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UNITED STATES v. HALL

October 18, 1985

UNITED STATES OF AMERICA,
v.
THOMAS WARREN HALL, OCTAVIO CANO, EFREN ANDRADE, a/k/a JOSE RlVERA, JAIME GOMEX, JOHN MARTIN, LACY MAY, JUAN ALDANA, IRENE DITTO, NOVA MAY, and BILLY RUTLEDGE, Defendants



The opinion of the court was delivered by: MCCURN

MEMORANDUM-DECISION AND ORDER

NEAL P. McCURN, D.J.

 Presently before the court is defendant Octavio Cano's application for bail. For the reasons discussed below, the court grants defendant's application upon the terms and conditions hereinafter set forth.

 BACKGROUND

 Defendant Octavio Cano was arrested on April 11, 1985, in Montgomery County, New York near the site of an apparent "cocain factory". On June 21, 1985, the Federal Grand Jury returned an indictment charging Cano with one count of conspiring to manufacture, possess, and distribute cocaine, a Schedule II narcotic controlled substance, in violation of 21 U.S.C. § 841(a)(1); one count of manufacturing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of possessing cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and one count of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The indictment also charges defendant with knowingly making false statements concerning his citizenship in violation of 18 U.S.C. § 1001. A superceding indictment naming additional defendants was filed on September 13, 1985.

 The government moved, under the Bail Reform Act, 18 U.S.C. § 3142(f), to detain defendant pending trial on the grounds that defendant posed a danger to the community and a risk of flight. Following a hearing, Magistrate Smith denied defendant bail and ordered defendant detained until trial. The Magistrate found that probable cause existed to believe that defendant 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., and that although defendant Cano did not pose a danger to the community, he had not rebutted the presumption of flight established in 18 U.S.C. § 3142(e). In support of his decision, Magistrate Smith noted the strong evidence of defendant's guilt, including the fact that defendant was apprehended while hitchhiking on a country road less than a mile from the fire of the apparent "drug factory", he was scratched and disheveled "as would be consistent with rapid movement through the wooded area surrounding the fire scene", a photo of one of his companions was found at the "drug factory", and his clothes contained traces of cocaine. In addition, the Magistrate found that defendant showed "a willingness to deceive officials to gain his own ends", is a citizen of Columbia, and did not have substantial community ties in the United States.

 Defendant subsequently moved for reconsideration of the Magistrate's April 23, 1985 order. Magistrate Smith reaffirmed his decision by order dated May 10, 1985. Defendant now asks the court to revoke the Magistrate's detention orders and to set bail.

 DISCUSSION

 Section 3145(b) of the Bail Reform Act provides for review of a magistrate's detention order:

 
Review of a detention order. If a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly.

 18 U.S.C. § 3145(b). The Act does not specify the court's standard of review. Recent case law, however, supports the view that the court may, in its discretion, hold a new evidentiary hearing although it is not required to do so. United States v. Colombo, No. 85 Crim. 244, slip op. at 8-9 (E.D.N.Y. August 28, 1985) (the court may rely on record before the magistrate or take additional evidence). See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985). The court may not simply defer to the magistrate. The Second Circuit has stated that "a district court should fully reconsider a magistrate's denial of bail and in ruling on a motion for revocation or amendment of a detention order should not simply defer to the judgment of the magistrate, but reach its own independent conclusion." Id. In the present matter, the court has reviewed the evidence before the Magistrate, heard oral argument of counsel, and received additional evidence and briefing from the parties.

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

 
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 . . . .

 18 U.S.C. 3142(e). Subsection (e) also establishes two rebuttable presumptions: Where probable cause exists to believe that the accused 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.", it is presumed that no condition or combination of conditions will reasonably assure the accused's appearance as required or the community's safety. 18 U.S.C.§ 3142(e). *fn1" These presumptions do not change the fundamental presumption that the accused is innocent until proven guilty. 18 U.S.C. § 3142(j). The presumptions merely shift the burden of coming forward, not the burden of persuasion. United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir. 1985); United States v. Jessup, 757 F.2d 378, 381-82 (1st Cir. 1985); Colombo at 11. Once the defendant has presented some evidence to rebut ...


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