The opinion of the court was delivered by: DuBois, J.
Defendant is charged in the Third Superseding Indictment with: one count of conspiracy to distribute five kilograms or more of cocaine, twenty-eight grams or more of cocaine base ("crack"), and marijuana, in violation of 21 U.S.C. § 846; two counts of distribution of, and aiding and abetting the distribution of, five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2; and one count of distribution of, and aiding and abetting the distribution of, five kilograms or more of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.
Presently before the Court is defendant's Motion for Pre-Trial Supervised Release Pending Government Appeal Pursuant to 18 U.S.C. § 3143(c). Defendant was initially detained following a hearing before Magistrate Judge Caracappa on December 23, 2011. He now argues that the government's evidence in this case has been substantially diminished by the Court's Order of July 20, 2012, suppressing evidence obtained through use of a GPS tracker. Because of the suppression Order, defendant contends that pretrial release is now appropriate.
The Court conducted a hearing on defendant's motion on December 10, 2012. At the hearing, the government submitted evidence by proffer supporting the continued detention of defendant. Defendant also submitted evidence by testimony and proffer, which he argued warranted his release. For the reasons that follow, the Court denies defendant's Motion for Pre-Trial Supervised Release.
18 U.S.C. § 3142(e)(1) provides that a judicial officer shall order a defendant's detention pending trial "[i]f, after a hearing . . . , the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." The government has the burden of persuading the Court by a preponderance of the evidence that the defendant poses a risk of flight if released pending trial or by clear and convincing evidence that the defendant is a danger to the community. United States v. Himler, 797 F.2d 156, 160-61 (3d Cir. 1986).
Having reviewed the submissions of the parties and conducted a hearing on December 10, 2012, and incorporating the evidence received during the December 23, 2011, hearing on the government's motion for pretrial detention, the Court makes the following findings of fact:
1. There is probable cause to believe that from the fall of 2008 until March 30, 2011 defendant conspired to distribute five kilograms or more of cocaine, twenty-eight grams or more of cocaine base ("crack"), and marijuana.
2. There is probable cause to believe that on January 20 and 28, 2011 defendant knowingly and intentionally distributed, and aided and abetted the distribution of, five kilograms or more of cocaine.
3. There is probable cause to believe that on January 28, 2011 defendant knowingly and intentionally distributed, and aided and abetted the distribution of, five kilograms or more of cocaine, and that he did so within 1,000 feet of a school.
4. The government has proffered evidence of defendant's guilt, including the following:
a. In January 2011, defendant was observed on multiple occasions, by physical surveillance as well as video cameras, entering a warehouse located at 3075 Jasper Street, Philadelphia, Pennsylvania.
b. On March 30, 2011 agents searched the Jasper Street warehouse pursuant to a search warrant. They seized eight kilograms of cocaine, a loaded firearm, 171.2 grams of cocaine base, approximately $96,000 in cash, and tally sheets allegedly related to the drug operation.
c. The government is prepared to offer witnesses who will testify that: (1) defendant delivered cocaine to a co-defendant in January 2011, (2) defendant's name appears in drug ledgers seized from the Jasper Street warehouse, and (3) ...