Opinion
00-CR-773 (S-1) (JG)
August 4, 2000
LORETTA LYNCH, United States Attorney, Eastern District of New York, Brooklyn, New York, By: Linda Lacewell, Assistant United States Attorney.
DAVID ZAPP, ESQ., Leonia, New Jersey, Attorney for Defendant.
MEMORANDUM AND ORDER
The government seeks review of Judge Pollak's July 21, 2000, order authorizing Ilan Zarger's release on conditions. The bail application was the subject of arguments before Judge Pollak on July 18 and July 21; familiarity with both of those proceedings is assumed. Upon review of the entire record, and after oral argument on August 3, 2000, I respectfully disagree with Judge Pollak and order that the permanent order of detention previously entered on July 6, 2000, shall remain undisturbed.
Zarger has been charged with, inter alia, operating a continuing criminal enterprise engaged in the distribution of MDMA, popularly known as "Ecstasy," in violation of 21 U.S.C. § 848. Under the Bail Reform Act of 1984, the charges trigger a rebuttable presumption that no condition or combination of conditions will reasonably assure the defendant's presence at trial. See 18 U.S.C. § 3142 (e). The presumption has not been rebutted.
Ilan Zarger is a citizen of Israel. Although he has lived in this country since he was approximately seven years old, he retains strong ties to Israel. He is childless, and is engaged to an Israeli citizen. He made a trip to Israel shortly before his arrest, and was about to make another trip there when he was arrested.
The defendant's incentive to flee is powerful. The evidence against him has yet to be tested, but much of it appears overwhelming, including audio and video tapes on which he conducts and talks about a large, lucrative drug business. While the defendant is of course presumed innocent, it is highly likely he will be convicted. If convicted, he will likely receive a lengthy prison term, after which he will be deported. Thus, the temptation to return to Israel now, rather than wait to be sent there after many years in prison, will be great.
In determining whether conditions of release could assure the defendant's continued presence for these proceedings, I have also considered that he falsely told the pretrial services officer that he is a U.S. citizen; that he was recorded saying that one of his distributors, who had recently been arrested, needed to be "frighten[ed] . . . so he won't talk"; that he planned to retain counsel to represent another arrested subordinate to prevent him from cooperating; and that he counseled his cousin to flee rather than face prosecution in another matter and offered to finance the flight. These actions bespeak a disrespect, perhaps even a contempt, for the judicial process. They increase the likelihood that the defendant will seek to undermine that process entirely by fleeing.
After July 18, 2000, proceeding, the Magistrate Judge was rightly unpersuaded that detention in his parents' home with an electronic bracelet, even with visitation and telephone restrictions, was insufficient to secure the defendant's continued presence. The parents are not exactly ideal custodians — there is ample reason to believe they were aware of the defendant's drug business, and that the defendant's father facilitated it. In any event, home detention with electronic monitoring does not prevent flight; at best, it limits a fleeing defendant's head start. In some cases, that is enough to tip the balance in favor of release. In the circumstances of this case, the Magistrate Judge felt otherwise, as do I.
I disagree with the Magistrate Judge's conclusion on July 21 that the additional condition of $1,000,000 of collateral, to be posted by Shalom Israeli as security for a release bond in the amount of $2.5 million warranted a different result. The security is admittedly substantial, but viewed in the context of the drug business the defendant is charged with managing, it would not be a crippling business expense by any means to reimburse the suretor, whose integrity is assumed. The government has also proffered evidence that the defendant has secreted funds — with his father and in Israel — that could be used for that purpose.
I have considered all of the factors set forth in 18 U.S.C. § 3142 (g). I find that there are no combination of conditions of release that will reasonably assure the appearance of the defendant as required in this case. Accordingly, the Magistrate Judge's July 21, 2000, order granting release on conditions is reversed, and the order of permanent detention entered on July 6, 2000, shall remain undisturbed.
So Ordered.