combined with defendant's prior conviction and the congressional findings, the significant quantities of drugs and lengthy duration of the conspiracy intimate that defendant is likely to continue illegal activities if released. Portes, 786 F.2d at 765. Based on the foregoing, the court finds that the evidence is clear and convincing that there is no condition or combination of conditions which will ensure the safety of other individuals or the community.
B. Risk of Flight
Defendant also has rebutted the presumption that he presents a risk of flight. Defendant offered the testimony of Alvarado, his probation officer while he was under supervision for the 1986 cocaine conviction. Alvarado testified that Chagra had reported to pretrial services as required while he was released on bond pending trial. Alvarado also testified that Chagra diligently complied with the requirements of his probation supervision resulting from his sentence in that case, including appearing as required for drug testing and other conferences. Defendant never tested positive for drugs during his probation. Defendant also offered records confirming that he had reported as required at all times while under court obligation on the cocaine charge.
In addition, defendant offered the testimony of Edward Abraham, his uncle. Abraham testified that he had been supporting defendant for a number of years by providing him with money for rent, tuition and living expenses. According to Abraham, defendant is a widower and is a full-time student at the University of Texas, El Paso ("UTEP") with a B average. Abraham also testified that neither he nor the defendant has any family in Mexico. Finally, Abraham testified that he had a net worth in excess of $ 200,000 and was willing to sign as surety on a bond in that amount. Abraham testified that his net worth was not such that he could afford to suffer a $ 200,000 loss and agreed to act as surety only because of his faith that Chagra would appear for trial. In addition, Abraham testified that he would be willing to act as a custodian for defendant as a condition of defendant's bond.
Once again, however, the entire record fails to provide sufficient assurance that defendant will appear as required. Although the record shows that defendant diligently reported for court during the pendency of his 1986 cocaine case, it is significant that the penalties he faces in the present case are far more severe. Defendant is thirty years old and is exposed to a minimum of twenty years imprisonment and perhaps more. For his 1986 conviction, defendant served six months imprisonment and five years probation. The evidence that defendant has strong family ties to El Paso and the character evidence discussed above must be discounted. Defendant has no steady employment, no dependents, and no permanent home there. Although he receives some income from a family trust, the evidence as to the extent of that income is contradictory. The defendant's enrollment at UTEP does little to convince the court that he does not pose a risk of flight. Defendant's family and friends, despite their character attestations, appear uninformed about the source of his income, his travels, his gambling activities and other important details which weigh against him. Mr. Abraham's agreement that he will act as custodian for defendant pending trial are unpersuasive. Although he appears sincere, the court is not persuaded that Abraham can assure defendant's appearance at trial. See United States v. Carlos, 777 F. Supp. 858, 861 (D.Kan. 1991) (mother's testimony that she would be her son's "personal jailor" insufficient).
In addition, there is evidence that defendant has engaged in extensive evasive activity. According to CIs and CWs, defendant has used a number of fictitious names and has at least two driver's licenses. Agent Guseman testified that he has information from a CI that each time defendant made a shipment of drugs to Pittsburgh, he would cross the border from El Paso into Mexico where he would await notification by pager that the shipment had been received without incident. There also is evidence that defendant has contacts in Mexico related to his illegal drug activities. Congress explained the significance of these facts when it enacted the BRA:
The Committee received testimony that flight to avoid prosecution is particularly high among persons charged with major drug offenses. Because of the extremely lucrative nature of drug trafficking, and the fact that drug traffickers often have established substantial ties outside the United States from whence most dangerous drugs are imported into the country, these persons have both the resources and foreign contacts to escape to other countries with relative ease in order to avoid prosecution for offenses punishable by lengthy prison sentences.
S.Rep. No. 225, 98th Cong., 1st Sess. 20 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3203; see also Sazenski, 806 F.2d at 847.
Based on the foregoing, the court concludes that a preponderance of the evidence indicates defendant presents a high risk of flight.
The magistrate judge in El Paso believed that a $ 100,000.00 appearance bond and the condition that Abraham act as his custodian would be sufficient to assure the defendant's appearance. In light of the large sums of cash which appear to have been involved in the conspiracy, this court is not satisfied that any sum would deter the defendant from flight. The court recognizes that it must consider all possible conditions of release. United States v. Jackson, 823 F.2d 4, 6 (2d Cir. 1987). Electronic monitoring and other means of personal supervision are insufficient, however, because they only notify authorities that the defendant is already fleeing. United States v. Levine, 770 F. Supp. 460, 468 (N.D.Ind. 1991). Thus, there is no condition or combination of conditions which will reasonably assure defendant's appearance for proceedings related to the indictment.
In sum, the court has reviewed the record and considered alternative conditions of release. The court concludes that clear and convincing evidence demonstrates that if released under any conditions defendant will present a danger to the community. The court also finds by a preponderance of the evidence that no condition or combination of conditions will reasonably assure defendant's appearance as required. Accordingly, defendant will be ordered detained pending trial.
An appropriate order will follow.
United States District Judge
Date: April 11, 1994
ORDER OF COURT
AND NOW, this 11th day of April, 1994, for the reasons stated in the opinion filed this day, IT IS ORDERED that the government's motion seeking revocation of a release order issued by a United States Magistrate Judge (Document No. 6) be, and the same hereby is, granted and defendant's bond is revoked.
United States District Judge