truck hijackings with guns for which the defendant has been indicted. Against this are the letters attesting to the defendant's character, family ties, employment, financial resources, length of residence in the community, community ties and past conduct with respect to his friends and neighbors.
Before receipt of the Second Circuit's opinion in United States of America v. Orena, et al., 986 F.2d 628, (2d Cir. 1993) issued on January 19, 1993, this Court proposed for the attorneys' consideration a set of conditions which might satisfy the requirement of assuring the safety of other persons in the community, namely, a $ 5,000,000.00 bond to be secured by a confession of judgment signed by the defendant and his wife and real properties with equities equalling approximately $ 2,000,000.00; house confinement monitored by an electronic bracelet with exceptions only for necessary medical care and funerals of immediate family; electronic and/or personal surveillance of defendant's house, twenty-four hours a day, seven days per week, with all of the costs of the electronic bracelet and surveillance to be paid for in advance monthly by the defendant; consents of the defendant and members of his family in residence to tap at will all telephones in the house and all of defendant's businesses; a condition of no visits or telephone conferences except with his lawyer and members of his immediate family; consents to be executed by the defendant and his wife to periodic random searches of his premises and the standard conditions of pretrial release including surrender of defendant's passport and waiver of extradition signed by the defendant.
Following the decision in the Orena case, the Government moved on January 25, 1993 to be relieved of further consideration of the bail conditions suggested by the Court as a possible ground for agreement between the parties on the grounds that the proposed bail conditions "have been rejected as conditions by the Second Circuit in the context of the Orena cases. Transcript of Conference, January 25, 1993 at 3. The Government argued "that the decision itself demonstrates that . . . if someone is dangerous to the community and these standards have to be imposed, then remand is the alternative pending trial as opposed to setting up a mini-MCC at Mr. Masotto's home." Id. at 4.
In Orena, the Second Circuit found that:
1. "The first two statutory factors, the nature and circumstances of the offense charged and the weight of evidence, weigh heavily against pre-trial release." Orena, 986 F.2d 628.
2. It agreed with Judge Glasser's conclusions in United States v. Gotti, 776 F. Supp. 666, 673 (E.D.N.Y. 1991) (which involved substantially similar bail conditions as were at issue in Orena and are at issue in the case at bar), that "the conditions proposed do not provide the assurances of safety the community deserves. The wonders of science and of sophisticated electronic technology have made mobile and portable telephones commonplace. Communication devices are easily carried in briefcases and even shirt pockets. Pen registers and wiretaps are easily circumvented. Monitoring equipment is easily rendered inoperative or becomes so by mechanical failure."
3. The "additional" conditions (such as the ones prescribed in the case at bar), "including house arrest, electronic surveillance, and interactions limited to immediate family, do not alleviate appellee's danger to the community." Orena, 986 F.2d 628.
4. "These conditions would at best 'elaborately replicate a detention facility without the confidence of security such a facility instills' . . . safety of the community will be assured only if the government provides trustworthy, trained staff to carry out the extensive monitoring of homes, telephones, and travel that would be necessary to ensure compliance with the conditions of bail. If staff were not provided, protection of the community would be left largely to the word of [the defendant] that he will obey the conditions. We find nothing in the Bail Reform Act that requires the government to staff home detention centers or allow dangerous defendants to be at large based upon their promise not to violate conditions of bail." Id. at *6 (quoting Gotti, 776 F. Supp. at 672).
5. "Quite apart from considerations of cost -- although these are important -- we do not believe that adequate staffing of home detention centers can be accomplished without extensive training both of the monitoring staff and their supervisors, activities not contemplated by the Bail Reform Act . . . whether, even with trained staff, home detention centers would adequately protect the community is problematic." Id.
In short, the Second Circuit appears to be saying to us that in the case of "dangerous defendants" the Bail Reform Act does not contemplate the type of conditions suggested by this Court and that, even if it did, the conditions would not protect the public or the community, given the ease with which many of them may be circumvented.
Defendant argues that lesser conditions were held to be sufficient to protect the public from two convicted defendants, Messrs. Santopietro, the former mayor of Waterbury, Connecticut and Pisciotti, an official of that city, even though there were alleged threats to Government witnesses in that alleged conspiracy case. United States v. Santopietro, F.2d , Nos. 92-1334(L), 1349, 1381. The alleged danger to the public and the community from those two defendants does not compare to the alleged danger from the defendant in the case at bar. The danger here is clearly closer to the danger presented by Messrs. Orena and Amato in the Orena case.
Under the circumstances, this Court feels that the Court of Appeals has virtually mandated that in a case of this kind, there are no conditions or combination of conditions which will reasonably assure the safety of any other person in the community and accordingly we must remand the defendant to detention and custody pending the trial of this action.
Thomas C. Platt, Jr.
Chief Judge, U.S.D.C.
Dated: Uniondale, New York
January 29, 1993
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