bail at the February 12 hearing, neither side presented any additional evidence.
After considering, de novo, all of the relevant evidence, we find that Robinson should be detained without bond. Section 3142(e) of the Bail Reform Act, 18 U.S.C. § 3141 et seq., provides that if "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community," a criminal defendant should be detained pending trial. Our determination that Robinson should be detained is based on the clear and convincing evidence that no condition or combination of conditions will guarantee the safety of persons and the community.
A defendant charged with a violation of the Controlled Substances Act faces a rebuttable presumption that he is dangerous. United States v. Dominguez, 783 F.2d 702, 706 (7th Cir. 1986). This presumption is rebutted if a defendant can produce some evidence that he will not endanger the community if released, Id. at 707. If the defendant can produce evidence sufficient to rebut this presumption, the burden shifts to the government to prove dangerousness by clear and convincing evidence. United States v. Savides, 658 F. Supp. 1399, 1406 (N.D. Ill. 1987). However, the initial presumption of dangerousness "remains in the case as an evidentiary finding militating against release, to be weighed along with the other factors listed in § 3142(g)." United States v. Dominguez, 783 F.2d at 707.
In the present case, there is a rebuttable presumption of dangerousness because Robinson is charged with a violation of the Controlled Substances Act. We find that Robinson has produced evidence to rebut this presumption through the report of Pretrial Services Officer James Tibensky recommending that Robinson be released, and the character references which were attached to this report. However, the government has sustained its burden of proving dangerousness by clear and convincing evidence.
We find that Robinson's recent conviction of a serious crime involving the obstruction of justice
and the charges in the current indictment and in United States v. Robinson, No. 89 CR 907, presently awaiting trial before Judge George M. Marovich, constitute clear and convincing evidence that he is dangerous. Robinson was convicted in South Carolina of being an accessory after the fact in an attempted murder, a crime which necessarily involves the obstruction of justice. This conviction was based on evidence that Robinson had assisted an individual in eluding law enforcement authorities following the attempted murder of a witness to another murder. In the indictment before this Court, Robinson is charged with four additional attempts to obstruct justice, all of which occurred while he was on bond in the South Carolina charges. These charges include the solicitation of murder, attempting to pay a witness to leave the country, and providing money to enable a suspect to avoid arrest. There has been a finding of probable cause as to each of these charges.
The current charges, the charges before Judge Marovich, and the past conviction are clear and convincing evidence that Robinson represents a threat to the safety of potential witnesses and the community at large.
Robinson argues that his due process rights may be violated due to the length of time he will be incarcerated pending trial. However, prior to setting a date for trial, "a determination that the length of determination is impermissible, both as a statutory and constitutional matter, is premature." United States v. Portes, 786 F.2d 758, 768 (7th Cir. 1985) quoting United States v. Colombo, 777 F.2d 96, 100 (2d Cir. 1985). Obviously, this issue may be revisited at a later date.
After considering de novo all of the evidence presented by the parties, we agree with Magistrate Bucklo that there is clear and convincing evidence that Robinson represents a danger to individuals and the community, and that no condition or combination of conditions would remove this danger. Accordingly, we deny the motion to reconsider the order detaining Robinson without bond. It is so ordered.
Dated February 20, 1990