The opinion of the court was delivered by: Arcara, District Judge.
Pursuant to an arrest warrant, defendant was arrested on
September 12, 2000. During and subsequent to the arrest, law
enforcement officers found defendant to be in possession of,
inter alia, methamphetamine, certain precursor chemicals
necessary for the manufacture of methamphetamine, over 100
marijuana plants, and a weapon. On the same day of the arrest,
defendant was arraigned by United States Magistrate Judge Leslie
G. Foschio. At that time, the government moved for detention of
defendant pending trial, pursuant to 18 U.S.C. § 3142(f)(1)(C).
The Pretrial Services Office also submitted a written report
recommending that defendant be detained pending trial. At
defense counsel's request, the detention hearing was adjourned
until September 15, 2000.
The detention hearing commenced on September 15, 2000. At the
hearing, the government proceeded by way of proffer. Following
the government's proffer, defense counsel requested a
continuance for the purposes of preparing a rebuttal to the
government's proffer. The hearing was then continued until
September 21, 2000.
On that date, defense counsel asked for another continuance
and the hearing was continued until September 28, 2000. On
September 28, 2000, defense counsel, proceeding by way of
proffer, attempted to rebut the government's proffer. At the
conclusion of the hearing, Magistrate Judge Foschio denied the
government's motion for detention and set bail in the amount of
$50,000, to be secured by a minimum of $25,000 cash or property.
He also imposed certain other conditions and reporting
requirements. The government indicated to the Magistrate Judge
that it intended to appeal the release order to this Court and
the Magistrate Judge therefore stayed defendant's release
pending the appeal. The Magistrate Judge filed a release order
on October 5, 2000, and the government's appeal was filed on
October 10, 2000.
On October 11, 2000, defendant was charged in a second
indictment (00-CV-185) with offenses arising from the drugs and
weapon allegedly discovered to be in his possession at or around
the time of his arrest on the first indictment. The four-count
indictment charges defendant with one count of possession with
intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A); one count
of possession with intent to distribute 100 or more marijuana
plants, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B);
one count of possession of ephedrine with intent to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(d)(1); and one
count of possession of a firearm in furtherance of drug
trafficking crimes, in violation of 18 U.S.C. § 924(c)(1).
On October 17, 2000, defendant was arraigned by Magistrate
Judge Foschio on the second indictment. The government again
moved for detention of defendant pending trial and the Pretrial
Services Office again submitted a written report recommending
that defendant be detained. A hearing on the detention motion
was held on October 25, 2000, at which time Magistrate Judge
Foschio denied the government's detention motion and set bail at
$250,000, to be fully secured by cash and property, with a
minimum $25,000 cash. He also set certain other conditions and
A de novo hearing on the appeals commenced on December 4,
2000. At the hearing, the Court asked defense counsel to provide
additional information regarding defendant's prospective
employment and, with defendant's consent, continued the hearing
to December 7, 2000.
On December 7, 2000, the parties informed the Court that
defendant was scheduled for a trial on December 13, 2000 on an
unrelated state court criminal charge of felony assault. Due to
the possible impact of a conviction on the state charges on the
bail issue, the Court, with defendant's consent, continued the
hearing to December 15, 2000.
On December 15, 2000, the parties informed the Court that
defendant was convicted of misdemeanor assault in state court
and was awaiting sentencing. The Court, with defendant's
consent, continued the hearing to January 8, 2001.
On January 8, 2001, the parties informed the Court that
defendant was scheduled for sentencing in the state court on
February 2, 2001. Because the terms of the state court sentence
could have possibly rendered the bail issue moot, defense
counsel requested a continuance until after February 2, 2001.
Accordingly, the Court continued the hearing to February 7,
On February 7, 2001, the parties informed the Court that
defendant received a sentence of time served on his state court
misdemeanor assault conviction. The Court then completed the
hearing and reserved decision.
After considering the respective proffers of evidence at the
hearing, reviewing the transcript of the proceedings before the
Magistrate Judge and the submissions of the parties, and hearing
argument from counsel, the Court finds, pursuant to
18 U.S.C. § 3142, that no condition or combination of conditions will
reasonably assure the safety of the community if defendant is
released. Accordingly, the Court revokes Magistrate Judge
Foschio's release orders and orders that defendant be detained
The Court makes these findings of fact based on the evidence
presented by way of proffer at the hearings before Magistrate
Judge Foschio and this Court.
A. Background and Circumstances Surrounding Charged Conduct
The conduct charged in the first indictment (00-CR-159A)
arises from alleged sales in 1997 of methamphetamine and
marijuana by the defendant to a cooperating witness while in the
presence of an undercover agent.
The offenses charged in the second indictment (00-CR-185A)
arise out of circumstances surrounding defendant's arrest on the
first indictment. Defendant was arrested on the first indictment
on September 12, 2000, at his home in Tonawanda, New York.
During the arrest, agents found within defendant's residence a
stolen shotgun and ammunition for the shotgun. Agents also found
within the residence drug records, various recipes and
literature dealing with the manufacture of methamphetamine, a
thermos bottle containing approximately 3/4 ounce of
methamphetamine, and receipts showing money transfers totaling
more than $17,000 over a two-day period in September 2000.
Agents further discovered ...