United States District Court, N.D. Illinois, Eastern Division
December 8, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: JOHN DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Defendant, Joseph Bleka, was arrested on February 10, 2004,
charged with drug offenses in connection with his actions with
the Campos drug trafficking organization. According to the
indictment, the Defendant allowed the Campos drug traffickers to
unload their cocaine shipments at his warehouse. Following his
appearance before the Magistrate Judge, the Defendant was
released on electronic home monitoring and a $250,000 bond
secured by his home. As a condition of his pretrial release, he
was allowed to leave home to operate his business, J.B. Land
The Defendant went to trial beginning on October 12, 2005.
Before, and at trial, the Defendant fully admitted his actions in
connection with the Campos organization but raised the
affirmative defense of coercion. On November 2, 2005, the
Defendant was found guilty of conspiracy to possess and
distribute cocaine, as well as other possession and attempted
distribution offenses. The maximum sentence for which the
Defendant is eligible is over ten years. Following the verdict,
the Government moved to have the Defendant immediately confined
pursuant to 18 U.S.C. § 3143(a)(2). The Defendant objected. The
Court ordered Defendant to be immediately detained, pursuant to
18 U.S.C. § 3143(a). The Court granted the Defendant leave to file a Motion
for Presentence Release. The Defendant filed a motion setting
forth personal and legal reasons, which, he argued, justified the
Defendant's release pursuant to 18 U.S.C. § 1345(c). The
Government filed its response, again objecting to the Defendant's
request for presentence release. For the foregoing reasons, the
Defendant's Motion for Presentence Release is granted.
The Bail Reform Act, as amended, sets forth the procedures by
which a judicial officer determines whether a recently convicted
person may be released pending sentencing. See
18 U.S.C. §§ 3143(a), 3145(c). Under Section 3143(a)(2), defendants, like
Bleka, who are convicted of drug crimes with a maximum sentence
of ten years or more must be detained, unless there is a finding
that: (1) there is a substantial likelihood that a motion for
acquittal or new trial will be granted, or that the government
recommends that no sentence of imprisonment be imposed; and (2)
by clear and convincing evidence, the defendant is not likely to
flee or pose a danger to the community. 18 U.S.C § 3143(a)(2). It
can not be found that is a substantial likelihood that a motion
for acquittal or new trial. The Government does not recommend the
Defendant's release. Therefore, presentence release is not
available pursuant to Section 3143(a)(2).
Notwithstanding these proscriptions, a defendant subject to
detention under Section 3143(a)(2) may be released if he meets
the requirements of Section 3145(c). That section provides that:
"[a] person subject to detention pursuant to section 3143(a)(2)
. . ., and who meets the conditions of release set forth in
section 3143(a)(1) . . ., may be ordered released, under appropriate conditions, by the judicial officer, if it is
clearly shown that there are exceptional reasons why such
person's detention would not be appropriate." 18 U.S.C. § 3145(c)
(emphasis added). Section 3143(a)(1) requires that "the judicial
officer find by clear and convincing evidence that the person
is not likely to flee or pose a danger to the safety of any other
person or the community if released." 18 U.S.C. § 3143(a)(1).
Therefore, to warrant release under Section 3145(c), two
requirements must be satisfied. First, the Court must find, by
clear and convincing evidence, that the Defendant is not likely
to flee or pose a danger to the safety of any other person or the
community if released. Second, this Court must find exceptional
reasons why his detention would not be appropriate.
Defendant is a first time offender. He complied with all
conditions of his pre-trial release. Mr. Bleka's wife, son,
daughter, sister, brother and mother all reside in Lemont,
Illinois. He, his wife, and son reside in the family home which
secures the existing $250,000 bond. There is no evidence that he
is a danger to others, other than the fact that he was convicted
of the drug offenses. Further, Defendant's Pretrial Services
Monitoring Officer agrees that the Defendant's continued release
pending execution of his sentence is appropriate. As a result,
this Court finds, by clear and convincing evidence, in accordance
with 18 U.S.C. § 3143(a)(1) that the Defendant is not likely to
flee or pose a danger to the safety of any other person or the
community if released prior to sentencing, subject to the terms
and conditions of pretrial release and to the additional
conditions set out below.
It must then be considered if there are exceptional reasons why
the Defendant's detention would not be appropriate, under
18 U.S.C. § 3145(c). In order to make this determination, "a case-by-case evaluation is essential" to decide if the
Defendant's situation presents "a unique combination of
circumstances giving rise to situations that are out of the
ordinary." United States v. Herrera-Soto, 961 F.2d 645, 647
(7th Cir. 1992) ("Herrera-Soto").
In making this determination, "[c]ourts granting release have
often relied upon a combination of personal factors (e.g.,
employment, ties to the community, performance on pre-trial
release, medical conditions) and legal factors (e.g., the
potential length of the sentence and the possibility of downward
departure at sentencing)." United States v. Kaquatosh,
252 F. Supp.2d 775, 778 (E.D. Wis. 2003) (Kaquatosh). "A substantial
question of law sufficient to satisfy the criteria for release
required of any convicted person, in a remarkable or unique
factual context, may render detention pending appeal
inappropriate." Herrera-Soto, 961 F.2d at 647.
The Defendant has raised several personal factors to justify
his presentence release. The Defendant notes that he fully and
completely complied with all the conditions of pretrial release
for the past twenty months; indeed, the Defendant's Pretrial
Services Officer, Tony Raya, states that the Defendant has
observed all of the conditions of his home confinement and
concurs with the Defendant regarding release pending sentencing.
The Defendant supports his family including a dependent wife,
son, and 80-year old mother through his business, J.B.
Trucking. These "purely personal" factors, standing alone, would
not justify the Defendant's release under Section 1345(c), see
e.g., United States v. Burnett, 76 F. Supp.2d 846, 849 (E.D.
Tenn. 1999) (denying where the primary care provider for brother
and mother); United States v. Ameneiro, No. 94 CR 333-12, 1999
WL 66100 (N.D. Ill. May 12, 1994) (denying where the defendant
worked, did not flee while on bond, and has ties to the
There "is no reason why family circumstances cannot provide a
factual basis for release pending sentencing." Kaquatosh, 252 F. Supp.2d at 778-79.
However, even where the family or personal circumstances are
unique, it is clear the need must be transitory; not based on the
hardships generally imposed on the families of persons who are
incarcerated but rather on "some special reason or need for the
defendant to be free on bond during the period of time between
the finding of guilt and release." Kaquatosh,
252 F. Supp.2d at 778. Here, the Defendant is the sole owner and operator of his
trucking company, which provides the only means of support for
his family. He has operated the company for years, since its
inception, including the past twenty months he was free on bond.
The Defendant has demonstrated a need to make arrangements for
the transition of control or sale of J.B. Land Trucking. These
arrangements regarding the business are not something that can be
done at a later time, after the Defendant completes his sentence.
The failure to do so at this time will have a substantial impact
on his family. United States v. Mitchell, 358 F. Supp.2d 707,
709 (E.D. Wis. 2005) (defendant was attempting to sell or lease
his home, which he owned).
The Defendant also raises a number of legal factors that
justify his release pursuant to Section 1345(c), which should be
considered in combination with the above-discussed personal
factors. The Defendant expects to move for departure under
U.S.S.G. § 5K2.12, which provides relief for defendants who
committed an offense due to serious coercion, blackmail, or
duress, under circumstances not amounting to a complete defense.
The Defendant cites his mitigating role in the Campos Drug
Trafficking Organization, which may be considered under U.S.S.G.
§ 3B1.2. The Defendant contends that he qualifies for relief from
the mandatory minimum sentence, pursuant to U.S.S.G. § 5C1.2. He
is a first offender, he did not use or threaten violence, or
possess a dangerous weapon, he played a minor role in the
offense, and he met with the government under a proffer agreement and truthfully explained
his role in the offense, as well as the role of others. The
Defendant argues that he has demonstrated an acceptance of
responsibility and may be entitled to a reduction of offense
level pursuant to U.S.S.G. § 3E1.1 cmt. n. 2 (2004). Kaquatosh,
252 F. Supp.2d at 778 ("[E]ven if the defendant is bound to be
sent to prison (even for a substantial period of time), the
unique factual circumstances of his case could make immediate
detention inappropriate."). Cf. United States v. Loaiza De
Villa, No. 94 CR 73, 1996 WL 132121 (S.D.N.Y. March 22, 1996)
(legal factors need not reduce incarceration entirely but
circumstances have to be exceptional).
This combination of personal and legal factors demonstrates
"exceptional reasons" justifying presentence release, pursuant to
18 U.S.C. § 1345 (c). Therefore, the Court finds, by clear and
convincing evidence, that the Defendant is not likely to flee or
pose a danger to the safety of any other person or the community
if released, under 18 U.S.C. 3143(a)(1), and finds exceptional
reasons why his detention would not be appropriate, under
18 U.S.C. § 3145(c).
18 U.S.C. § 3143(a)(1) provides, if the judicial officer makes
the above finding regarding release from detention, he shall
order the release in accordance with section 3142(b) or (c). In
so doing, the judicial officer may impose additional or different
conditions of release. 18 U.S.C. § 3142 (c)(3). See also, United
States v. Halikias, 97 CR 694, 1998 WL 292378, *1 (N.D. Ill.,
May 21, 1998). Pursuant to 18 U.S.C. § 3142(c), and the factors
in 18 U.S.C. § 3142(f), Defendant shall be released on all the
terms and conditions of pretrial release, including electronic
home monitoring, provided, however, that the Defendant will not
leave the Northern District of the State of Illinois, and
provided further the bond of $250,000 shall be increased, the
Defendant shall post a $400,000 secured bond, which shall be
secured by the Defendant's residence, and if additional security is needed, by the assets of
J.B. Land Trucking.
For the foregoing reasons, Defendant's, Joseph Bleka's, Motion
for Presentence Release is granted.
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