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UNITED STATES v. BENNETT

March 5, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
RONALD W. BENNETT, MARK C. WAGNER, MICHAEL E. HODGES, JOHN RICHARD SCHMIDT, MICHAEL A. DEPPER, and JOHN A. HUDSON, Defendants



The opinion of the court was delivered by: STIEHL

 WILLIAM D. STIEHL, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on defendant Mark C. Wagner's Motion to be Admitted to Bail. The defendant was ordered detained by United States Magistrate Gerald B. Cohn on January 8, 1990. In his January 8th order, the magistrate found that probable cause triggered a rebuttable presumption for detention under 18 U.S.C. sec. 3142(e), and that the defendant had failed to rebut the presumption. The magistrate further found that no condition or combination of conditions existed that would reasonably assure the appearance of the defendant as required and the safety of any other person and the community.

 The Court held a de novo hearing on March 1, 1990, and took the matter under advisement. The defendant is charged in a multi-count indictment with conspiracy to distribute in excess of 5 kilograms of cocaine, a Schedule II Narcotic Controlled Substance, in violation of 21 U.S.C. sec. 841(a)(1) and 846, and distribution of cocaine, in violation of 28 U.S.C. sec. 841(a)(1).

 18 U.S.C. sec. 3142(e) provides, in pertinent part:

 
(e) Detention. -- If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that 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, such judicial officer shall order the detention of the person before trial. . . .
 
. . . .
 
Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), section 1 of the Act of September 15, 1980 (21 U.S.C. 955a), or an offense under section 924(c) of title 18 of the United States Code.

 18 U.S.C. sec. 3142(e).

 FINDINGS OF FACT

 The Court takes judicial notice of the indictment and the transcript of the detention hearing before the magistrate. At the de novo hearing, the government offered sufficient evidence to establish probable cause that the defendant has committed an offense in violation of the Controlled Substances Act. If convicted on all counts as charged, the defendant, who is 31 years old, faces a mandatory minimum sentence of ten years without parole and a maximum sentence of life without parole.

 Evidence was adduced at the hearing that the defendant was arrested on January 4, 1990. At the de novo hearing, the Court heard the testimony of Special Agent Edward Delmore, a Metropolitan Enforcement Group (MEG) Unit undercover narcotics agent. Special Agent Delmore testified that while acting in his undercover role, he purchased various amounts of cocaine from the defendant on at least four (4) occasions. The government introduced an October 17, 1989 tape recorded conversation between Agent Delmore and the defendant in which the defendant stated that he had sold eight kilos of cocaine between January and October of 1989.

 In addition, Agent Delmore testified that Wagner resisted arrest and that the assistance of an additional officer was needed to effect the handcuffing of the defendant. While having his handcuffs loosened before being placed in the police car, the defendant attempted to flee from the officers. After being successfully secured in the police car, the defendant threatened Agent Delmore. Specifically, the defendant told agent Delmore "I'm going to get you; you're dead." Agent Delmore testified that he took this threat seriously.

 A later search of the defendant's residence resulted in the seizure of several packets of cocaine; two semi-automatic weapons, one of which was loaded; an electronic portable scale; drug paraphenalia, including two cocaine smoking pipes; and, a portable police scanner.

 The defendant has six to seven prior misdemeanor convictions, including a drug related, cannabis, conviction.

 The defendant offered evidence as to his risk of flight, community ties and social stability. The defendant was born in Cahokia and has resided there throughout his life. He has maintained a residence in Cahokia with his ex-wife, Donna Pearman, and their son.

 The defendant has submitted eight form affidavits from various friends in support of his motion for pre-trial release. On examination by the government, one of defendant's affiants, Darryl Malvin, testified that he was unaware of the requirements under the law for admission to bail, although that statement was a part of his affidavit. In addition, the defendant's parents testified on his behalf as did the Reverend Leroy Marset, who has become acquainted with defendant since his detention.

 The defendant attempted to show that the threat made to Agent Delmore was made in the heat of the moment and that he did not intend to carry it out. The Court, however, treats threats to kill law enforcement officials very seriously, ...


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