U.S. v. Apker, 91-3869

• Decision Date: 07 May 1992
• Docket Number: No. 91-3869,91-3869
• Citation: 964 F.2d 742
• Parties: UNITED STATES of America, Appellee, v. Gary D. APKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 742

964 F.2d 742

UNITED STATES of America, Appellee, v. Gary D. APKER, Appellant.

No. 91-3869.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 21, 1992.

Decided May 7, 1992.

David R. Stickman and Martin J. Kushner, Omaha, Neb., argued, for appellant.

Stephen L. Von Riesen, Omaha, Neb., argued, for appellee.

Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.

PER CURIAM.

Gary D. Apker appeals from the order entered in the District Court for the District of Nebraska ¹ granting the government's motion for revocation of a previous order of the magistrate judge ² which granted Apker's release pending trial. We affirm the District Court's order.

Apker is charged in two multi-count indictments with various offenses, including conspiracy to distribute five kilograms or more of methamphetamine, possession with intent to distribute methamphetamine, continuing criminal enterprise, and money laundering. He faces thirty years to life imprisonment on these charges. Apker has been detained pending trial since October 17, 1990. He is 49 years old, has not been employed for some time, and has a history of prior criminal conduct, including at least one conviction on a controlled substances charge. At the time of his arrest in this case, authorities seized from Apker's residence a firearm with a silencer, approximately twenty-five pounds of methamphetamine, and about $230,000 in cash. Law enforcement authorities obtained highly incriminating evidence against Apker through state and federal wiretaps.

Pretrial detention is required if there are no conditions of release that can reasonably assure the accused will not pose a risk of flight or a danger to the community. 18 U.S.C.A. § 3142(e) (West Supp.1991). Where there is probable cause to believe the accused committed a drug offense carrying a maximum term of imprisonment of at least ten years, as in this case, a rebuttable presumption arises that no conditions of release will be sufficient to reasonably assure the accused will not flee or commit further offenses. Id.

Following the initial detention hearing, the magistrate judge concluded there were no conditions of release that could reasonably assure Apker would not flee or continue dealing drugs. Apker subsequently moved for reconsideration and the magistrate judge again found continued detention appropriate because the weight of the evidence against Apker was strong. The magistrate judge also doubted the effectiveness of electronic monitoring in this case because Apker had used "sophisticated means of avoiding detection in the past" (e.g., a motion detector and a hidden safe). Apker filed the instant motion for pretrial release on September 26, 1991, asserting that his continued detention was unconstitutional and in violation of the Act because he posed neither a risk of flight nor a danger to the community.

A hearing was held on the instant motion on October 16, 1991. Before the magistrate judge ruled, hearings were held on October 28 and 29 regarding a motion by Apker to suppress evidence. The magistrate judge heard evidence that investigators listened to and recorded telephone conversations before they had court authorization for the wiretap. The officer involved characterized the activity as standard procedure and as merely an audio test from which no substantive information was acquired or retained. The magistrate judge found...