United States District Court, M.D. Pennsylvania
September 8, 2005.
Bradley Ostrander aka Bradley Brown, Defendant.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM and ORDER
Before the Court is Bradley Ostrander's ("Defendant") Motion
For Release Pending Trial. This Court held a hearing on the
motion on September 6, 2005.
For the reasons stated herein, the motion for bail will be
denied and the Defendant will be ordered detained.
The Defendant was charged in June of 2004 by way of a
Superseding Indictment with two counts of criminal conduct, one
of conspiracy to manufacture methamphetamine, and a second count
of selling and distributing methamphetamine. (See Doc. 12).
The Defendant has been in prison since June of 2004.
The Defendant has had Attorney Patrick Rogan and Attorney David
E. Butler representing him at different times but he had some
disagreements with them and at this point argues they did not
properly interview him or question him and he was unsatisfied
with their representation.
Recently, the Defendant appeared in Court and this Court was
notified he would enter a plea of guilty pursuant to a plea agreement. Rather than plead guilty, however, the Defendant
indicated to the Court he was unsatisfied with the advice given
to him by Counsel and that he did not wish to enter into any plea
agreement and wished to enter a plea to an indictment or
superseding indictment without any plea agreement. To protect the
Defendant's interest the Court directed a brief continuance in
the case and appointed the Federal Public Defender's Office to
represent him. Attorney Gino Bartolai of the Federal Public
Defender's Office is presently representing the Defendant and
filed this motion seeking his release on bail.
II Presumption against Defendant's Release Pending Trial
At the outset of the hearing held September 6, 2005 the Court
was notified that Defendant, through Counsel, has also filed a
Motion to Suppress which the Government still has not responded
to since the time has not yet expired. The Government indicated
it will file a response and a hearing on the Motion will probably
be necessary. The case is presently set for trial on September
27, 2005 but may have to be continued again if the hearing and
action on the Motion is not completed by that time.
The concept of presumption of innocence i.e., that one is
presumed innocent until proved guilty, and the concept of being
entitled to be released on bail pending criminal charges being
disposed of or pending trial are two of the most revered and
long-standing rights that defendants are given under the criminal
law in the United States. These two rights come into significant play in
this case. As is true with all rights, the Court as well as
Counsel and the parties to this action must follow the law that
has been passed and developed in such cases.
The law on bail and right to bail pending disposition of
criminal charges is outlined in various cases such as U.S. v.
Delker, 757 F2 1390, (3d Cir. 1985) and U.S. v. Heilig,
633 F. Supp. 329, (1986), and in the United States Criminal Code at
18 U.S.C. 3341 et seq. At the outset of this case, the Court
referred to such legal authorities and Counsel for the Government
pointed out that very law provides that there is a presumption
against release and in favor of detention whenever a Defendant
either has a past record of violent behavior or the present
charges against him, as in this case, are drug charges which
provide potential penalties in excess of ten years. See
18 U.S.C. § 3142(e)(3). Therefore, the Defendant in this case is up against
a presumption that no conditions can be set which will reasonably
assure the safety of the community and that he will appear as
necessary in his case.
The Defendant through his Counsel acknowledged this presumption
and argued the presumption should not be invoked here because of
the peculiar circumstances of the case.
The Defendant indicated he is willing to accept any conditions
the Court would impose in order to gain his freedom on bail. He testified that he feels he can secure employment although he was
released from his last employment when his employer learned there
were criminal charges against him. He argues that he has been
steadily employed most of his life. He acknowledges he has two
children with separate mothers, neither of whom he ever married,
and states he has been making an effort to provide support as
required and has only been behind on support since he is in
prison. The Defendant further argued he has a place to live with
his present "paramour" and that he would be willing to accept any
conditions the Court imposed including treatment for addiction or
past addiction, and reporting as often as required. He argues he
never failed to appear in the past whenever he was required to do
so. The Defendant has a rather lengthy record of past criminal
behavior but argues there is no indication he was ever involved
in any violent conduct and that he is no longer addicted and will
never again allow himself to get involved in the use or sale of
The Government argues the Defendant indeed does have a past
record which is not good and, whether or not one would consider
whether there was violence in a previous burglary charged, the
Defendant's record indicates he is not a stable person and would
most likely be inclined to involve himself in criminal behavior
if released. (Defendant's record is part of a Pretrial Services
Report). The Government also argues the Defendant failed to overcome the
presumption against his release in that he did not establish on
the record enough evidence to indicate he is a person worthy of
being released to the community. In that regard, the Government
argues that Defendant does not have a job, is not married, and in
previous liaisons with women he has fathered children (even
though he never married either of the mothers) and has been
delinquent on the support payments to the children. The
Government further argues the Defendant acknowledges these facts.
The Government also asserts the Defendant admits past use of
methamphetamines and that while he was in prison on previous
charges he never sought to involve himself in any treatment
programs that might have been available at the institutions where
he was incarcerated.
The Government further argues that the length of time Defendant
has been in prison is mainly due to the Defendant's own motions
regarding Counsel and prior plea agreements. Additionally, the
Government argues there is a motion filed by the Defendant which
will require the Government's response and perhaps even further
hearing and perhaps further delay of the trial in this case.
Finally and most importantly, the Government argues it has a
strong case against the Defendant regarding the present drug
charges; that a Co-defendant will testify against him; and that
others who are cooperating with the Government will testify that they in turn were involved with or bought drugs from this
In ascertaining whether to detain or release a defendant, the
court is directed by the statute to consider the available
information concerning several factors, including: (1) the nature
and seriousness of the offense charged; (2) the weight of
evidence against the defendant; (3) the defendant's character,
physical and mental condition, family and community ties, past
conduct, history relating to drug or alcohol abuse, and criminal
history; and (4) the nature and seriousness of the danger to any
person or the community that would be posed by the defendant's
release. (See BRA § 3142(g)).
As a result of the hearing, testimony and argument in this case
the Court finds as follows:
1. There is probable cause to believe the Defendant
will be convicted of charges where the law provides a
possible sentence of ten years or greater in prison,
thus a rebuttable presumption arises against release.
(See 18 U.S.C. 3142 (f)(1)(A)).
2. The Defendant has not overcome the presumption
that no conditions or combination of conditions will
reasonably assure his appearance, and the safety of
other persons and the community.
3. The Government by argument and testimony has shown
there is strong evidence against the Defendant.
4. The Defendant has not shown or established
ownership or availability of any property or funds
which could be posted as collateral to secure his
bail. 5. The Defendant has acknowledged past drug use and
6. The Defendant has not established any strong
family ties in the community.
7. The Defendant has not established that he would be
able to or that he has obtained employment. ORDER
Now, this 8th day of September 2005, the defendant's Motion
for Release Pending Trial is DENIED.
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