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UNITED STATES v. MASOTTO

January 29, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS MASOTTO, Defendant.



The opinion of the court was delivered by: THOMAS C. PLATT, JR.

MEMORANDUM AND ORDER

 PLATT, CHIEF JUDGE.

 Following his arrest pursuant to a warrant and an arraignment on a ten count indictment, defendant was detained in custody on an order of temporary detention issued by this Court on December 21, 1992 pending a hearing pursuant to the Bail Reform Act.

 Defendant applied for bail pending trial; the Government opposed the application by a letter dated January 6, 1993; defendant responded to the Government's letter by a letter of his attorney, Michael Rosen, dated January 7, 1993 and the Court held a hearing thereon on January 8, 1993. After the hearing, this Court called two conferences with the attorneys, one on January 15, 1993 and the other on January 20, 1993, in order to discuss a series of proposed bail conditions, described below, designed to assure the safety of others in the community during the defendant's pre-trial release. Then on January 25, 1993, the Government made an oral application before this Court to remand the defendant pending trial and reject any further consideration of the proposed bail conditions in light of the Second Circuit's recent decision in United States of America v. Orena, et al., 986 F.2d 628, (2d Cir. 1993). For the reasons stated below, the defendant is remanded to detention and custody pending the trial of this action.

 Section 3142 of Title 18 of the United States Code provides in pertinent part as follows:

 (a) In general.--Upon the appearance before a judicial officer of a person charged with an offense, the judicial officer shall issue an order that, pending trial, the person be --

 (1) released on personal recognizance or upon execution of an unsecured appearance bond, under subsection (b) of this section;

 (2) released on a condition or combination of conditions under subsection (c) of this section;

 (3) temporarily detained to permit revocation of conditional release, deportation, or exclusion under subsection (d) of this section; or

 (4) detained under subsection (e) of this section.

 * * * *

 (c) Release on conditions.-- (1) If the judicial officer determines that the release described in subsection (b) of this section will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person --

 (A) subject to the condition that the person not commit a Federal, State, or local crime during the period of release; and

 (B) subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community, which may include the condition that the person --

 (i) remain in the custody of a designated person, who agrees to assume supervision and to report any violation of a release condition to the Court, if the designated person is able reasonably to assure the judicial officer that the person will appear as required and will not pose a danger to the safety of any other person or the community;

 (ii) maintain employment, or, if unemployed, actively seek employment;

 (iii) maintain or commence an educational program;

 (iv) abide by specified restrictions on personal associations, place of abode, or travel;

 (v) avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense;

 (vi) report on a regular basis to a designated law enforcement agency, pretrial services agency, or other agency;

 (vii) comply with a specified curfew;

 (viii) refrain from possessing a firearm, destructive device, or other dangerous weapon;

 (ix) refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), without a prescription by a licensed medical practitioner;

 (x) undergo available medical, psychological, or psychiatric treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;

 (xi) execute an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial office may require;

 (xii) execute a bail bond with solvent sureties; who will execute an agreement to forfeit in such amount as is reasonably necessary to assure appearance of the person as required and shall provide the court with information regarding the value of the assets and liabilities of the surety if other than an approved surety and the nature and extent of encumbrances against the surety's property; such surety shall have a net worth which shall have sufficient unencumbered value to pay the amount of the bail bond;

 (xiii) return to custody for specified hours following release for employment, schooling, or other limited purposes; and

 (xiv) satisfy any other condition that is reasonably necessary to assure the appearance of the person as required and to assure the safety of ...


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