author: JOHN W. OLIVER, Senior District Judge. John W. Oliver John W. Oliver Senior Judge

text:
    UNITED STATES of America, Plaintiff, v. Glenn R. JEWETT, et al., Defendants.
    No. 85-00113-01/04-CR-W-1.
    United States District Court, W.D. Missouri, W.D.
    Dec. 18, 1985.

      Robert G. Ulrich, U.S. Atty., Robert E. Larsen, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.
    Ronald E. Partee, Kansas City, Mo., for defendants.
   MEMORANDUM AND ORDER DENYING MOTION FOR APPROVAL OF EXCESS COMPENSATION

I.

JOHN W. OLIVER, Senior District Judge.

This case pends on the motion of Ronald E. Partee, appointed counsel for the defendant Glenn R. Jewett, which requests (1) that this Court certify that compensation in excess of $2,000.00 is necessary for fair compensation and (2) that the Chief Judge of the United States Court of Appeals for the Eighth Circuit approve this Court’s certification. Appointed counsel’s request for certification will be denied.

II.

A.

18 U.S.C. § 3006A(d)(2) of the Criminal Justice Act provides that for “representation of a defendant before the United States magistrate or the district court, or both, the compensation to be paid to an attorney ... shall not exceed $2,000 for each attorney in a case in which one or more felonies are charged,____” Section 3006A(d)(3) provides that payment of fees “in excess of any maximum amount provided in paragraph (2) of this subsection may be made for extended or complex representation whenever the court in which the representation was rendered, ... certifies that the amount of the excess payment is necessary to provide fair compensation and the payment is approved by the chief judge of the circuit.”

The 1984 Amendment to the Criminal Justice Act. increased the former 1970 rate of $30.00 per hour for in court time to $60.00 per hour, the former 1970 rate of $20.00 per hour for out-of-court time to $40.00 per hour, and the 1970 maximum $1,000.00 amount that could be allowed by a district court to $2,000.00 maximum. The legislative history of the 1984 amendment, House Report No. 98-764, 98th Cong. 2d Sess., reprinted in 1984 U.S.Code Congressional and Administrative News 3667, stated two reasons in support of the 1984 increase in rates. The first reason was that “[wjhile legal fees and costs have increased dramatically during the past thirteen years, the 1970 hourly rates and máximums have never been adjusted and now constitute unrealistically low compensation for appointed counsel.”

The report stated the second reason that “[i]n addition, the very low statutory máximums have resulted in a substantial number of requests for payment in excess of the máximums, thus burdening the chief judges of the court of appeals with administrative determinations as to the reasonableness of requested excess compensation.” It is thus apparent that the Congress was of the view that when the 1970 rates and máximums were doubled in 1984, the need for requests for certification to the Chief Judge of the circuit would be substantially reduced.

It must also be noted that the Congress has always recognized that a substantial element of public service on the part of counsel appointed under the Criminal Justice Act was to be expected from members of the bar in the administration of the Act. In United States v. Thompson, 361 F.Supp. 879 (D.D.C.1973), Chief Judge Bazelon noted that when the rates and máximums were raised in 1970 above those provided in the 1964 Act, “the 1970 amendments were clearly intended to ease the financial burden of the attorney called upon to represent an indigent defendant in a federal criminal case. S.Rep. No. 91-790, 91st Cong., 2d Sess. at 14-15 (1970); H.R. Rep. No. 91-1546, 91st Cong., 2d Sess. at 4, 10 (1970).” He added that there “remains, however, a substantial element of public service on the part of appointed counsel, for Congress made it plain that the fees allowable under the amended Act ‘still [do] not provide full compensation.’ S.Rep. No. 91-790, supra, at 15”-and that these “matters must be kept in mind by the court when it fixes ‘fair compensation,’ and, in so doing, authorizes the expenditure of a very limited resource.”

Congress has always made clear that it intended that “fair compensation,” rather than “full compensation,” for appointed counsel was contemplated by the Criminal Justice Act. If the Congress intended that full, rather than fair compensation should be awarded it would not have placed any limitation on either the hourly rates or the maximum amounts that could be awarded.

We turn now to the guidelines and standards that have been promulgated by the Judicial Conference of the United States and by the Chief Judge of the Eighth Circuit under which a district court is required to make the determination of “fair compensation” to counsel appointed under the Criminal Justice Act.

B.

Volume VII of the Guide to Judiciary Policies and Procedures is entitled “Appointment of Counsel in Criminal Cases”. Chapter 2 contains the guidelines and standards approved by the Judicial Conference of the United States. In Section B, paragraph 2.22(B), p. 2-17 under the title of “maximum compensation,” it is stated that in “determining if an excess payment is warranted, the district court judge and the chief judge of the Circuit should make a threshold determination as to whether the case is either extended or complex.”

It was then stated that after “establishing that a case is extended or complex, the approving judicial officer should determine if excess payment is necessary to provide fair compensation.” In defining the criteria to be applied by a district court, the Judicial Conference stated:

The following criteria, among others, may be useful in this regard: responsibilities involved measured by the magnitude and importance of the case; manner in which duties were performed; knowledge, skill, efficiency, professionalism, and judgment required of and used by counsel; nature of counsel’s practice and injury thereto; any extraordinary pressure of time or other factors under which services were rendered; and any other circumstances relevant and material to a determination of a fair and reasonable fee.

The foregoing guidelines of the Judicial Conference were transmitted to the district courts by the Administrative Office in July 1978 and have not been substantially changed since that time.

C.

Shortly after the Honorable Donald P. Lay entered upon duty as Chief Judge of the Eighth Circuit on December 31, 1979, he directed a letter dated April 9, 1980 to all circuit and district judges in this circuit on the subject of awards of compensation under the Criminal Justice Act. That letter stated that there was a great disparity in this circuit in regard to the manner in which excess compensation claims under the statute had been considered in the past. Chief Judge Lay therefore concluded that all previous guidelines and standards promulgated by the Eighth Circuit should no longer be applicable to applications for fees under the Criminal Justice Act. That letter directed that the guidelines and standards set forth in his April 9, 1980 letter should be followed until further action by him or the Judicial Council of the Eighth Circuit. The guidelines and standards stated in Chief Judge Lay’s April 9, 1980 letter in regard to what may be considered a “complex” case have not changed since that letter was written.

Chief Judge Lay quoted Section 3006A(d)(3) in his April 9, 1980 letter and then stated, consistent with the guidelines of the Judicial Conference, that:

(a) The key words within this provision of the Act are “extended” and “complex”. Under either instance an attorney may request payment in excess of the maximum amount in order to provide “fair compensation”.
(b) The attorneys, in making claim for excess compensation shall be required in the future to set forth on their voucher the itemization of time and expense along with the statement as to why they feel the case was either “extended” or “complex”. (Emphasis added.)

Chief Judge Lay further stated that no case should be considered as an “extended” case unless it lasted beyond five days of trial. Chief Judge Lay then turned to the question of when a particular case could properly be certified as “complex”. In that regard it is stated that:

The only basis upon which a fee should be granted when trial time is less than five days is if counsel verifies that the case was “complex” and in such instance counsel shall set out the reasons why he feels it was complex. It may very well be that even on a plea of guilty without trial that a case could be “complex” if it involved extraordinary investigation or extraordinary briefing or preliminary motions, etc. A complex case, pending further definition, is one that will have to undergo individual evaluation and scrutiny by the district judge and the circuit judge. If the factual situation is complex or otherwise involved or if the legal issues are exceedingly difficult, then the court may make an evaluation of complexity on that basis. (Emphasis added.)

Chief Judge Lay’s letter directed attention to the opinion of Chief Judge David Bazelon in United States v. Thompson, supra, and quoted extensively from pages 884 and 885 of that decision. He then stated that:

In the event that an excess fee is requested by counsel and you feel that it should be reduced I think in each instance if you make the reduction or if I make the reduction counsel is entitled to an explanation as to why the fee is being reduced____ On excess fees you should consider the statute as to whether the amount is necessary due to the extended nature of the case or the complexity of the case____ If you do not feel that it is under the circumstances, ... then no excess fee should be awarded. In the event that you feel that it complies with the statute in order to require fair compensation I would appreciate a statement by you as the court as to whether or not you agree with counsel’s representation or any other comment that you might have in guiding me to make the approval.

This Court is thus under duty to apply the guidelines and standards promulgated by the Judicial Conference and those stated in Chief Judge Lay’s April 9, 1980 letter to the request made by appointed counsel in this case. In accordance with the direction of the Chief Judge’s letter that counsel is entitled to an explanation of why a certification will not be made, we now state the reasons for our refusal to certify.

III.

A.

Appointed counsel’s suggestions in support of his motion accurately stated that Glenn R. Jewett, together with Patricia K. Jewett, Donald A. Fineout, and Shelley K. Eck, was named as a defendant in each count of a 17-count indictment charging violations of 21 U.S.C. §§ 841, 843, and 846, and 18 U.S.C. § 2. Appointed counsel also stated that the four defendants had been the subject of a lengthy investigation which included electronic surveillance of their telephones, the installation of pen registers on their telephones, and physical surveillance. It was further stated that defendant Glenn R. Jewett was the subject of search warrants that required investigation and that it was thus necessary that appointed counsel review “hundreds of pages of electronic surveillance applications and orders, surveillance logs, and transcripts of intercepted conversation.”

Appointed counsel emphasized that “[approximately eleven pretrial motions were filed on behalf of Glenn R. Jewett, dealing with various issues including suppression of intercepted conversations, severance, bill of particulars, and disclosure of informants” and that “[ljengthy review of documentation and research of technical issues was deemed necessary by counsel to adequately represent his client.” Appointed counsel, in the concluding paragraph of his suggestions in support of his motion submitted that “this case is ‘complex’, and compensation in excess of the statutory guidelines is necessary to provide fair compensation.”

This Court was therefore requested to consider (1) “the number of defendants,” (2) “the complex nature of the crimes charged,” (3) “the Court ordered electronic surveillance and hundreds of pages of documents which Counsel must review,” and (4) “the novel issues of law and fact raised by pretrial motions, despite the fact that Defendant did not stand trial and entered a plea of guilty” to support a finding that this case was “complex” within the meaning of the Act.

Under the guidelines and standards stated in Chief Judge Lay’s letter, a case terminated by a plea of. guilty, as was this case, may be considered to be “complex” within the meaning of the Criminal Justice Act if, on the particular facts of the case, it involved “extraordinary investigation or extraordinary briefing.” Complexity may be said to be established “if the legal issues are exceedingly difficult.” (Emphasis added.) The Eighth Circuit guideline is, of course, consistent with the Judicial Conference guideline that the legal or factual issues of a particular case must be “unusual” and thus require the expenditure of more time and effort “than would be required in an average case.”

Appointed counsel’s reliance on the fact that this case involved four defendants as a factor that could be said to establish that this case is a “complex” case is untenable. Many of the usual and routine controlled substance cases prosecuted in this judicial district, particularly those that include a conspiracy count, involve at least four and, in some cases, substantially more than four defendants.

Appointed counsel’s conclusory statement in regard to the “complex nature of the crimes charged” is not supported by the record. The indictment in this case routinely charged a conspiracy to distribute a controlled substance, the distribution of a controlled substance on particular dates, and the use of a telephone in the facilitation of the alleged conspiracy at particular times, all in alleged violation of 21 U.S.C. §§ 846, 841(a)(1), and 848(b) and 18 U.S.C. § 2. Numerous cases of that nature involving multiple defendants are routinely processed in this Court. Nor does the fact that electronic surveillance was utilized during the investigation of this case make it “complex” within the meaning of the Act. The same thing is true in many of the usual and routine cases prosecuted in this judicial district.

The fact that counsel for all of the defendants needed to review a substantial amount of documentary evidence in regard to that electronic surveillance does not make this a “complex” case. All of that data was furnished defendants’ counsel under the government’s open file discovery policy. While review of that data entailed the expenditure of compensable time, the same thing is true of many other drug cases that are routinely processed in this Court.

Appointed counsel's contention that this case involved “novel issues of law and fact raised by pretrial motions” requires a bit more detailed discussion. The files and record in this case establish that this Court entered orders extending the time within which all defendants could file pretrial motions. We also entered an order that removed this case from the August 12, 1985 trial docket and set the case for trial on the criminal trial docket scheduled to commence September 16, 1985. The granting of the defendants’ unopposed motions for extensions of time did not establish that this case was a “complex” case.

For this Court’s July 12, 1985 Order removing the case from the August 12, 1985 trial docket made specific reference to the joint unopposed motion filed by defendants Glenn R. Jewett, Patricia K. Jewett, and Shelley G. Eck seeking that relief. We there noted the defendants’ joint motion alleged, among other things, that:

Defendants presently anticipate filing suppression motions regarding electronic surveillance, search and seizure of evidence from Defendants’ premises and persons, and statements made by Defendants to government agents. Defendants also anticipate pretrial motions concerning disclosure of confidential informants. All of these motions may well require evidentiary hearings prior to trial.

Twelve pretrial motions were thereafter filed in this case, ten on behalf of all three defendants. Appointed counsel also filed a single motion for a bill of particulars on behalf of defendant Glenn R. Jewett. Another single motion to sever was filed by appointed counsel on behalf of Patricia K. Jewett.

Examination of ten motions filed on behalf of all three defendants seems to indicate that five of the ten motions were prepared by appointed counsel for Glenn R. Jewett and that five were prepared by appointed counsel for Patricia K. Jewett.

This Court’s August 21, 1985 memorandum denying all motions filed stated that we believed it appropriate to note at the outset of that memorandum that “a substantial number of the motions are clearly without merit in light of the fact, ... that the above case is an open file discovery case.” Attention was there directed to Chief Magistrate Hamilton’s June 20, 1985 order entered in this case in which counsel were reminded that prior to filing any discovery motions, counsel should carefully review the omnibus hearing report and to take advantage of the voluntary discovery offered by the government. Chief Magistrate Hamilton’s June 20, 1985 order expressly stated that “it is not necessary for discovery motions to be filed when the Government affords ‘open file’ discovery.”

In spite of the fact this was an open file case, appointed counsel nevertheless filed a motion for bill of particulars and a motion for discovery. This Court’s August 21, 1985 memorandum denying all pretrial motions shows on its face that, contrary to representations made in the motion to take the case off the trial docket, no evidentiary hearings prior to trial were necessary for the disposition of any of those motions.

This Court’s August 21, 1985 memorandum further establishes that the only motion that could be said to have presented a substantial question was defendant’s motion to suppress the wire intercept conversations. That motion, however, was based solely on an alleged violation of 18 U.S.C. § 2517(5). Determination of that motion, however, did not require an evidentiary hearing. For there was no dispute about the factual circumstances in regard to the grounds upon which that motion was based. The motion papers and exhibits attached thereto provided all necessary information for the determination of the questions presented.

It cannot fairly be said that the Section 2517(5) question presented in that single motion was a “novel” question, as appointed counsel contended in his suggestions in support of his pending motion. Nor did that motion make this case an unusual case. While the question presented had not been ruled by the Eighth Circuit, the determination of that question required only the consideration of whether two cases, one decided by the Seventh Circuit and the other by the Second Circuit, supported the defendant’s argument or whether two more recent cases, one decided by the First Circuit and the other by the Eleventh Circuit, supported the government’s argument. This Court simply concluded that the Eighth Circuit would follow and apply the rationale of the more recent cases decided by the First and Eleventh Circuits and stated the reasons for that view on two and one-half pages of our memorandum.

We cannot find that the pretrial motion that presented that question of law made this case an unusual one that either required “extraordinary investigation” or “extraordinary briefing” within the meaning of the Act. Nor can we find that the legal issues presented in that motion or in any of the other pretrial motions signed by appointed counsel presented legal issues that were either “unusual” or “were exceedingly difficult” within the meaning of the guidelines and standards and the Act. Indeed, our August 21, 1985 memorandum shows that all twelve of the pretrial motions were summarily denied, excepting only the motion to suppress based on an alleged violation of 18 U.S.C. § 2517(5). We incorporate what we stated in our August 21, 1985 memorandum, copy of which is attached as Appendix A, as a part of this memorandum opinion by this reference.

Under the guidelines and criteria of the Judicial Conference we cannot find that this case was a case of unusual magnitude or importance. Nor can we find that the manner in which appointed counsel performed his duty demonstrated unusual knowledge, skill, efficiency or professionalism. We further find that there were no extraordinary pressures of time or any other factors that would support a certification above the maximum $2,000.00 provided by the Act for services rendered in the district court.

Section 3006A(d)(l) provides that the hourly rates stated in that section may be paid for in court and out-of-court time “reasonably expended” by appointed counsel. We agree with Chief Judge Bazelon’s statement in United States v. Thompson, supra, 361 F.Supp. at 884, n. 1, that “the statutory requirement that out-of-court time be ‘reasonably expended’ raises a difficult issue.” We believe this is particularly true in a case terminated by a defendant’s plea of guilty. For in such a case the amount of in court time expended is minimal; in this case, for example, counsel spent only three hours in court in connection with the defendant’s plea of guilty and subsequent imposition of sentence.

Chief Judge Bazelon stated the difficult question as follows: “Is professional time ‘reasonably expended’ when an attorney does legal research which one already skilled in the criminal law would not need to do”? And, citing judicial wisdom that has stood the test of time for over two hundred and fifty years, he added that: “ ‘[n]o attorney is bound to know all the law; God forbid that it should be imagined that an attorney or a counsel, or even a judge is bound to know all the law,’ ” quoting from Montriou v. Jefferys, 112 Eng. Rep. 51 (N.P.1825). Id. at 884.

Judge Bazelon pointed out that even an attorney who keeps abreast of developments in the pertinent area of criminal law must nevertheless conduct research and preparation in the particular case in which he has been appointed. The problem that Chief Judge Bazelon found to be “exceedingly difficult” was whether the out-of-court time devoted to study and research of elementary matters may be said to be “reasonably expended” within the meaning of the Act.

The briefs filed in this case in connection with the pretrial motions reflect that counsel did expend a great deal of out-of-court time in the preparation of those briefs. In light of the fact this case was not, in our view, an unusual case, and in light of the fact that this case was an open file discovery case, it is now apparent that it is indeed difficult to conclude that this case may properly be certified as a “complex” case within the meaning of the Act. We are further satisfied that many, if not most, cases that are terminated by guilty pleas will be found to be usual rather than complex cases.

Our refusal to certify this case as complex is not intended as any reflection of the services rendered by Mr. Partee. We simply find and conclude that his motion for certification must be denied for the reasons we have stated above.

B.

It is appropriate to add that appointed counsel for Patricia K. Jewett did not seek a certification that an amount in excess of $2,000.00 was necessary for fair compensation within the meaning of the Act. We recognize, of course, that Glenn R. Jewett was named in all 17 counts of the indictment as contrasted to the fact that Patricia K. Jewett was named in a substantially smaller number of counts. It cannot, however, be overlooked that all four defendants were named in Count I which alleged a conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. It was alleged that the conspiracy existed from September 20, 1984 to December 21, 1984. Each of the substantive counts which followed alleged particular transactions between those two dates, consistent with the pattern usually and routinely followed in the prosecution of drug cases in this judicial district. The government’s decision that this case should be an open file discovery case facilitated appointed counsel’s investigation in regard to whether the government could prove that defendant Glenn R. Jewett, in fact, made or aided and abetted the making of the various sales of LSD and the various telephone calls concerning LSD on the particular dates alleged in both the conspiracy count and the various substantive counts in the indictment.

Appointed counsel for Glenn R. Jewett and that defendant concluded as a result of the government’s open file discovery policy that the government could prove its case beyond reasonable doubt. Glenn R. Jewett accordingly tendered and this Court accepted that defendant’s plea of guilty to all counts of the indictment in which he was named. Acceptance of defendants Patricia K. Jewett’s and Shelley G. Eck’s pleas of guilty to all counts of the indictment in which they were named and the imposition of sentences on all three defendants terminated what we find to be a usual and routine controlled substance case.

We have approved the application of counsel appointed to represent Patricia K. Jewett in the requésted maximum amount of $2,000.00 plus expenses. We believe it is appropriate that appointed counsel for Glenn R. Jewett be awarded the same maximum $2,000.00 plus expenses in this case.

IV.

A final word should be added. In United States v. Bailey, 343 F.Supp. 76 (W.D.Mo.1971), then Chief Judge Becker reduced appointed counsel’s claim for compensation under the Criminal Justice Act after examining a letter from counsel explaining the basis for his claimed compensation. Chief Judge Becker concluded that the claim should be substantially reduced for the reason that an allowance of the amount claimed by appointed counsel in that case “would be out of line with allowances in similar cases” in this district. We agree that disparity in the awards of compensation to appointed counsel should be avoided.

Between January 1, 1985 and November 15, 1985, the various district judges in the Western District of Missouri allowed compensation for 65 appointed counsel pursuant to 18 U.S.C. § 3006A. All those awards were made after the 1984 amendment doubling the hourly rates was effective. Of those 65 cases, only eight were certified to the Chief Judge of the Eighth Circuit for amounts in excess of the maximum $2,000.00 district court statutory limit. And in only three of those cases did appointed counsel request certification of an amount in excess of $3,000.00, which is appointed counsel’s request in this case.

Two of those three cases involved lengthy trials. The third case, like this case, was terminated by guilty pleas by two defendants on the eve of trial in a broad-scale racketeering case. That case, however, unlike this case, involved various pretrial motions which required several extensive evidentiary hearings before the court. None of the other eight cases allowing excess compensation were cases in which pleas of guilty were accepted.

Given this background of certifications for allowances made in this judicial district for compensation in excess of the $2,000.00 district court maximum allowable by the Act, it would be inconsistent with those cases should this Court certify and award fees to appointed counsel in this case in excess of the $2,000.00 maximum limit provided in Section 3006A(d)(2).

V.

Accordingly, it is

ORDERED that appointed counsel Ronald E. Partee’s request for certification of an amount in excess of $2,000.00 made in his motion for approval of excess compensation under the Criminal Justice Act should be and is hereby denied. This Court will accordingly amend and approve the application for fees filed by appointed counsel Ronald E. Partee to provide for a total allowed amount of $2,000.00 plus expenses of $148.89.

APPENDIX A

MEMORANDUM AND ORDERS DENYING VARIOUS PRETRIAL MOTIONS

This case pends on twelve pretrial motions, ten of which were filed on behalf of defendants Glenn R. Jewett, Patricia K. Jewett, and Shelly G. Eck. A single motion was filed on behalf of Glenn R. Jewett and another motion was filed on behalf of Patricia K. Jewett. All ten of the motions filed on behalf of Shelly G. Eck were mooted by this Court’s acceptance of her pleas of guilty on August 15, 1985 to each count of the indictment in which that defendant was named.

We have considered all of the pending motions, the suggestions in support and the suggestions in opposition. We find and conclude that all twelve motions should be denied. As will be apparent a substantial number of the motions are clearly without merit in light of the fact, as the government stated at the omnibus hearing proceeding conducted on June 20, 1985, that the above case is an open file discovery case.

The last paragraph of Chief Magistrate Hamilton’s June 20, 1985 Order entered with respect to the filing of pretrial motions stated the following:

Counsel are reminded that in the order filed November 26, 1968, providing for an omnibus hearing in each criminal action, the Court en banc stated that the purposes of the omnibus hearing procedure are to encourage voluntary disclosure and to eliminate written motion practice except where absolutely necessary. Prior to filing any discovery motion, counsel should (1) carefully review the omnibus hearing report to ascertain the extent of the discovery ordered during the hearing and (2) take full advantage of the voluntary discovery offered by the Government. It is not necessary for discovery motions to be filed when the Government affords “open file” discovery. United States v. Johnson, 751 F.2d 291, 295 (8 Cir. Dec. 31, 1984, No. 84-1195). (Emphasis in the order).

In United States v. Johnson, 751 F.2d 291, 295 (8th Cir.1984), the Court of Appeals responded to a defendant’s charge of ineffective assistance of counsel based on an alleged failure to file discovery motions by stating that “as to discovery motions, it was unnecessary for Johnson’s attorney to make any in light of the open file policy of the United States Attorney.”

In spite of the fact that this is an open discovery case, many of the pending motions were based on the untenable notion that the government was somehow withholding information and that it has not, in fact, offered to make available to each of the defendants much more information than that which defendants are able to obtain in districts in which the United States Attorney’s office refuses to adopt and follow an open file discovery policy in any pending case.

We turn now to each of the pending motions.

I.

Motion for Bill of Particulars

The pending motion for bill of particulars was filed only on behalf of defendant Glenn R. Jewett. The government’s response in opposition to that motion establishes that the government, pursuant to its open file discovery policy, has voluntarily provided all defense counsel with access to its entire investigative report, with copies of all exhibits attached thereto, copies of all electronic tape recordings, copies of the pen register, and search warrant materials. It is also established that the government has consented to the entry of an order providing for the disclosure of all grand jury transcripts before trial.

Under these circumstances, it is obvious that the full discovery afforded obviates the need for any bill of particulars. It is therefore

ORDERED that defendant Glenn R. Jewett’s motion for bill of particulars should be and is hereby denied.

II.

Defendant Patricia Jewett’s Motion to Sever

It is clear from the face of the indictment that Patricia Jewett has been joined as a proper defendant in accordance with Rule 8 of the Federal Rules of Criminal Procedure. No appropriate showing has been made for relief under Rule 14 of the Federal Rules of Criminal Procedure. The conclusive and speculative statements of counsel make no such showing and defendant’s suggestion that some sort of pretrial hearing should be conducted to permit Patricia Jewett to adduce unidentified evidence which would somehow justify the entry of an order to sever is unsupported by any legal authority. Should circumstances develop at trial which might require consideration of a Rule 14 motion, such motion may be made and ruled at that time. For that reason the pending motion will be denied without prejudice.

Accordingly, it is

ORDERED that defendant Patricia Jewett’s motion to sever should be and the same is hereby denied without prejudice.

III.

Motion to Dismiss Based on Illegal Conduct of Government Agents

This motion and all of the remaining motions were filed on behalf of defendants Glenn R. Jewett, Patricia K. Jewett, and Shelly G. Eck. As above stated, this and all succeeding motions are denied in regard to Glenn R. Jewett and Patricia K. Jewett who have entered and are presently standing on pleas of not guilty.

The pending motion characterizes the government’s conduct as illegal and outrageous. Nothing stated in either defendants’ motion or their supporting memorandum even attempts to specify any conduct about which defendants complaint. Defendants’ suggestion that an evidentiary pretrial hearing should be convened is untenable under the circumstances.

Accordingly, it is

ORDERED that defendants’, motion to dismiss based on illegal conduct of government agents should be and the same is hereby denied.

IV.

Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency or Preferential Treatment

The motion papers reflect that the Chief United States Magistrate has already ordered the disclosure of any and all promises made to any witness at the June 20, 1985 omnibus hearing. See Omnibus Hearing Report, p. 11. Defendants have made no showing why the relief granted by Chief Magistrate Hamilton is not sufficient under the circumstances.

Accordingly, it is

ORDERED that defendants’ motion to compel disclosure of existence and substance of promises of immunity, leniency or preferential treatment should be and the same is hereby denied.

V.

Motion for Hearing to Determine Appropriate Presentation of Tape Recordings and/or Transcripts

The motion papers establish that the government is familiar with the standards of the Eighth Circuit in regard to the admissibility and use of electronic tapes and transcripts of those tapes. Those papers also establish that defense counsel have been furnished with copies of all tapes and transcripts and have not suggested that any tape is inaudible or that the transcript may be inaccurate.

We will assume that counsel in this case, as counsel in many cases in which tapes and transcripts have been used, will be able to agree upon the manner in which the evidence of the tapes will be submitted to the jury. If counsel are unable to reach agreement, a circumstance which we do not anticipate, defendants or the government should file a timely motion well in advance of trial, for a Rule 17.1 pretrial conference at which the matter will be appropriately considered. Defendants’ prayer for an order directing a hearing is unsupported by the citation of any legal authorities and, in any event, is premature.

Accordingly, it is

ORDERED that defendant’s motion for hearing to determine appropriate presentation of tape recordings and/or transcripts should be and the same is hereby denied.

VI.

Motion to Produce the Grand Jury Testimony

The motion papers establish that the Assistant United States Attorney assigned the above case advised counsel for defendant Glenn R. Jewett that the government did not object to the disclosure of the transcript of all grand jury testimony and that he suggested that defense counsel prepare a proposed order for this Court’s signature. The government properly objects to any photocopying of the transcripts.

In light of the consent of the government, it is

ORDERED that counsel promptly agree upon the form of a court order authorizing defendants’ counsel to inspect the transcripts of all grand jury proceedings conducted in connection with the above case and to present the same for this Court’s approval within three (3) days of this order.

VII.

Motion to Identify Informants and Other Discovery

The motion papers establish that it was agreed at the omnibus hearing that one of the two confidential informants would be disclosed. It is further apparent that a second confidential informant provided information in support of the State of Kansas wiretap. The government objects to the disclosure of the second informant.

The government, however, attached the affidavit filed in support of the State of Kansas wiretap application and further stated that all DEA reports dealing with all disclosed informants have already been produced by the government for inspection by defendants’ counsel. That limited disclosure is sufficient under the circumstances.

The Assistant United States Attorney has also stated that he does not know of any wiretapping that may have been conducted without court authorization and that he has contacted the DEA and has confirmed that such agency knows of no wiretapping that has not been revealed. Defendants’ lengthy memorandum of law which cited numerous familiar cases does not support a finding that defendants are entitled to any additional relief.

Accordingly, it is

ORDERED that defendants’ motion to identify informants and other discovery should be and the same is hereby denied.

VIII.

Motion for Discovery

Careful study of defendants’ memorandum of points and authorities in support of their pending motion does not suggest that defendants have not been furnished a complete record of all affidavits, applications, and orders authorizing all wiretap and other electronic surveillance. The motion papers establish that defendants’ counsel have not registered any complaint to the Assistant United States Attorney in regard to the data furnished pursuant to the orders entered in that regard by Chief Magistrate Hamilton. See Omnibus Hearing Report, p. 4.

Accordingly, it is

ORDERED that defendants’ motion for discovery should be and the same is hereby denied.

IX.

Motion to Compel Government to Provide Defendants with Witness Lists Thirty Days Prior to Trial

The motion papers establish that the usual order requiring the government to supply its witness list ten days in advance of trial was entered by Chief Magistrate Hamilton at the omnibus hearing. See Omnibus Hearing Report, p. 6.

This case is presently set for trial to commence September 16, 1985. In light of the Assistant United States Attorney’s explicit statement that he would continue to cooperate with counsel for the defendants on an informal basis in regard to furnishing information concerning the government’s witnesses prior to the mandatory ten-day period, and in light of the fact that defendants do not even allege any exceptional circumstances that would warrant the time date requested, it is

ORDERED that defendants’ motion to compel the government to provide defendants with witness lists 30 days prior to trial should be and the same is hereby denied.

X.

Motion In Limine for Pretrial Order Regarding the Admissibility of Tapes and Federal Rules of Evidence 801(d)(2)(E) Statements

Defendants contend that a pretrial hearing must be convened pursuant to Rule 104 of the Federal Rules of Evidence to determine the admissibility of any co-conspirator declarations which may be offered in evidence pursuant to Rule 801(d)(2)(E). United States v. Reda, 765 F.2d 715 (8th Cir.1985), is the latest discussion of the questions presented by defendants’ motion. See particularly Part IV of that opinion, p. 720 to 722, in regard to the standards applicable in this circuit and the procedures available in dealing with the question presented. Further, defendants’ request to resolve “foundation problems” is premature in that no such “problems” are identified in either the motion or memorandum filed in support thereof.

This Court is not advised of any reason why procedures routinely agreed upon by counsel in the identification of any foundation problems may not be followed in this case. As above stated, this case is set for trial on September 16, 1985. Counsel are advised that this case, unless otherwise disposed of, will be transferred from this division of the Court to an active judge of this Court for actual trial.

Because different district judges follow different procedures in regard to statements of an alleged co-conspirator, the pending motion will be denied without prejudice so that the same may be ruled by the judge to whom the case is eventually assigned for trial.

Counsel are advised that if they are not able to reach full agreement in regard to procedures to be followed, the questions presented is another question that might be considered at any Rule 17.1 pretrial conference which may be convened either upon motion of a party or by the judge who will try the case. Counsel are admonished to arrange their preparation for trial and any request for a Rule 17.1 pretrial conference in a manner that will present the question well in advance of trial.

Accordingly, it is

ORDERED that defendants’ motion in limine for pretrial order regarding the admissibility of tapes and Federal Rules of Evidence 801(d)(2)(E) statements should be and the same is hereby denied without prejudice.

XI.

Motion to Dismiss Indictment

The pending motion moves to dismiss the indictment on the alleged ground that the same is multiplicitous. That motion is without merit.

Accordingly, it is

ORDERED that defendants’ motion to dismiss indictment should be and the same is hereby denied.

XII.

Defendants’ Motion to Suppress All Wire Intercept Conversations and Evidence Unlawfully Derived Therefrom Obtained by the Government in Violation of Title 18, Section 2517(5)

Defendants’ motion generally seeks the suppression of all wiretap conversations obtained by the government in alleged violation of Title 18 U.S.C. § 2517(5) and all evidence derived as a result of an alleged impermissible use of such statements. Specifically, defendants’ motion is directed to (1) the proceedings before the Magistrate in obtaining search warrants, (2) the proceedings before the federal grand jury which returned the indictment, and (3) the use of the fruits of the Kansas wiretap at trial.

The portion of the motion directed to the proceedings before a Magistrate to obtain a search warrant is clearly without merit. See United States v. Vento, 533 F.2d 838 (3rd Cir.1976), and United States v. Johnson, 539 F.2d 181 (D.C.Cir.1976).

A different question, however, is presented in regard to the government’s use of the Kansas wiretap before the grand jury and the use of evidence derived from the Kansas wiretap at trial.

There is no apparent dispute about the factual circumstances. The moving papers and the exhibits attached thereto establish that the Kansas wiretap was obtained under the Kansas wiretap statute for the purpose of gathering information concerning the possession of LSD with intent to sell and the sale of LSD and the offense of conspiracy to commit those offenses as defined by Kansas law.

The conversations intercepted pursuant to the Kansas wiretap were presented to Chief Magistrate Hamilton on December 21, 1984 and were later presented to the federal grand jury to obtain the indictment in the present case. The federal indictment alleges violation of federal law prohibiting the possession with intent to sell LSD, the sale of LSD, and a conspiracy to commit those federal offenses. The government concedes that it neither sought nor received any judicial approval under Section 2517(5). The government states that it did not believe that prior approval was necessary.

Defendants rely primarily on United States v. Brodson, 528 F.2d 214 (7th Cir.1975) , and the majority opinion in United States v. Marion, 535 F.2d 697 (2d Cir.1976) . The government on the other hand, relies on the more recent cases of United States v. Smith, 726 F.2d 852 (1st Cir.1984), and United States v. Watchmaker, 761 F.2d 1459 (11th Cir.1985).

While the Eighth Circuit has not passed on the question, we are satisfied that the Eighth Circuit will follow and apply the rationale of the First Circuit in Smith and the Eleventh Circuit in Watchmaker. Both those circuits determined that a less rigid rule than that applied in Brodson and followed in Marion should be applied to Section 2517(5). Those circuits concluded that Section 2517(5) must be construed in light of the intent of Congress that a wiretap authorization order to investigate one offense should not be used as a subterfuge to acquire evidence of an entirely different offense.

No question of subterfuge is presented in this case. For it is clear that the Kansas LSD offenses for which the Kansas wiretap was authorized are substantially the same as the federal LSD offenses alleged in the indictment involved in this case. Cf. United States v. Moore, 513 F.2d 485 (D.C.1975) (“similar offense” exception to the District of Columbia analogue to Section 2517(5)). See also United States v. Campagnuolo, 556 F.2d 1209 (5th Cir.1977), an earlier Fifth Circuit case relied upon by the Eleventh Circuit in Watchmaker, and United States v. Southard, 700 F.2d 1 (1st Cir.1983), relied upon by the First Circuit in Smith.

We believe, however, that it should be added that it is more than a little difficult for this Court to understand why the federal government did not seek and obtain a Section 2517(5) order from the Kansas State court before making any use of the information obtained pursuant to the Kansas wiretap. Judge Kaufman stated in his majority opinion in Marion that “[w]e would hope, therefore, in view of the clear dictates of our ruling in this case, that in the future law enforcement officials will as a matter of prudence seek to secure explicit approval of such incidental interceptions.” And the First Circuit stated in Smith that “[w]hen a state wiretap yields evidence of federal crimes not specified in the warrant, the best way for the investigating officers to insure that the requirements of § 2715(5) are met is for them to obtain judicial authorization to use that evidence.”

Until the Supreme Court of the United States definitively decides the question, it would seem to be clear that law enforcement officers should follow the admonitions quoted in the cases just cited.

For the reasons stated, it is

ORDERED that the defendants’ motion to suppress all wire intercept conversations and evidence unlawfully derived therefrom obtained by the government in violation of Title 18 Section 2517(5) should be and the same is hereby denied.

John W. Oliver

John W. Oliver

Senior Judge

Kansas City, Missouri

August 21, 1985

      . When the Criminal Justice Act was enacted in 1964 the rates were $15.00 for in court time, $10.00 for out-of-court time, with a district court maximum of $500.00. The Congress granted no increases from 1970 to 1984 when, as stated in the text, the hourly rates and the maximum allowable by the district court were doubled.

      . The report shows that the Judicial Conference of the United States had directed the attention of Congress to a recent report of the General Accounting Office which stated that the "real value [of the fees currently paid to court appointed attorneys under the CJA] has obviously decreased substantially because of inflation.”

      . The legislative history to which reference was made by Chief Judge Bazelon in United States v. Thompson expressly stated that when Congress provided for compensation for appointed counsel, it "was intended to ease the financial burden on the attorney, who offers his services to a defendant as a professional public duty” and that the "level of fees established under the act was intended to offer some but not full compensation for the appointed attorney and to provide adequate defense services for his client.” See 2 U.S.Code and Administrative News, 91st Cong. 2d Sess. 1970, pp. 3982, 3984.

      . As recently as December 3, 1985, Chief Judge Lay circulated a pamphlet to all federal judges in this circuit which contained practical suggestions in regard to the processing of Criminal Justice Act vouchers relating to applications for excess fees under the Act. Paragraph (2) on page 1 of that pamphlet reiterates in summary form the applicable standard that a case must involve "extraordinary investigation and briefing, and items of that nature” before it may properly be considered to be "complex” within the meaning of the Act.

      . Chief Judge Lay in a letter dated September 10, 1981 directed that the requirement that a trial “last beyond five days of trial” should be changed so that, effective September 1, 1981, that period of time should be reduced to three days.

      . All counsel appointed in this Court under the Criminal Justice Act are furnished the form entitled “Information for Counsel Appointed under the Criminal Justice Act”. Part III-D on page 3 of that form is a direct paraphrase of the portion of Chief Judge Lay’s April 9, 1980 letter quoted in the text.

      . Patricia K. Jewett was represented by appointed counsel. Shelley K. Eck was represented by employed counsel. Donald A. Fineout is a fugitive. Both the Jewetts and Shelley K. Eck pleaded guilty and all three defendants have been sentenced.

      . We have considered the government’s response to appointed counsel’s motion which stated generally that the Assistant United States Attorney was familiar with the "complexity" of the case and would not oppose appointed counsel's request for certification. The question of whether a case may be considered “complex” within the meaning of the Act and the applicable guidelines and standards must be determined by this Court on the particular facts of the case and not on the basis of conclusory statements made either by appointed counsel or on the basis of like conclusory statements made by government counsel.

      . Compare the Eighth Circuit's adoption of a less rigid rule in regard to a district court's power and jurisdiction to authorize the installation of a pen register in Application of United States for Order, Etc., 546 F.2d 243 (8th Cir. 1976), with this Court’s view of the same question as stated in Application of United States, 407 F.Supp. 398 (W.D.Mo.1976), in which we refused to enter the pen register orders requested by the government.


source: Caselaw Access Project

author: ASPEN, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Donald PODOLSKY, Defendant.
    No. 85 CR 007.
    United States District Court, N.D. Illinois, E.D.
    Dec. 18, 1985.
    Suzanne B. Conlon, Asst. U.S. Atty., Chicago, 111., for plaintiff.
    Patrick A. Tuite, Patrick A. Tuite, Ltd., Chicago, 111., for defendant.
   MEMORANDUM ORDER

ASPEN, District Judge:

For the reasons that follow, defendant Podolsky’s motion for bond pending appeal of his conviction is granted.

Under the Bail Reform Act of 1984, Podolsky must be detained unless the court finds (1) by clear and convincing evidence that he is not likely to flee or endanger anyone if released, (2) that he is not appealing to delay matters, and (3) “that the appeal raises a substantial question of law or fact likely to result in reversal or an order for a new trial.” 18 U.S.C. § 3143(b). The parties do not really dispute points (1) and (2), and neither do we. On the basis of the record and of our own observations of Mr. Podolsky, we think it clear that he is not likely to flee or harm someone if released pending appeal. And the appeal is not being filed for purposes of delay.

The Seventh Circuit has split the third factor into two questions. First, we must decide whether the appeal presents “a substantial question of law or fact.” United States v. Bilanzich, 771 F.2d 292, 298 (7th Cir.1985). This means the issue must be a “close” one or one “that very well could be decided the other way.” Id. (Citations omitted.) Second, we must decide whether an order of a new trial or a reversal of the conviction is more likely than not, assuming that the appellate court decides the close question in the defendant’s favor. Id. Thus, the alleged error must be “integral to the merits,” rather than harmless or unprejudicial. Id. at 299.

Podolsky satisfies both of these criteria. Both the jurisdictional and conspiracy questions are “close,” and “could well be decided the other way.” Of course, we stand by our previous opinion on the issues, and although we did not agree with Podolsky’s conspiracy and jurisdictional arguments, they nonetheless were substantial and also merit consideration by the Circuit Court. As for the second criterion, it is obvious that if Podolsky prevails on the jurisdictional issue, reversal of the conviction and dismissal are certain. Similarly, reversal is likely if Podolsky wins his conspiracy argument.

Accordingly, Podolsky’s motion for bond pending appeal is granted. The bond previously set pending trial shall be posted as the appeal bond. The reporting date of June 24, 1986, which we previously set, is hereby vacated and continued generally pending outcome of the appeal. It is so ordered.


author: PATRICK F. KELLY, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Phillip B. MILLER, Defendant.
    No. 85-10088-01.
    United States District Court, D. Kansas.
    Dec. 19, 1985.

      Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., for plaintiff.
    David W. Russell, Kansas City, Mo., for defendant.
   MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

On November 20, 1985, a grand jury indicted defendant Phillip B. Miller with one count of engaging in a continuing criminal enterprise, 21 U.S.C. § 848; nine counts of using a telephone to facilitate commission of a felony, 21 U.S.C. § 843(b); and one count of possessing 4.7 grams of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1). (Rec. 1.) Miller was arrested, and appeared before Magistrate John Wooley for initial proceedings. On November 26, 1985, Magistrate Wooley held a detention hearing as provided in the Bail Reform Act of 1984, 18 U.S.C. § 3142. The prosecutor sought Miller’s detention not on the ground defendant might flee before trial, but because he presented a danger to the community. Magistrate Wooley agreed and ordered Miller detained without bond pending trial. (Rec. 12.)

Defendant filed a motion for revocation or amendment of the detention order, contending Magistrate Wooley improperly interpreted and applied the provisions of the Bail Reform Act. (Rec. 8, 13.) Following a hearing on December 4,1985, during which both parties reviewed the evidence and argued their positions, the Court agreed with defendant and concluded the government failed to establish by clear and convincing evidence no condition or combination of conditions will reasonably assure the safety of the community. The magistrate’s detention order is revoked, and Miller is released on bond, subject to the conditions set forth at the conclusion of this order.

The Law

Under the Bail Reform Act of 1966, the dangerousness of a criminal defendant and corresponding risk to the safety of the community could not be considered in determining whether to release the defendant prior to trial. 18 U.S.C. § 3146(a) (1982) required pretrial release of every defendant other than those charged with an offense punishable by death, unless the judicial officer concluded “such a release will not reasonably assure the appearance of the person as required.” The legislative history made clear the limited inquiry permissible under the statute:

This legislation does not deal with the problem of preventive detention of the accused because of the possibility that his liberty might endanger the public, either because of the possibility of the commission of further acts of violence by the accused during the pretrial period, or because of the fact that he is at large [sic] might result in the intimidation of witnesses or the destruction of evidence. It must be remembered that under American criminal jurisprudence pretrial bail may not be used as a device to protect society from the possible commission of additional crimes by the accused.

Report of the House Committee, H.R.Rep. No. 1541, 89th Cong., 2d Sess. 5-6 (1966), 1966 U.S.Code Cong. & Adm.News, 2293, 2296. Yet even in the face of the statutory prohibition against considering “dangerousness,” it was doubted “a defendant’s powerful disposition to incur further criminal liabilities could be ignored” at. the pretrial release stage. United States v. Melville, 306 F.Supp. 124, 126-27 (S.D.N.Y.1969). Other courts were less circumspect, concluding notwithstanding the statute it was within their inherent powers to consider whether a defendant posed á danger to the public, and to deny or revoke bond on that basis. See, e.g., U.S. v. Wind, 527 F.2d 672, 674-75 (6th Cir.1975), and U.S. v. Markowski, 582 F.Supp. 1276, 1279 (N.D.Ind.1984).

Reacting to the absence of any statutory authority permitting consideration of community safety, Congress enacted the Bail Reform Act of 1984. In light of the courts’ willingness to entertain those considerations notwithstanding the statutory provisions, Congress perhaps overstated the problem when it said:

The constraints of the Bail Reform Act [of 1966] fail to grant the courts the authority to impose conditions of release geared toward assuring community safety, or the authority to deny release to those defendants who pose an especially grave risk to the safety of the community. If a court believes that a defendant poses such a danger, it faces a dilemma — either it can release the defendant prior to trial despite these fears, or it can find a reason, such as risk of flight, to detain the defendant (usually by imposing high money bond). In the Committee’s view, it is intolerable that the law denies judges the tools to make honest and appropriate decisions regarding the release of such defendants.

S.Rep. No. 225, 98th Cong., 1st Sess. 5, reprinted in 1984 U.S.Code Cong. & Adm. News, 3182, 3188 (emphasis added; hereafter S.Rep. at-). Under the new act, judicial officers are required to consider both the risk of flight and the safety of any other person and the community before ordering a defendant’s pretrial release. In certain cases a rebuttable presumption arises that “no condition or combination of conditions [of release] will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e).

Rather than quote at length the legislative history of the new act, the Court finds much merit in the following analysis by Chief Judge Lay of the Eighth Circuit Court of Appeals:

The major differences between the superseded Bail Reform Act and the 1984 Act pretrial release provisions relevant to this case are the prohibition against using inordinately high financial conditions to detain defendants, and the authorization to consider in determining release conditions or detention the danger a defendant may pose to the community or certain individuals. The two changes eliminate the judicial practice of employing high bail to detain defendants considered dangerous and substitute a procedure allowing the judicial officer openly to consider the threat a defendant may pose. The passage of the pretrial detention provision of the 1981/. Act did not, however, signal a congressional intent to incarcerate wholesale the category of accused persons awaiting trial. Rather, Congress was demonstrating its concern about “a small but identifiable group of particularly dangerous defendants as to whom neither the impostion [sic] of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons.” S.Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in 1984 Code Cong. & Ad.News at 3189. The legislative history stresses that “[t]he decision to provide for pretrial detention is in no way a derogation of the importance of the defendant’s interest in remaining at liberty prior to trial. * * * It is anticipated that [pretrial release] mil continue to be appropriate for the majority of Federal defendants. Id., at 7, 12 reprinted in 1984 U.S.Code Cong. & Ad.News at 3189 (emphasis added).
Consistent with the intent expressed in the legislative history, the statutory scheme of 18 U.S.C. § 3142 continues to favor release over pretrial detention. Section 3142 provides four alternatives from which the judicial officer must choose: (1) release on personal recognizance or unsecured appearance bond, or (2) release subject to certain conditions, or (3) temporary detention to permit, among other things, revocation of conditional release, or (4) pretrial detention. The judicial officer most often will be deciding between the first and the second alternatives. The statutorily mandated progression from one choice to the next is critical: a judicial officer cannot determine that a detention hearing and the possible imposition of pretrial detention is appropriate merely by determining that release on personal recognizance will not “reasonably assure” the defendant’s appearance at trial or “will endanger” the community. The judicial officer must also consider whether one of the codified conditions or any combination of the conditions will “reasonably assure” the defendant’s appearance and the safety of the community. The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention.
... Congress envisioned the pretrial detention of only a fraction of accused individuals awaiting trial____ The structure of the statute mandates every form of release be considered before detention may be imposed.

US. v. Orta, 760 F.2d 887, 890-92 (8th Cir.1985) (emphasis both added and in original).

18 U.S.C. § 3142(e) and (f) set forth the findings and procedures required for an order of detention. Subsection (e) provides that the judicial officer is to order the person detained if, after a hearing pursuant to subsection (f), he finds no conditions of release will reasonably assure the appearance of the person as required and the safety of any other person and the community. The facts underlying a finding of dangerousness must, under subsection (f), be supported by clear and convincing evidence.

The judicial officer must consider the factors specified in 18 U.S.C. § 3142(g) in determining whether any form of conditional release will reasonably assure the appearance of the defendant and the safety of the community. Those factors are: the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the prosecution’s evidence; defendant’s history and personal characteristics, including the existence and nature of any prior criminal record; and the nature and seriousness of the danger to the community posed by defendant’s release.

The offense and offender characteristics that will support the required finding for pretrial detention under subsection (e) will vary considerably in each case. Thus [Congress] has, for the most part, refrained from specifying what kinds of information are a sufficient basis for the denial of release, and has chosen to leave the resolution of this question to the sound judgment of the courts acting on a case-by-case basis. However, the [act] does describe two sets of circumstances under which a strong probability arises that no form of conditional release will be adequate.
The first of these arises when it is determined that a person charged with a seriously dangerous offense has in the past been convicted of committing another serious crime while on pretrial release____
The second rebuttable presumption arises in cases in which the defendant is charged with felonies punishable by ten years or more of imprisonment described in 21 U.S.C. 841, 952(a), 953(a), 955 and 959 which cover opiate substances and offenses of the same gravity involving non-opiate controlled substances, or an offense under 18 U.S.C. 924(c) which covers use of a firearm to commit a felony.

S.Rep. at 18-19, 1984 U.S.Code Cong. & Adm.News, 3201, 3202. Consideration of the subsection (g) factors is required whether or not the rebuttable presumption against release arises in a particular case. S.Rep. at 23.

The second rebuttable presumption against release arises whenever the judicial officer finds probable cause to believe defendant committed one of the specified offenses. 18 U.S.C. § 3142(e). The presence of an indictment charging such an offense, returned by a duly constituted grand jury, conclusively establishes the existence of probable cause for purposes of triggering the rebuttable presumption. U.S. v. Contreras, 776 F.2d 51, 55 (2d Cir.1985). A defendant’s contention he “is not the sort of drug offender (i.e., one with important foreign connections) that Congress had in mind when it created the presumption” does not preclude its application where defendant fits within its terms, but that argument goes to the weight properly accorded the presumption. U.S. v. Jessup, 757 F.2d 378, 387 (1st Cir.1985).

There is slight disagreement among courts regarding the effect of the rebut-table presumption once it arises. In ordering defendant Miller’s detention, Magistrate Wooley relied on U.S. v. Aiello, 598 F.Supp. 740 (S.D.N.Y.1984), holding that in a narcotics case where the presumption is triggered a heavy burden falls on defendant to show specific facts rebutting the presumption:

Clearly the legislative intent was that the burden would fall on the defendants to rebut the ultimate facts presumed under the Act. Once a charge is made that a defendant is guilty of a “grave” narcotics violation, and in the absence of information supplied by the defendant tending to rebut the presumption, the government has sustained its burden of showing a “danger to society” or “risk of flight.”

Aiello, 598 F.Supp. at 744.

But that holding is a minority if not an isolated view. By requiring clear and convincing evidence supporting the finding no conditions of release will reasonably assure the safety of the community, the statute itself clearly implies the government retains the ultimate burden of persuasion. 18 U.S.C. § 3142(f). The overwhelming number of courts reaching the issue have so held, concluding the rebuttable presumption merely shifts to defendant a burden of production. Even the Second Circuit Court of Appeals rejected the analytical underpinnings of Aiello, holding the government labors under the burden of persuasion whether or not the rebuttable presumption applies, bearing the burden to prove by clear and convincing evidence defendant is dangerous. U.S. v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985). The Court in U.S. v. Moore, 607 F.Supp. 489 (N.D.Cal.1985), explored the Aiello reasoning and found the legislative history relied on does not directly apply to situations where the government seeks to detain a defendant as a flight risk or danger to the community pursuant to a finding of probable cause defendant committed a serious narcotics offense. In addition, the Court noted, Congress affirmatively placed on a defendant the burden of persuasion in post-conviction release proceedings pending sentence or appeal, 18 U.S.C. § 3143(a); had Congress intended the pretrial detention provisions to operate similarly it would have so stated.

A further problem presented in Aiello is that the court reads the “clear and convincing” requirement out of the statute altogether, relying instead on the government’s showing at the probable cause portion of the determination. This holding places too great a strain on the link set up by the rebuttable presumption. The probable cause determination merely establishes the presumption. The important consideration in determining whether a defendant should be detained without bail pending trial is not the strength of the evidence that defendant committed the narcotics offense but rather the strength of evidence regarding flight risk or danger to the community.
... [T]he government may not rest solely on the rebuttable presumption to support its motion to detain a defendant pending trial. Evidence that defendant committed the narcotics offense with which he is charged, even if very compelling, cannot by itself satisfy the requirement of § 3142(f) that a determination “that no condition or combination of conditions will reasonably assure the safety of any other person and the community” be supported by clear and convincing evidence. Indeed, to find otherwise would also violate the directive of § 3142(g), which provides that certain factors — including the history and characteristics of the defendant — be considered by the court in determining whether a particular defendant be detained.

Moore, 607 F.Supp. at 498 (emphasis added). Accord, U.S. v. Jessup, 757 F.2d 378, 381 (1st Cir.1985); U.S. v. Alatishe, 768 F.2d 364, 371 (D.C.Cir.1985): and U.S. v. Colombo, 616 F.Supp. 780, 785 (E.D.N.Y.1985), rev’d on other grounds, 777 F.2d 96 (2d Cir.1985).

The criticism and overwhelming rejection of Aiello have stripped that case of any precedential value. The magistrate’s reliance thereon, imposing on defendant Miller the burden of persuasion regarding the ultimate issue of danger to the community, was fundamental error. Consistent with the holdings of virtually every other court which has addressed the issue, this Court concludes that even where the rebuttable presumption of § 3142(e) is triggered by probable cause to believe defendant committed one of the specified offenses, the presumption imposes on defendant only a burden of producing evidence, while the government remains under the burden of persuading the court by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person and the community.

The burden of production imposed on a defendant is “to offer some credible evidence contrary to the statutory presumption.” U.S. v. Alatishe, 768 F.2d 364, 371 (D.C.Cir.1985). The rebuttable presumption contained in § 3142(e) is not a “bursting bubble” which disappears upon production of defendant’s evidence:

In order to “rebut” the presumption, the defendant must produce some evidence; and the magistrate or judge should then still keep in mind the fact that Congress has found that offenders, as a general rule, pose special risks of flight. The magistrate or judge should incorporate that fact and finding among the other special factors that Congress has told him to weigh when making his bail decision. See § 3142(g)____
Since the presumption is but one factor among many, its continued consideration does not impose a burden of persuasion upon the defendant. And, since Congress seeks only consideration of the general drug offender/flight problem, the magistrate or judge may still conclude that what is true in general is not true in the particular case before him. He is free to do so, and to release the defendant, as long as the defendant has presented some evidence and the magistrate or judge has evaluated all of the evidence with Congress’s view of the general problem in mind.

U.S. v. Jessup, 757 F.2d 378, 384 (1st Cir.1985) (emphasis in original). Where a defendant makes no attempt to offer any evidence contrary to the presumption, he may be detained upon the finding no conditions of release could reasonably assure the appearance of the defendant and the safety of the community. Alatishe, 768 F.2d at 371. But where a defendant does present evidence, even if it is insufficient to rebut the statutory presumption, “the clear and convincing evidence requirement imposes a heavy burden of proof upon the Government which must be met before the defendant’s liberty may be curtailed by pretrial detention.” U.S. v. Jones, 614 F.Supp. 96, 98 (E.D.Pa.1985).

Before exploring the contours of the clear and convincing evidence requirement, the Court notes Congress’ concept of “dangerousness” under the act:

The concept of defendant dangerousness is described throughout this chapter by the term “safety of any other person or the community.” The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence____ The Committee also emphasizes that the risk a defendant will continue to engage in drug trafficking constitutes a danger to the “safety of any other person or the community.”

S.Rep. at 12-13, 1984 U.S.Code Cong. & Adm.News, 3195. Unquestionably, narcotics trading is recognized to be conduct of the most qualitatively harmful to society. U.S. v. DiMauro, 614 F.Supp. 461 (D.Me.1985).

[I]t is clear that the harm to society caused by narcotics trafficking is encompassed within Congress’ definition of “danger”____ Yet, the degree of that danger remains critical under § 3142(g). To determine that degree and decide if a defendant should be detained, a judicial officer must weigh [the] factors [specified in subsection (g) ].

U.S. v. Leon, 766 F.2d 77, 81 (2d Cir.1985) (emphasis added). Thus the fact a defendant is indicted for a serious narcotics violation, although important, is only one of numerous factors to be considered in the detention determination.

Turning to the clear and convincing standard of proof, Congress said:

Because of the importance of the interests of the defendant which are implicated in a pretrial detention hearing, the Committee has specifically provided that the facts on which the judicial officer bases a finding that no form of conditional release is adequate reasonably to assure the safety of any other person and the community, must be supported by clear and convincing evidence. This provision emphasizes the requirement that there be an evidentiary basis for the facts that lead the judicial officer to conclude that a pretrial detention is necessary. ... [Thus], if the dangerous nature of the current offense is to be a basis of detention, then there should be evidence of the specific elements or circumstances of the offense, such as possession or use of a weapon or threats to a witness, that tend to indicate that the defendant will pose a danger to the safety of the community if released.

S.Rep. at 22, 1984 U.S.Code Cong. & Adm. News, 3205. The Second Circuit Court of Appeals has determined the clear and convincing evidence required means

something more than “preponderance of the evidence,” and something less than “beyond a reasonable doubt.” ... To find danger to the community under this standard of proof requires that the evidence support such a conclusion with a high degree of certainty.

U.S. v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985) (emphasis added). The factors detailed in § 3142(g) are to be considered in determining whether the government has proved by clear and convincing evidence defendant is one of the rare cases warranting detention. U.S. v. Leon, 766 F.2d 77, 81 (2d Cir.1985). Cases applying the clear and convincing standard of proof in the context of specific allegations of “dangerousness” will be analyzed after our review of the parties’ evidence in this case.

The following observations concerning the Bail Reform Act of 1966 are even more compelling under the new act: “While the principles are quickly stated, their implementation calls for a compendious judgment upon an array of factors, none of which is neatly quantifiable, and all of which entail disconcerting elements of uncertainty, insufficient knowledge, and risk____ The complexities soon multiply in all but the simplest cases.” U.S. v. Melville, 306 F.Supp. 124, 126 (S.D.N.Y.1969).

The Case

Before turning to the complexities of this case, we note the standards governing our review. A district court review of a magistrate’s order is de novo, including the authority to conduct a detention hearing. U.S. v. Maull, 773 F.2d 1479, 1481 (8th Cir.1985) (en banc). When making the determinations required under the statute, the judicial officer can rely on matters presented at the detention hearing which would not be considered as competent, admissible evidence under traditional trial standards. U.S. v. Fortna, 769 F.2d 243 (5th Cir.1985). The district court should fully reconsider the magistrate’s denial of bail and, in ruling on a motion for revocation or amendment, should not simply defer to the judgment of the magistrate but should reach its own independent conclusion on the merits. U.S. v. Leon, 766 F.2d 77, 80 (2d Cir.1985), and cases cited therein. The question whether this “independent determination” standard requires a second full evidentiary hearing is not decisive where, as in the present case, the parties stipulate the record before the magistrate is the evidence to be considered by the district court. U.S. v. Colombo, 616 F.Supp. 780, 783 (E.D.N.Y.1985), rev’d on other grounds, 777 F.2d 96 (2d Cir.1985).

Defendant Miller does not question the constitutionality of the rebuttable presumption against release, or of the legislation in general. See U.S. v. Jessup, 757 F.2d 378 (1st Cir.1985) (rebuttable presumption does not deprive a defendant of his liberty without due process in violation of the Fifth Amendment); and U.S. v. Moore, 607 F.Supp. 489 (N.D.Cal.1985) (Bail Reform Act of 1984 upheld against Fifth and Eighth Amendment challenges). For its part, the government does not contend Miller should be detained because of the risk of flight before trial. See U.S. v. Medina, 775 F.2d 1398 (11th Cir.1985). Nor does the government argue Miller presents a danger to the community by virtue of any tendencies toward physical violence. See U.S. v. Leon, 766 F.2d 77 (2d Cir.1985) (defendant made threats to prospective witnesses and had a propensity to carry firearm); U.S. v. Delker, 757 F.2d 1390 (3d Cir.1985) (defendant threatened and intimidated prospective witnesses and had prior convictions involving violent offenses); U.S. v. Askari, 608 F.Supp. 1045 (E.D.Pa.1985) [defendant had lengthy criminal record including several convictions for violent crimes, and conduct charged (possession of firearm by convicted felon) occurred while defendant on probation]; and U.S. v. Moore, 607 F.Supp. 489 (N.D.Cal.1985) (informant testified he feared reprisal by defendant). Rather, the precise questions raised are, given probable cause to believe Miller committed the offenses charged, and the statutory rebuttable presumption that no conditions of release will reasonably assure the safety of the community, first, whether defendant has rebutted the presumption, and second, whether the government has shown by clear and convincing evidence Miller represents a danger to the community by virtue of the risk he will resume his criminal activities in narcotics trafficking.

At the detention hearing before the magistrate, the government called three witnesses, each of whom testified to having purchased cocaine from Miller at his home, in amounts ranging from one gram to one-half ounce, at various times over a period of years. Gerald Johnson, from 1980 through 1984, made increasingly frequent purchases from Miller. His visits to Miller’s home were arranged over the telephone, and he paid Miller $300.00 for each one-eighth ounce purchase, for a total of approximately $2,500.00. Brian Schreck purchased from one-quarter to one-half ounce of cocaine from Miller weekly, in the same manner, for redistribution to others. He paid Miller a total of $27,000.00 to $31,-000.00, and testified Miller was not employed after 1980. Randy Chapman testified he purchased cocaine from Miller for resale to buyers from Kansas City. Purchases were made at Miller’s home following arrangements over the telephone. He and Miller at one point discussed delivering one kilogram of cocaine to the Kansas City buyers, but decided against it because of logistical problems. The government also presented a transcript of the grand jury testimony of Richard Roberts, who testified Miller introduced he and his wife to cocaine use in 1983. Roberts’ purchases, of one to two grams three or four times weekly, were made at defendant’s home in the same manner as the others. Roberts estimated his cocaine expenses over time totaled approximately $10,000.00.

Defendant’s rebuttal evidence consisted first of cross-examination of the government’s witnesses. Gerald Johnson acknowledged he was testifying in exchange for immunity from prosecution. He also admitted purchasing cocaine from the other witnesses, Chapman and Schreck, during the time period in question. Johnson acknowledged having no “problems” with Miller, that Miller did not have an abusive nature or disposition, and that Johnson had no fear of defendant. On cross-examination, both Schreck and Chapman echoed the latter testimony. Chapman also admitted he was testifying in exchange for a reduced charge. Of course, Miller was denied any opportunity to cross-examine Richard Roberts, whose grand jury testimony must be considered in that light.

Miller also called as a defense witness Dr. Donald Lewellan, defendant’s dentist and brother-in-law. They had been acquainted for 14 years, and Lewellan was of the opinion Miller would not flee, he was not violent, and he posed no danger to the community. He admitted on cross-examination by the government, however, that he was unaware of Miller’s activities giving rise to the indictment. Defendant also presented the affidavit of Charles T. Aikens, a prominent Wichita businessman with personal knowledge of Miller’s substantial personal and financial ties to the community. Aikens was also of the opinion defendant would not flee, nor did he pose a danger to the safety of others.

Defendant Miller took the stand and testified he was a lifelong resident of Wichita, with no prior convictions and no tendency toward violence. He does not possess a passport and stands ready to abide by any and all conditions of release the Court deems appropriate. On cross-examination, Miller admitted he is not employed, and lives with his ex-wife, who is employed.

Magistrate Wooley found probable cause to believe defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. § 801 et seq. (Rec. 12.) He continued:

I find that the credible testimony and information submitted at the hearing establishes by clear and convincing evidence that Defendant sold Cocaine on numerous occasions (at least 50 sales over a period of 2lh years) in 1983-84 and 85; Defendant was aware purchasers were selling and/or distributing to others; that Defendant offered no evidence contrary thereto; Defendant has not been gainfully employed since 1980; Many sales were made in Defendant’s home in Eastborough; Defendant is a major drug dealer in this community; that Defendant’s distribution of drugs constitutes a danger to society and Defendant has failed to rebut the presumption that no condition or combination of conditions will reasonably assure the safety of the community (See U.S.A. v. Aiello, 598 F.Supp. 740, 744 (D.C., So.D. of N.Y. — 1984)).

Id. The fundamental legal error of the magistrate’s reliance on Aiello, shifting to defendant the burden of persuasion, has already been discussed.

Regarding the factual question of clear and convincing evidence, the Court finds some guidance by reviewing cases which addressed the concept of danger to the community arising from the risk of recidivism. Under the 1966 Bail Reform Act a defendant’s conduct in smuggling 864 kilograms of cocaine into the country while released on bond was found to pose a substantial danger to the community in U.S. v. Markowski, 582 F.Supp. 1276 (N.D.Ind.1984). The court concluded detention without bail was warranted because it was “a rare case of extreme and unusual circumstances:” the criminal conduct occurred while defendant was released on initial bond; the $200,000.00 court deposit used to secure defendant’s release came from criminal activity; defendant had access to, dealt with, and received extremely large sums of cash relating to a drug smuggling operation (the cocaine involved was valued at $27 million); and defendant had a Panamanian bank account into which funds derived from illegal activity were placed. Markowski, id. at 1277-78. Similarly, in U.S. v. Stanley, 449 F.Supp. 467 (N.D.Cal.1978), aff'd 601 F.2d 380 (9th Cir.1979), a substantial danger to the community was found in defendant’s continued participation in a massive smuggling operation on both coasts while on release pending appeal of his conspiracy, importation, and possession of marijuana convictions.

Under the Bail Reform Act of 1984, the Second Circuit Court of Appeals has most recently ordered the pretrial detention of a defendant on grounds of dangerousness where he was charged with 16 crimes, including stealing controlled substances, possession with intent to distribute those controlled substances, engaging in a continuing criminal enterprise, transportation of stolen goods in interstate commerce, extortion, crimes of violence to further unlawful activity, and conspiring to obstruct, delay and affect commerce by robbery. U.S. v. Colombo, 616 F.Supp. 780 (E.D.N.Y.1985). Detention was warranted in U.S. v. Volksen, 766 F.2d 190 (5th Cir.1985), because the evidence established defendant’s participation in numerous drug and unlawful firearms transactions, as well as her statements she would flee to Canada rather than go to prison. In U.S. v. Fortna, 769 F.2d 243 (5th Cir.1985), defendant was detained where unrebutted evidence showed massive amounts of cocaine and money were involved, defendant had substantial foreign contacts and the ability to clandestinely fly to South America, he was the head of a sophisticated criminal enterprise, and had been engaged in other significant drug trafficking and importation. Many detentions have been ordered on the basis of prior convictions and/or criminal activity occurring while the defendant is released on bail. See U.S. v. Coleman, 777 F.2d 888 (3d Cir.1985) (defendant had a substantial history of criminal conduct); U.S. v. Rawls, 620 F.Supp. 1358 (E.D.Pa.1985) (defendant previously pled guilty and no contest to charges of distribution and had received both parole terms and prison sentences); U.S. v. DiMauro, 614 F.Supp. 461 (D.Me. 1985) (defendant denied release pending appeal where evidence showed that notwithstanding prior convictions for possessing cocaine he had been involved at some level of significance in an ongoing course of narcotics trafficking); and U.S. v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984), rev’d on other grounds 759 F.2d 202 (2d Cir.1985) (district court initially detained defendant under Bail Reform Act of 1984 where defendant was charged with conspiracy to violate federal narcotics laws, distribution and possession with intent to distribute heroin, and engaging in continuing criminal enterprise, and conduct charged occurred during defendant’s parole term for prior narcotics offense; Court of Appeals determined instead case governed by 1966 Act). Lastly, in the Aiello case relied on by both the government and Magistrate Wooley, defendant was detained where he had been engaged in wholesaling narcotic drugs at a high level, he had substantial foreign ties with current plans to take trips abroad, he had access to proceeds of criminal activity amounting to $905,000.00, and there was as well what the district court concluded to be a risk of danger to the community. 598 F.Supp. 740 (S.D.N.Y.1984). Of course, the conclusion in that case must be considered in light of the erroneous burden of persuasion placed on defendant Aiello. Cf. U.S. v. Chimurenga, 760 F.2d 400 (2d Cir.1985) (no clear error in releasing defendant where he had no previous criminal record and his brothers posted $500,000 bond); and U.S. v. Jones, 614 F.Supp. 96 (E.D.Pa.1985) (rejecting government’s contention defendant, charged with three counts distributing heroin, three counts distributing cocaine, and one count use of telephone to facilitate distribution, was a “major narcotics trafficker;” held, government produced “no evidence” nor persuasively argued there were no conditions of release assuring the safety of the community).

This review of other cases is not to be understood as implying the question of release or detention of a particular defendant is to be resolved on any basis other than the evidence before the Court. It does serve, however, to emphasize the types of cases and specific factors courts have looked for in ordering detention.

In the present case the United States Attorney emphasizes, above all else, the evidence supporting the charge defendant engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848. He contends the series of transactions by defendant Miller poses a danger to the community, citing Aiello, supra, and U.S. v. Hawkins, 617 F.2d 59 (5th Cir.1980), a case not decided under the 1984 Bail Reform Act. Significantly, the Hawkins court noted:

The government urges that the single fact that [defendant] has engaged in one conspiracy, by itself, is sufficient basis for a conclusion that the risk of repetition is a danger to the community that supports denial for bail, relying on U.S. v. Miranda, 442 F.Supp. 786 (S.D.Fla.1977), rev’d on other grounds 593 F.2d 590 (5th Cir.1979). This argument misstates the holding in Miranda, and the district judge in the present case did not hold that one swallow makes a summer; rather, he concluded from the surrounding circumstances that the risk of continuing drug activity by [defendant] was so high that he is a danger to the community. The record before us does not convince us that we should reach a different conclusion.

617 F.2d at 61. The evidence in Hawkins included the fact defendant’s minimal earnings from legitimate enterprises did not account for the substantial resources available and the lavish lifestyle he maintained; the cocaine in question cost $1.3 million; defendant claimed an interest in seized funds amounting to $132,000.00; there was testimony defendant had engaged in cocaine dealings before the conspiracy charged; and defendant made statements of owning 20,000 pounds of marijuana in Colombia.

To the extent the government argues, and the magistrate found, the single fact there is probable cause to believe defendant was engaged in a continuing criminal enterprise supports the inference he will return to his criminal activities and should therefore be detained, this Court emphatically rejects that notion. Nothing in the legislative history supports that idea, and to hold otherwise would flout the express legislative mandate of § 3142(g). Indeed, the Hawkins case on which the government relies stands for nothing if not the principle that the particular charges against a defendant are but one of numerous factors to be considered before ordering detention. See also U.S. v. Moore, supra, at 518-19.

Thus, the question is not simply whether Miller should be detained because the charges against him support the inference he will resume criminal activities if released. Rather, as previously stated, given probable cause to believe Miller committed those crimes triggering the rebuttable presumption against release, the questions are whether defendant has met his burden of production rebutting the presumption, and whether the government has produced clear and convincing evidence supporting a finding of danger to the community. The distinction is not without meaning under the Bail Reform Act of 1984.

The defendant produced evidence, and the government concedes, he is not a risk of flight or danger to the community by virtue of physical violence. He has no prior criminal record, the crimes charged being his first offenses. He also produced evidence of good character, the belief of others he is not a danger to the community in any sense. Further, there was evidence of Miller’s substantial personal and financial ties to the community. Certainly, Miller has not foregone the opportunity to present evidence. His burden of producing some credible evidence contrary to the presumption is not an onerous one, and the Court feels his evidence is adequate. At this point the rebutted presumption does not “disappear,” but remains as a general factual consideration to be kept in mind as we review the prosecution’s evidence regarding dangerousness. See U.S. v. Jessup, supra at 519.

Parenthetically, the Court notes that even were it to find defendant’s evidence inadequate to rebut the statutory-presumption, that would not relieve the government of its burden of persuading, by clear and convincing evidence, there is a risk of recidivism against which no conditions of release can reasonably assure the safety of others. § 3142(f); U.S. v. Jones, supra at 519-20.

There is convincing evidence to support the belief defendant was engaged in a continuing criminal enterprise and that he used the telephone to facilitate commission of a felony; there is also evidence he was in possession of cocaine with intent to distribute. While that evidence establishes probable cause to believe defendant committed the crimes charged, it does little to establish a risk of recidivism other than the degree to which that inference arises from the statutory presumption. In this case, as previously noted, defendant has rebutted that presumption, and it is therefore entitled to minimal weight. Beyond that, the evidence is less than clear and convincing there is, first, a significant risk of recidivism, and second, that no conditions of release can reasonably assure the safety of others against the degree of risk that might exist. The government argued, but presented only minimal evidence, defendant was at the top of a scheme of distribution in which he controlled the actions of others. The offenses charged are defendant’s first. Conspicuous by its absence is any testimony the prosecution witnesses believed Miller would resume his criminal activities if released. Three of those four witnesses testified they were no longer using cocaine. The United States Attorney argues there is reason to believe defendant knew of the criminal investigation into his activities as early as August 1985, three months prior to the grand jury indictment. Defendant cogently responds the record is barren of any evidence showing criminal activity during that period.

Turning to consideration of the factors specified in § 3142(g), even assuming the first and second (nature of the offense charged and weight of the prosecution’s evidence) are resolved in the government’s favor, the third and fourth are not. Defendant’s history and personal characteristics, and the nature and seriousness of the danger posed by his release, do not support the government’s motion for detention. Under the totality of the circumstances, the Court cannot say this is one of the “rare and extreme” cases in which defendant poses “an especially grave risk” of danger to others because of the possibility he may resume his criminal activities. On this record that risk is not significant, and conditions of release can be imposed to reasonably assure the safety of the community.

IT IS ACCORDINGLY ORDERED this 4th day of December, 1985, the magistrate’s detention order is revoked and defendant Miller is released subject to the following conditions:

1. He will comport himself in strict obedience to all federal, state and local laws, refraining from any pursuits constituting criminal activity thereunder. Defendant is also admonished not to commit any offense under 18 U.S.C. §§ 1503 (influencing or injuring an officer of the court or juror), 1512 (tampering with a witness, victim or informant), and 1513 (retaliating against a witness, victim or informant).
2. Defendant will execute a bond in the amount of Fifty Thousand Dollars ($50,000.00), either secured by the undertakings of approved solvent sureties or by the deposit of an equal amount of cash.
3. Defendant will reside with his former wife, consistent with her agreement as expressed to the Court, at their East-borough address, and will remain there as a resident throughout his release period unless he provides in writing a compelling reason for a change, the probation office approves such a change, and defendant notifies his attorney in writing of the change.
4. Defendant will report his whereabouts daily to the probation office at such intervals as that office shall desire, as often as it deems necessary.
5. Defendant is subject to an 8:00 P.M. curfew each evening, seven days a week, unless excused in advance by the probation office.
6. Defendant is permitted to operate a motor vehicle only as is necessary, and he is not to be at or near any of the airports or bus terminals of Sedgwick County.
7. He is not to leave Sedgwick County, Kansas, for any reason without securing prior permission from this Court, except for travel to Kansas City, Missouri, in order to meet with his attorney, which travel maybe undertaken only after notifying the probation office.
8. Defendant is not to have any contact, by telephone, in person, or otherwise, with any of the persons identified as previously having dealt in controlled substances with him. These persons include both the government witnesses who appeared and testified, and others they may have named. The only contact or communication permitted is that undertaken through and in the presence of Miller’s defense attorney in the course of normal trial preparation.
9. Defendant is to refrain from possessing a firearm, destructive device or other dangerous weapon, licensed or otherwise.
10. Defendant is to refrain from any and all use of alcohol and narcotic drugs or controlled substances as defined in § 102 of the Controlled Substances Act, 21 U.S.C. § 802, without a prescription by a licensed medical practitioner.
11. Defendant will report for, submit to, and complete any and all urinalysis tests which the probation office may require either on a scheduled or random basis.
12. Upon being released, defendant must make all appearances on time. He must keep in touch with his attorney at all times and give the attorney a telephone number where he can be reached, because notices of future proceedings may be given to the attorney and not directly to defendant.

Defendant must abide by all conditions of release unless he first obtains written permission from this Court. If defendant violates any condition of his release, or if he is late for a court appearance, a warrant for his arrest will issue immediately. Following arrest, the terms and conditions of any further release will be redetermined; bail may be revoked and defendant remanded to jail.

If defendant fails to appear before any court or judicial officer as required, his bond may be forfeited and an additional criminal charge, bail jumping, may be instituted against him. In the context of this case, the penalty for such an offense is a fine of not more than $25,000.00, or a .consecutive 10-year prison term, or both. See 21 U.S.C. § 3146(b)(1)(A).