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UNITED STATES v. PIERO ARENA

March 11, 1995

UNITED STATES OF AMERICA, against PIERO ARENA, CARMELO PANZERA, SALVATORE SCIGLITANO et al., Defendants.


The opinion of the court was delivered by: THOMAS J. MCAVOY

 Defendants Carmelo Panzera and Salvatore Sciglitano were detained by order of Magistrate Judge Smith after a pre-trial detention hearing held on December 24, 1994. Panzera and Sciglitano now come before the court seeking review of Judge Smith's detention orders under 18 U.S.C. § 3145(b).

 I. Background:

 Both Defendants have been charged in the indictment with Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine in violation of 28 U.S.C. §§ 841 and 846. If convicted of these offenses, both defendants face a mandatory minimum term of imprisonment of ten years and a maximum term of life imprisonment.

 The Second Circuit has declared that when defendants seek review of a magistrate judge's detention order a district court should fully reconsider the magistrate's denial of bail. In undertaking such review the district court should not simply defer to the judgment of the magistrate judge, but should reach its own independent conclusion. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (citing United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir. 1985); United States v. Williams, 753 F.2d 329, 331 (4th Cir. 1985)). In short, such motions should be accorded substantially de novo review. Id. It is with these considerations in mind that the Court turns to the merits of these defendants' applications.

 II. Discussion:

 The Court first notes that both defendants are faced with the statutory presumptions of dangerousness and risk of flight. Those presumptions arise from 18 U.S.C. § 3142(e), which states in relevant part:

 
subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure 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 . . ..

 18 U.S.C. § 3142(e) (emphasis added). The Second Circuit has stated that "an indictment returned by a duly constituted and unbiased grand jury satisfies the Constitution as to the existence of probable cause that the defendant committed the crimes enumerated therein." United States v. Contreras, 776 F.2d 51, 54 (2d Cir. 1985) (citing Lawn v. United States, 355 U.S. 339, 349, 78 S. Ct. 311, 317, 2 L. Ed. 2d 321 (1958)). Thus, in the case at bar, since an indictment was returned by a duly constituted grand jury, there is probable cause to believe that the defendants committed the acts alleged in the indictment. Accordingly, since the alleged offenses carry a potential maximum term of life imprisonment, it is presumed that these defendants pose a significant risk of flight as well as a danger to the community.

 (a). Defendant Carmelo Panzera:

 Defendant Panzera claims that the Magistrate Judge erred when he found that Panzera had failed to rebut the statutory presumption of dangerousness. He points to the facts that he is a citizen of the United States; that he has resided in Kingston, New York for the past 26 years, wherein he owns a home valued in excess of $ 200,000.00 and a pizza business; that there is no evidence that his activities in the charged narcotics conspiracy were continuing beyond the arrests already made; that he is infirm because of his advanced age, diabetes and a blood platelet disorder, and speaks virtually no english; and that he has no known criminal record or history.

 The government retains the burden of proving dangerousness by clear and convincing evidence even when the statutory presumption has been invoked. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). Once a defendant introduces rebuttal evidence, however, the presumption does not disappear altogether, but rather continues to be weighed along with other factors. Id. The factors to be considered in assessing dangerousness are enumerated in § 3142(g) and include the nature and circumstances of the offense charged, the weight of the evidence against the defendant and the history and characteristics of the defendant and the nature and seriousness of the risk to the community. See United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985).

 The nature of Panzera's charged offense, § 3142(g)(1), weighs most heavily against his application. The government has alleged a wide-ranging, extensive international narcotics conspiracy. Not only does the crime charged "involve a narcotics drug," 18 U.S.C. § 3142(g)(1), it involves the importation of extremely large quantities of cocaine into this country. Such a conspiracy is a presumptively dangerous activity. Rodriguez 950 F.2d at 89. While in no way minimizing the seriousness of Panzera's alleged activity, however, review of the hearing transcript and the government's submissions reveals that Panzera's role is more properly characterized as a "facilitator" or "go-between" as compared to the his alleged co-conspirators who appear to be primary movers in the alleged transactions. (See Panzera Detention Hrng. Transcript. at 8-9, 11-12).

 As to the weight of the evidence against Panzera, § 3142(g)(2), the government proffers numerous wiretapped phone conversations where the defendant has acted as a facilitator or "middleman" in two separate drug transactions involving 25 kilograms and over 40 kilograms of cocaine. The government further claims that these ...


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