or a new trial.
The evidentiary basis articulated by Mustakeem's counsel in
support of his contention that Mustakeem is not likely to flee or
pose a danger to any other person or the community does not
constitute requisite clear and convincing evidence for
Mustakeem's release on bail.*fn7
As a threshold, because of the crime of which Mustakeem is
convicted, there is a presumption that he is a danger to the
community. United States v. Strong, 775 F.2d 504 (3d Cir. 1985)
at 507 where the Court said:
"In light of the explicit equation of a drug
offense with danger to the safety of the community
for purposes of release or detention of a defendant
pending trial, it is manifest that Congress intended
the same equation when dealing with a defendant who
has already been convicted of such a drug offense and
is awaiting sentence."
The Court makes the following findings in support of its
conclusion that the defendant is both a flight risk and a danger
to the community:
(1) The transaction in question involves a serious narcotics
law transgression in that Mustakeem agreed to purchase four
kilograms of cocaine for approximately $132,000.
(2) The expert testimony of the Government established that the
cocaine in question was 95 percent pure and could be cut with
Inositol so as to quadruple the profits from street sales.
(3) The defendant's residence and business involvements have
been in Atlanta, Georgia, and not in the Western District of
(4) Mustakeem's family ties and his contention that he has
business matters which need to be wound up of themselves do not
overcome the presumption. U.S. v. Castiello, 878 F.2d 554 (1st
(5) Mustakeem's employment of an accomplice armed with a loaded
pistol which Mustakeem threatened to use against a dissatisfied
customer on at least one prior drug transaction and his past
history of drug dealing and his financial ability to flee all
dispel the defendant's contention that he is not a danger to the
community and/or is not a risk of flight. U.S. v. Bonavia,
671 F. Supp. 752 (S.D.Fla. 1987).
Mustakeem had originally agreed to purchase four kilograms of
cocaine for approximately $132,000. However, because he had no
prior drug dealings with the Government's confidential informant
and therefore did not entirely trust him, he only purchased one
kilogram of cocaine immediately prior to his arrest for the price
of $33,000, and postponed the purchase of the additional cocaine
for the following day. Therefore, the Court concludes that either
Mustakeem possesses approximately $99,000 or has access to that
amount, which would make it entirely feasible that he could very
well flee the jurisdiction. The sentence that he faces also
dispels his contention that there is no risk of flight. U.S. v.
Kenney, 603 F. Supp. 936 (D.Maine 1985).
(6) The fact that Mustakeem would accept the most stringent
conditions to insure his appearance for sentencing and to prevent
him from harming the community does not overcome the presumption.
U.S. v. Deitz, 629 F. Supp. 655 (N.D.N.Y. 1986).
Finally, the contention of Mustakeem that "parity" requires
this member of the Court to fix his bail at $100,000 as was the
bail granted to defendant Jamie Giampa is completely without
Obviously, the right to bail pending sentencing must be decided
on a case-by-case basis.
If Mustakeem's "parity" argument had merit, nevertheless, there
is no basis for the Court to compare Mustakeem's situation with
that of Giampa since the record is absolutely devoid of any
evidence which would permit a comparison, except the
representation of Mustakeem's counsel that Giampa was also
convicted of drug transactions.
Therefore, the inescapable conclusion that this Court must
reach is that
Mustakeem failed to meet his burden under 18 U.S.C. § 1343(a).