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October 23, 1991


The opinion of the court was delivered by: Glasser, District Judge:


The defendant Locascio once again petitions this court for reconsideration of its order detaining him based upon a finding that the government has established by clear and convincing evidence that the defendant is a danger to the community and that there are no conditions or combination of conditions that would protect the community against the threat he poses to them. That finding was made after a full hearing at which the court heard extensive argument and evidence consisting to a very large extent of conversations electronically intercepted pursuant to a valid court order which convinced the court on December 21, 1990 that an order of detention was compelled. That order was one which the defendant could have appealed but elected not to. See 18 U.S.C. § 3145(c).

In a letter dated March 14, 1991, counsel for Locascio requested that the court reconsider its order of detention. A critical reading of that five-page request readily revealed that it was based upon the following assertions: (1) that the indictment and the evidence did not support the court's detention determination; (2) the voluminous surveillance tapes the government made available to the defendants make it difficult for Locascio to assist his counsel in preparing his defense; (3) Locascio does not have a criminal history which bespeaks violence and has personal problems which, essentially, derive from his separation from his aged mother; and (4) the duration of his detention.

Those assertions did not call to the court's attention any fact or any consequence of his detention not known before. If, as he claimed to believe, the evidence elicited at the detention hearing did not justify an order of detention, then an appeal from that order was the remedy to pursue. The court was and is obviously aware that detention of a defendant inhibits free and ready access to his counsel and the court was aware of Locascio's criminal history and his relationship with his mother. In an order dated June 14, 1991, I wrote that I carefully considered the affirmation of defendant's counsel in support of his motion for reconsideration and his oral argument supplementing his written presentation, as well as the written and oral response of the government. I denied the motion to reconsider for the reason that my attention had not been called to any matter which I had overlooked and would require modification of my order.

In making my determination, I also referred to Rule 3(j) of the Rules of the United States District Courts for the Southern and Eastern Districts of New York. That Rule provides, in substance, that a motion for reargument shall set forth matters which the court has overlooked. In doing so, I was careful to note that Rule 3(j) was to be found in the Civil Rules Section of those Rules and had no analogue in the section on Criminal Rules. I also observed that the standard of Rule 3(j) was a "prudent one clearly designed to avoid the repetitive hearing of the same presentation in lieu of seeking Appellate review." This motion and the petition for a writ of habeas corpus which has also been filed confirm the salutary purpose Rule 3(j) was designed to serve and the propriety of applying that standard in the context of a criminal case.

The defendant's counsel, in his sworn affirmation in support of this motion, writes, at paragraph 14:

  In the Memorandum and Order of June 14, 1991, the
  Court did not explain why it made reference to
  18 U.S.C. § 3145(b). Nothing contained in defense
  counsel's letter or the Notice of Motion filed on
  behalf of Mr. Locascio made reference to that
  section. Moreover, 18 U.S.C. § 3142(c)(3)
  specifically provides that a detained person has
  the right to petition the court of original
  jurisdiction, at any relevant time, for an order
  amending or changing an order of detention. Indeed
  the Court may even move, sua sponte, to amend or
  revoke a prior order of pretrial detention (see ¶
  ___, infra).

I am not aware of any principle which precludes or even inhibits me from making reference to a statute, decision or rule which I regard as relevant, indeed controlling, because neither was cited in the defendant's submission. Section § 3145(b), when read together with § 3145(c), should make readily apparent the relevance of the reference to those sections in my prior order. Section 3145(b) governs the review of a detention order issued by a magistrate or by a person other than a judge of a court having original jurisdiction over the offense. The person detained may seek review of that order with the court having original jurisdiction over the offense. That motion for review shall be determined promptly. As the defendant certainly knows, the order detaining Locascio was not issued by a magistrate or by some person not having original jurisdiction over the offense. The order of detention was issued by this court, which has original jurisdiction over the offenses with which Locascio was charged. That being so, the relevant statute is 18 U.S.C. § 3145(c), which provides that an appeal from a detention order, or from a decision denying revocation or amendment of such order, is governed by 28 U.S.C. § 1291 and 18 U.S.C. § 3731. Both sections clearly provide for appeals to the United States Court of Appeals. In my Memorandum and Order dated June 14, 1991 I concluded by stating that "[t]he remedy available to the person detained . . . is found in § 3145(c), namely, an appeal in accordance with 28 U.S.C. § 1291." The defendant has elected not to appeal either the order of detention entered on December 21, 1990, or the order entered on June 14, 1991 denying his motion to reconsider. He has, instead, filed repeated motions seeking the same relief based upon facts and circumstances which have not changed (with one exception to be addressed), since the original order of December 21, 1990.

The defendant asserts that 18 U.S.C. § 3142(c)(3) "specifically provides that a detained person has the right to petition the court of original jurisdiction, at any relevant time, for an order amending or changing an order of detention." (Greenfield Aff. ¶ 14) (emphasis added). The defendant's reliance upon § 3142(c)(3) is misplaced. That subdivision provides: "The judicial officer may at any time amend the order to impose additional or different conditions of release." (Emphasis added). Even the most casual reading of § 3142 will leave little doubt that subdivision (c)(3) has no application to conditions of detention. Only in subdivision (d) of § 3142 does the statute makes explicit provision for detention; it is also interesting to note that there is no provision in § 3142 which provides that a "judicial official may at any time amend an order to impose additional or different conditions of detention." The reliance by the defendant upon S.Rep. No. 98-225, 98th Cong., 2d Sess. 1, 16, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3199-3200 (Greenfield Aff. ¶ 29, pp. 13-14) is a commentary on § 3142(c)(3) pertaining to conditions of release.

It may be argued that 18 U.S.C. § 3142(f) contemplates the propriety of this motion, when, in providing for the detention hearing, it concludes:

  The hearing may be reopened before or after a
  determination by the judicial officer, at any time
  before trial, if the judicial officer finds that
  information exists that was not known to the
  movant at the time of the hearing and that has a
  material bearing on the issue 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.

The requirement of "promptness" explicitly qualifying § 3145(b) was not imposed on § 3142(f). More noteworthy, however, is the holding of the court in United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989), that the length of current or potential future detention cannot be considered under § 3142(f) "since it is not material to the risk of flight or dangerousness."

A substantial portion of the defendant's memorandum (and the affidavit of his counsel in support of this motion) is devoted to the time elapsed between the filing of this motion and the court's disposition of it. The defendant urges explicitly or implicitly that that lapse of time compels his release from detention. He relies for that contention upon 18 U.S.C. § 3145(b) and three cases, namely, United States v. Gonzales, 852 F.2d 1214 (9th Cir. 1988); United States v. Fernandez-Alfonso, 813 F.2d 1571 (9th Cir. 1987) and United States v. Jacob, 767 F.2d 505 (8th Cir. 1985).

As has already been demonstrated, ยง 3145(b) has no application to the order of detention entered by this court. The defendant's claim to assistance from the cases cited fares no better. Gonzales was detained following a finding by a magistrate that he was a danger to the community and a flight risk. He appealed that order to the district court and contended that the court's failure to act on his motion for thirty-six days violated his right to have his motion determined promptly ...

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