US v. Giannetta, Crim. No. 86-00035-01-P

• Decision Date: 07 October 1988
• Docket Number: Crim. No. 86-00035-01-P,86-00063-04-B.
• Citation: 695 F. Supp. 1254
• Parties: UNITED STATES of America v. James W. GIANNETTA.
• Court: U.S. District Court — District of Maine

695 F. Supp. 1254

UNITED STATES of America v. James W. GIANNETTA.

Crim. Nos. 86-00035-01-P, 86-00063-04-B.

United States District Court, D. Maine.

October 7, 1988.

William H. Browder, Jr., Asst. U.S. Atty., Portland, Me., for plaintiff.

Judy Potter, Portland, Me., for defendant.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR ADMISSION TO BAIL

GENE CARTER, District Judge.

Before the Court is Defendant-Probationer's motion for a bail hearing and for admission to bail. A hearing was held thereon on September 30, 1988.

The record in these cases reflects that this Defendant was sentenced by this Court on February 26, 1988, at which time imposition of sentence was suspended, and Defendant was placed on probation for a period of five years, on the usual terms and conditions of probation and upon the special condition that Defendant would at all times during his period of probation readily submit to a search of his residence, and any other premises under his dominion or control, by his supervising probation officer upon the officer's request. At the time of imposition of sentence, the record reflects that Defendant was advised by the Court of the Court's awareness of the seriousness of his conduct culminating in conviction and that the Court was taking seriously into account the very extensive cooperation of this Defendant with the Government in its drug enforcement activities. Defendant was warned by the Court in the most clear and cogent terms that his supervision on probation would be, at the specific instructions of the Court, both close and active and that the Court would brook no significant violation of the terms and conditions of his probation. Defendant assured the Court of his full and precise compliance with all of the terms and conditions of probation.

Supervising Probation and Parole Officer Vincent J. Frost has apparently experienced a nearly continuous series of problems with this Probationer, which were on several occasions discussed with the Court. One significant problem appeared to be that Probationer persisted in leaving the District of Maine either without the specific authority of his probation officer to do so or in direct violation of a denial of such permission. As a result of that conduct, the Court instructed Officer Frost to instruct Probationer that as of May 2, 1988, he would be required to obtain an order of this Court authorizing travel outside the District of Maine before he could undertake such travel. The Court has found probable cause to believe that he thereafter persisted in leaving the district without the required authorization.

On August 24, 1988, Officer Frost filed a Petition for Probation Action seeking a hearing for alleged violations of numerous conditions of Probationer's probation. On the date of filing, the Court endorsed the petition, ordering that a warrant issue on or after September 1, 1988 and that a hearing be held in due course.

A preliminary hearing was held on the petition on September 6, 1988, at the conclusion of which the Court found probable cause to believe that Probationer was in violation of numerous conditions of his probation, and ordered him held for a revocation hearing. He has been held in custody since the preliminary hearing. The pending motion for admission to bail pending the revocation hearing was filed on September 9, 1988.

The provisions of Fed.R.Crim.P. 32.1 have set the procedure for proceedings in respect to revocation of probation. Rule 32.1(a)(1) provides that following the preliminary hearing and a determination of probable cause, the probationer may be released pursuant to Rule 46(c) pending the revocation hearing. Rule 46(c) provides that eligibility for release "shall be in accordance with 18 U.S.C. § 3143. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant." The pertinent provisions of 18 U.S.C. § 3143, as applicable in these revocation proceedings, equate the probationer's situation to that of a defendant convicted and awaiting imposition of sentence. Section 3143(a) provides that the probationer shall be detained "unless the judicial officer finds 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 under section...