United States v. Gonzalez

675 F. Supp. 208, 1987 U.S. Dist. LEXIS 11884, 1987 WL 24870
CourtDistrict Court, D. New Jersey
DecidedDecember 22, 1987
DocketCrim. No. 87-376
StatusPublished

This text of 675 F. Supp. 208 (United States v. Gonzalez) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gonzalez, 675 F. Supp. 208, 1987 U.S. Dist. LEXIS 11884, 1987 WL 24870 (D.N.J. 1987).

Opinion

OPINION

BROTMAN, District Judge:

I. INTRODUCTION

Presently before the court is an application by the Government that defendants Francisco Hernandez and Juan Herran be detained pending trial, pursuant to the Bail Reform Act of 1984. Specifically, the government asserts that a rebuttable presumption has arisen that “no condition or combination of conditions will reasonably assure the appearance of the [defendants] as required and the safety of the community,” 18 U.S.C. § 3142(e), and that defendants have failed to introduce evidence sufficient to rebut this statutory presumption. The court agrees with the government that the aforementioned presumption has arisen in this case. The court also finds that this presumption has not been rebutted by defendant Hernandez, and therefore the pretrial detention of that defendant is ordered, consistent with the provisions set out in 18 U.S.C. § 3142(i). However, the court finds that defendant Herran has sufficiently rebutted the § 3142(e) presumption, and orders his release, subject to the conditions outlined in the following opinion and order.

II. FACTS and PROCEDURE

Defendants have been charged with: (1) conspiracy to distribute and to possess with intent to distribute quantities of narcotic drug controlled substances, in violation of 21 U.S.C. § 846; (2) knowingly and intentionally possessing with intent to distribute approximately 25 pounds of cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3) knowingly and intentionally possessing with intent to distribute more than 100 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). The factual allegations underlying the indictment are as follows.

On October 1, 1987, a car driven by Luis Gonzalez, a co-defendant named in the indictment against Hernandez and Herran, was stopped on the New Jersey Turnpike by New Jersey State Police. Upon searching the car, the officers discovered approximately 27 pounds of cocaine and heroin.

Mr. Gonzalez agreed to cooperate with the government authorities, and told the law enforcement officials that he had been intending to deliver the cocaine to “Francisco” and “Juan.” These names were determined later to refer to defendants Hernandez and Herran, respectively. Mr. Gonzalez also consented to making a controlled delivery of the cocaine, under the supervision of agents from the Drug Enforcement Agency (“DEA”).

This controlled delivery occurred at 2565 125th Street, College Point, Queens, New York, where defendants Hernandez and Herran allegedly had a coded discussion with Mr. Gonzalez regarding the narcotics. All three defendants then left College Point.

Thereafter, DEA agents observed Mr. Hernandez return to College Point, get in the car containing the cocaine, and drive to 10-21 166th Street, Whitestone, Queens. The agents then followed Mr. Hernandez into an apartment at that location, arrested him, and obtained his consent to search the apartment. This search uncovered a kilogram of cocaine, two fully loaded automatic weapons, and drug paraphernalia. DEA agents later arrested Mr. Herran near his residence, and, upon searching him, discovered approximately $8,000.00 in cash.

III.DISCUSSION

Under the Bail Reform Act, pretrial preventive detention is permissible only where a judicial officer determines, after a hearing, 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.” 18 U.S.C. § 3142. See United States v. Suppa, 799 F.2d 115, 117 (3d Cir.1986). In making this determination, the court is guided by a statutory presumption that arises under the Bail Reform Act when the defendant to be detained is charged with certain offenses:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably as[210]*210sure the appearance of the person as required and the safety of the community if the judicial officer finds that 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).

This Section 3142(e) presumption is applicable to the present case. Both defendants Hernandez and Herran have been indicted for violations of 21 U.S.C. § 841(a)(1), crimes which have maximum sentences of ten years or more. Furthermore, probable cause to believe that the defendants committed these offenses exists by virtue of the fact that a grand jury has returned an indictment against defendants Hernandez and Herran, charging them with violations of § 841(a)(1). See Suppa, 799 F.2d 115, 119 (3d Cir.1986) (holding that “the indictment is sufficient to support a finding of probable cause triggering the rebuttable presumption ... under § 3142(e).”). Therefore, the only issue remaining to be resolved is whether the defendants succeeded in rebutting this presumption at the detention hearing.

Section 3142(g) of the Bail Reform Act provides:

(g) Factors to be considered. The judicial officer shall, in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, take into account the available information concerning—
(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) The weight of the evidence against the person;
(3) The history and characteristics of the person, including—
(A) the person’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4)the nature and seriousness of the danger to any person or the community that would be posted by the person’s release.

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Related

United States v. Carbone, Adolph "Butch"
793 F.2d 559 (Third Circuit, 1986)
United States v. Frank Suppa
799 F.2d 115 (Third Circuit, 1986)
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652 F. Supp. 1446 (D. New Jersey, 1987)

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Bluebook (online)
675 F. Supp. 208, 1987 U.S. Dist. LEXIS 11884, 1987 WL 24870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gonzalez-njd-1987.