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UNITED STATES v. SALOME

December 13, 1994

UNITED STATES OF AMERICA
v.
JAMES JOSEPH SALOME, JR.



The opinion of the court was delivered by: GUSTAVE DIAMOND

 DIAMOND, D.J.

 On November 8, 1994, following a ten-week jury trial, the defendant and six others were convicted of conspiracy to distribute and to possess with intent to distribute certain Schedule I and II controlled substances. Immediately following the jury verdict, this court revoked the defendant's bond pursuant to the mandatory detention provisions of 18 U.S.C. § 3143(a) (2). After the court ordered the defendant detained, the court also indicated, pursuant to a request from defense counsel, that it would entertain a motion for release by the defendant. Accordingly, on November 16, 1994, the defendant filed a "Motion for Bail/Release Pending Sentence and/or Appeal." This court conducted a hearing on defendant's motion on November 29, 1994, heard argument from counsel and took the matter under advisement. After careful consideration of the record and the controlling legal principles, the court has concluded that it must deny defendant's motion.

 I.

 The defendant has asked the court to release him "pending sentence and/or appeal." Because defendant has been found guilty of an offense and is awaiting the imposition of sentence, the language of 18 U.S.C. § 3143 mandates that the court only consider whether defendant has met the requirements for release set forth in § 3143(a). Accordingly, at this juncture, the defendant's request for release pending appeal is untimely and will not, indeed cannot, be considered by the court.

 Title 18 U.S.C. § 3143(a) governs the court's decision to detain or release a defendant pending sentence. In this case, the applicable subsection is § 3143(a)(2). It provides that a person who has been found guilty of an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act and is awaiting imposition of sentence "shall ... be detained unless ... the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; ... and 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 community." 18 U.S.C. § 3143(a)(2). The presumption is in favor of detention, and it is the defendant's burden to prove by clear and convincing evidence that he is not likely to flee or pose a danger to the community. United States v. Strong, 775 F.2d 504, 508 (3d Cir. 1985).

 As applied, the defendant was found guilty of conspiracy to distribute and to possess with intent to distribute in excess of (1) 100 kilograms of marijuana; (2) 5 kilograms of cocaine; and (3) 50 grams of cocaine base - "an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act." 18 U.S.C. § 3142(f)(1)(C). Thus, the court shall order the defendant detained unless there is (1) clear and convincing evidence that he is not likely to flee, (2) clear and convincing evidence that he does not pose a danger to any other person or to the community, and (3) a substantial likelihood that a motion for new trial or acquittal will be granted. See 18 U.S.C. § 3143(a) (2).

 Even if the court assumes, as it does for convenience, without deciding, that if released the defendant would pose no risk of danger to any other person or to the community and that there are conditions which would negate any likelihood that he would flee, the court must nevertheless order that the defendant be detained unless the court also finds that there is a substantial likelihood that a motion for new trial or acquittal will be granted. Notwithstanding the fact that defendant has filed neither a motion for new trial nor a motion for acquittal at this stage of the proceedings, the instant motion sets forth the following arguments which the court will consider in deciding whether there is a substantial likelihood that a motion for new trial or acquittal will be granted:

 (1) Defendant submits that there was a fatal variance between the conspiracy alleged in the indictment and the testimony offered at trial. The defendant argues that the evidence adduced by the government at trial established the existence of numerous small conspiracies rather than the one large conspiracy which the government alleged in the indictment;

 (2) Defendant submits that the court erred in permitting the government to introduce evidence of acts of violence purportedly committed by some of the defendant's alleged co-conspirators. Defendant argues that these acts of violence had absolutely nothing to do with him, were not done in conjunction with any acts allegedly performed by him, were not performed on his behalf or at his request, and in fact had absolutely nothing to do with him;

 (3) Defendant submits that the court erred in excluding evidence concerning murders allegedly committed by government witness John Regis King, Jr. Defendant further submits that his rights to confrontation were violated by the court's ruling excluding this testimony; and,

 (4) Defendant submits that the court erred in refusing to sever his case from that of his wife, Diane Salome. Defendant argues that this precluded him from introducing evidence of marital communications.

 After careful consideration of these arguments, the court finds that none of them warrants a new trial or judgment of acquittal. As to argument (1), the defendant contends that there was a fatal variance between the conspiracy alleged in the indictment and the evidence adduced at trial. The court disagrees. At the close of the government's case-in-chief, the defense moved for judgment of acquittal based on this argument, which had been made in various forms at other times prior to and during the trial, and rejected by the court. The motion again was extensively argued. After carefully considering the applicable law and weighing all of the evidence, the court denied the motion and found that a reasonable jury, believing all of the government's evidence, could find the existence of a single conspiracy beyond a reasonable doubt. In so ruling, the court relied on, inter alia, United States v. Padilla, 982 F.2d 110, 114 (3d Cir. 1992). The court is satisfied that its ruling was correct.

 As to argument (3), the defendant contends that the court erred in excluding evidence concerning murders allegedly committed by government witness John Regis King, Jr. This issue was briefed on two separate occasions before and during the trial and argued orally on numerous occasions in between. The court notes that the defendants were given wide latitude in cross-examining all of the witnesses concerning acts of violence by John King and his alleged grounds for bias against the defendants. The court believes that it was well within its discretion in ruling that additional ...


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