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finding that $1,000,000 in real estate designated for potential forfeiture, house arrest, and electronic monitoring would not reasonably assure appearance of the defendant at trial or the safety of the community.
Summary of this case from U.S. v. ZayasOpinion
Criminal Action No. 99-363.
July 30, 1999
MEMORANDUM AND ORDER
I. BACKGROUND
On June 28, 1999, defendant Joseph Merlino was arrested on drug charges by the Federal Bureau of Investigation ("FBI") and ordered temporarily detained for a pretrial detention hearing. On June 30, 1999, the defendant was charged in a two count indictment with conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846, and with unlawful use of communication facility in relation to a drug trafficking offense, in violation of 21 U.S.C. § 843(b). On July 1, 1999, Chief United States Magistrate Judge James R. Melinson held a pretrial detention hearing. Magistrate Judge Melinson found there was probable cause to believe that defendant had committed the offenses with which he was charged and ordered that defendant be detained pending trial pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3142. See Pretrial Detention Order, filed July 2, 1999, by Honorable Magistrate Judge James R. Melinson, United States v. Merlino, Cr. No. 99-363.
On July 12, 1999, the defendant filed with this Court a Motion to Reconsider the Pretrial Detention Order and to Permit Bail. On July 27, 1999, the Government filed a Response to the Defendant's Motion as well as its own Motion and Memorandum for Hearing and Defendant's Pretrial Detention. On July 28, 1999, this Court held a hearing on the two motions regarding the defendant's pretrial detention.
II. STANDARD OF REVIEW
This Court has jurisdiction to review the Magistrate Judge's decision under 18 U.S.C. § 3145(b). That section requires this Court to make a de novo determination of the findings of fact underlying the detention Order. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). However, the reasons articulated by the Magistrate must be given "respectful consideration."United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986).
Section 3142(e) of the Bail Reform Act provides, in pertinent part:
If, after a hearing pursuant to the provisions of subsection (f), 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, he shall order the detention of the person prior to trial . . . Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the personas required and the safety of the community if the judicial officer finds there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. §§ 801 et seq.). . . .18 U.S.C. § 3142(e). The Bail Reform Act sets forth four factors which the Court must consider in determining whether pretrial detention is warranted. These factors are:
(1) the nature and seriousness of the offense charged;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person including,inter alia, character, employment, family ties, community ties, length of residence in the community and criminal history;
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
See United States v. Traitz, 807 F.2d 322, 324 (3d Cir. 1986); see also 18 U.S.C. § 3142(g). The facts employed to support a detention decision must "be supported by clear and convincing evidence." 18 U.S.C. § 3142(f).
III. DISCUSSION
After an evidentiary hearing and argument of counsel for the Government and the defendant, Magistrate Judge Melinson made the following findings, which this Court now adopts:
A. Probable Cause and the Evidence in This Case
1. There is probable cause to believe that the defendant has violated 21 U.S.C. § 846 (conspiracy to distribute more than five kilograms of cocaine), and 21 U.S.C. § 843(b) (unlawful use of a communication facility), as charged in the indictment.
2. The evidence, as outlined in the indictment, in this case is strong and consists of testimony from a cooperating witness, testimony from an undercover FBI agent, audio and video recordings of drug related conversations and meetings involving various members of the conspiracy, including the defendant, and approximately three (3) kilograms of cocaine that was actually delivered to an undercover FBI agent by members of the conspiracy.
The evidence in this case shows that the Philadelphia [La Cosa Nostra ("LCN")] is a highly structured criminal enterprise with a well defined chainof-command The purpose of the Philadelphia LCN is to make money by illegal means. Ultimate authority within the Philadelphia LCN rests with the "Boss". . . . .
The evidence shows that Joseph Merlino, [was] the acting "Boss" of the Philadelphia LCN between February 1999 and June 24, 1999. . . .
3. The strength and nature of the case against the defendant and the corresponding probability and the defendant will be incarcerated for a significant period of time establishes his danger to other persons and the community and increases the high risk that the defendant will not appear as required by the Court.B. Minimum/Maximum Penalties
1. The Defendant is charged by indictment with conspiracy to distribute and possess with intent to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A); and unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b).
The penalties for conspiracy to distribute and possess with intent to distribute in excess of five kilograms of cocaine are: a mandatory minimun of ten (10) years imprisonment, a maximum of life imprisonment, a lifetime of supervised release with a mandatory minimum of five (5) years supervised release, a $4,000,000 fine and a $100 special assessment.
The penalties for unlawful use of a communication facility are: a maximum of four (4) years imprisonment, a maximum of three (3) years supervised release, a $250,000 fine and a $100 special assessment.
The Defendant now faces a total maximum sentence of life imprisonment.
2. Under the Sentencing Guidelines, the Government conservatively estimates that the Defendant faces a potential term of incarceration ranging from 210 to 262 months, that is, a sentence in excess of 20 years imprisonment.
3. Accordingly, the Defendant has a substantial incentive to flee.C. Criminal Record and Related Conduct
1. The Defendant has seven (7) arrests and two (2) prior criminal convictions.
2. In July 1984, the Defendant was convicted in Atlantic County Superior Court, New Jersey, of assault, complicity to assault, and complicity to possess a weapon.
3. In January 1990, the Defendant was convicted in the United States District Court for the Eastern District of Pennsylvania of conspiring to steal $350,000 from a Federal Armored Express car. Honorable Norma L. Shapiro sentenced the Defendant to four (4) years in prison, followed by five (5) years of probation.
4. In September 1992, while on probation for the armed robbery conviction, the Defendant was induced into the Philadelphia LCN.
5. In November 1993, Judge Shapiro found that the Defendant had violated the terms of his probation by associating with known felons and members of the Philadelphia LCN, in addition to providing false information regarding his employment. Judge Shapiro ordered that the Defendant be returned to jail for a period of approximately one (1) year.
6. Since his release from prison in November 1994, the Defendant has risen through the ranks of the Philadelphia LCN to become the acting "Boss." As the acting Boss of the Philadelphia LCN, the Defendant approves all criminal activities conducted by LCN members and their associates, and also receives a portion of the monies generated through the criminal activities conducted by LCN members and their associates.
In this regard, the evidence in this case shows that $10,180 [in] cash was seized from the Defendant during the execution of the arrest warrant on June 28, 1999.
7. During his arrest on June 28, 1999, the Defendant threatened the physical well-being of children belonging to a law enforcement officer participating in the arrest of the Defendant.
8. This track record indicates that conditions of release short of detention cannot reasonably assure the safety of the community or the Defendant's appearance as required by the Court.D. Ties to the Community
While the defendant arguably has ties to the Philadelphia community, the legislative history of the Comprehensive Crime Control Act of 1983 indicates that Congress found that community or family ties do not and should not weigh heavily in the risk of flight analysis. See Sen. Comm. on Judiciary, Comprehensive Crime Control Act of 1983, S. Rep. No. 98-225, 98th Cong., 1st Sess. 24, 25 (1983).E. Rebuttable Presumption
As there is probable cause to believe that the defendant committed an offense punishable by 10 or more years in jail under the Controlled Substances Act, there exists a rebuttable presumption that no condition of release, or combination of conditions, will reasonably assure the safety of any person and the community or reasonably assure the appearance of the defendant as required. The defendant has not rebutted this presumption.See Pretrial Detention Order, filed July 2, 1999, by Honorable Magistrate Judge James R. Melinson, United States v. Merlino, Cr. No. 99-363.
The Court now makes one additional finding. On July 27, 1999, a federal grand jury in Camden, New Jersey, returned an indictment charging Merlino with one count of making threats to an arresting officer, in violation of 18 U.S.C. § 115(a)(1)(B), and one count of making threats to the officer's family, in violation of 18 U.S.C. § 115(a)(1)(A). The indictment involves alleged threats against a Philadelphia detective who helped arrest Merlino on June 28, 1999, on cocaine-conspiracy charges, and his family. (See Hr'g Tr., 4; Gov't Ex. 1.)
In its Motion and Memorandum, the Government adopted verbatim the findings of Judge Melinson. (See Gov't's Mot. and Mem. at 2-6.) When asked by the Court whether the defense would be submitting a written response to the Government's Motion, defense counsel indicated that it would not. (Hr'g Tr., 51.) Defense counsel stated that it would be relying on the arguments made by counsel to the Court and the evidence presented during the hearing. (Id.) Defense counsel articulated six basic objections to the Government's Motion. First, the Government has produced no admissible evidence that Merlino is the leader of the Philadelphia La Cosa Nostra ("LCN"). (Id., 19.) Second, in a previous criminal matter, Merlino self-reported when his probation had been revoked for associating with known felons in violation of his supervised release. (Hr'g Tr., 20.) Third, people who testified against Merlino in a prior criminal proceeding were not harmed or threatened. (Id.) Fourth, Merlino is not likely to be found guilty of charges alleged in the two-count indictment returned by a federal grand jury in Camden, New Jersey. (Id., 20-21.) Fifth, Merlino has agreed to a conditional release that he contends should allay any concern that this Court might have of Merlino's danger to the community and risk of flight. (Id., 21.) Sixth, and finally, Merlino was an employee of Eppy's Steaks prior to his arrest and has never lied about this fact to Pretrial Services interviewers. (Id., 22.)
At the hearing conducted by this Court, the defendant produced two witnesses and sixteen (16) folders, which represented properties owned by more than 16 people. The defendant sought to be released on bail based principally on property to be posted which he claims to be worth approximately $1,000,000. (Hr'g Tr., 3). The other conditions proposed by the defendant would include house arrest and electronic monitoring, and supervision by a family member who is a member of the clergy. (Id.)
The family member testified that he would be willing to accept supervisory responsibilities over the defendant as instructed by the Court. (Hr'g Tr., 44.) The witness testified, however, that as President of Archbishop High School, he would not be able to live with the defendant nor monitor his activities twenty-four (24) hours a day. (Id., 45.)
The General Manager of Eppy's Steakhouse testified that the defendant worked for him on a part-time basis and was being trained for a full-time position. (Id., 23.) The witness testified, however, that the only records of employment that Eppy's Steakhouse has regarding the employment of Joseph Merlino are two checks which have not yet been produced to the Government. (Id., 38, 40.) The checks constitute a total of two weeks pay and totaled, after taxes, approximately $800. (Id., 38.)
The Court finds that Merlino has presented the Court with no new information that alters the facts which support the need to detain Merlino pretrial nor alters the findings of Magistrate Judge Melinson. Examining the relevant factors, the Court notes that the defendant has been charged with conspiracy to distribute and possess with intent to distribute in excess of 5 kilograms of cocaine and unlawful use of a communication facility. The seriousness of a charge of intending to distribute as much as 5 kilograms of cocaine cannot be disputed.
Even assuming that the defendant has no affiliation with the Philadelphia LCN, the Court finds that the evidence of drug trafficking is strong enough to warrant defendant's detention prior to trial. The evidence, as outlined in the indictment, in this case is strong and consists of testimony from a cooperating witness, testimony from an undercover FBI agent, audio and video recordings of drug related conversations and meetings involving various members of the conspiracy, including the defendant.
While the defendant arguably has ties to the Philadelphia community, the legislative history of the Comprehensive Crime Control Act of 1983 indicates that Congress found that community or family ties do not and should not weigh heavily in the risk of flight analysis. See Sen. Comm. on Judiciary, Comprehensive Crime Control Act of 1983, S. Rep. No. 98-225, 98th Cong., 1st Sess. 24, 25 (1983).
Releasing an individual who has been charged with intending to distribute 5 kilograms to the community certainly presents a potential danger to the community. Congress has declared that drug trafficking is a danger to the community. Id. (drug dealers engage in continuing patterns of criminal activity; they pose a "significant" risk of pretrial recidivism). "Safety" as comprehended by the Bail Reform Act includes a reasonable assurance that drug dealing will not continue. United States v. Perry, 788 F.2d 100, 112-13 (3d Cir.), cert. denied, 479 U.S. 864 (1986); United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985). Moreover, the two count indictment from the federal grand jury in the District of New Jersey, is proof that the defendant poses a significant threat of death or serious physical injury to a Philadelphia police officer and his family. The argument by defense counsel that this Court should ignore a federal grand jury indictment, because "it's hard for [him] to imagine an American juror finding Mr. Merlino guilty of either of those counts based on what the grand jury has apparently heard" (Hr'g Tr., 20-21), has absolutely no merit. Indeed, the Philadelphia police force has taken the precaution of putting a 24-hour guard at the police officer's home, his wife, and his children. Defense counsel's suggestion that this is a ploy to make the Government's position stronger, (Hr'g Tr., 52-53), is without foundation.
Moreover, narcotics trafficking poses a risk of flight. Congress explained:
Flight to avoid prosecution is particularly high among persons charged with major drug offenses . . . these persons have both the resources and foreign contacts to escape to other countries with relative ease . . . even the prospect of forfeiture of bond in the hundreds of thousands of dollars has proven to be ineffective in assuring the appearance of major drug dealers.
S. Rep. No. 225, 98th Cong., 2d Sess. 12-12, reprinted in U.S. Code. Cong. Ad. News 3182, 3195-96, 3203. Further, the fact that the charges carry a mandatory minimum of 10 years imprisonment with a maximum of life provides the defendant with all the incentive he needs to flee this jurisdiction.
Based on the foregoing, the Court finds that the designation of real estate with a value of approximately $1,000,000 for potential forfeiture, house arrest, electronic monitoring, and part-time supervision by a family member will not reasonably assure the appearance of the defendant at trial or the safety of other persons and the community. As there is probable cause to believe that the defendant committed an offense punishable by 10 or more years in jail under the Controlled Substances Act, there exists a rebuttable presumption that no condition of release, or combination of conditions, will reasonably assure the safety of any person and the community or reasonably assure the appearance of the defendant as required. The defendant has failed to rebut that presumption.
An appropriate Order follows.
ORDER
AND NOW, this 30th day of July, 1999, upon consideration of defendant's Motion to Reconsider the Pretrial Detention Order and to Permit Bail (Docket No. 16) and Government's Response and Motion for Pretrial Detention (Docket No. 18), IT IS HEREBY ORDERED that:(1) the defendant's Motion to Reconsider the Pretrial Detention Order and to Permit Bail is DENIED; and
(2) the Government's Motion for Pretrial Detention is GRANTED.