MEMORANDUM AND ORDER ON GOVERNMENT'S MOTION FOR DETENTION
On or about, June 2, 2004, defendant David Carl Arndt (the"defendant"), was arrested pursuant to a two count Indictmentreturned in this district on May 27, 2004. In Count One thedefendant is charged with conspiracy to distribute and to possesswith intent to distribute methamphetamine in violation of Title21, United States Code, Section 846. Count Two charges thedefendant with possession of methamphetamine with intent todistribute in violation of Title 21, United States Code, Section841 (a)(1). In addition the defendant is subject to the forfeiture provisions of Title 21, United States Code, Section853.
The defendant had his initial appearance before this court onJune 2, 2004. He was represented by retained counsel.1The government moved to detain the defendant on the grounds thatthere is no condition or combination of conditions that willreasonably assure (1) the safety of any other person and thecommunity and (2) the appearance of the defendant.18 U.S.C. §§ 3142 (f)(1)(B), (f)(1)(C)and (f)(2)(A). The government moved for a three day continuanceand a detention hearing was scheduled before this court on June4, 2004.
On that date this court commenced a hearing on the issue ofdetention. The defendant was represented by retained counsel. Thegovernment called one witness speaking to the issue of detention.At the conclusion of the first day of testimony the hearing wascontinued until June 14, 2004, by agreement of counsel. On thatdate the matter was continued until June 18, 2004, by agreementof counsel. On June 18, 2004, counsel sought a furthercontinuance until June 22, 2004.
This court heard further testimony on June 22 and June 28,2004. The defendant did not call witnesses. At the conclusion of the testimony on June 28, 2004, this court took the issue ofdetention under advisement.
I.A. Under the provisions of 18 U.S.C. § 3142(c), "[t]hejudicial officer may not impose a financial condition thatresults in the pretrial detention of the person." Thus, adefendant must be released under the provisions of18 U.S.C. § 3142(b) or (c), or be detainedpending trial under the provisions of 18 U.S.C. § 3142(e)and after a hearing pursuant to 18 U.S.C. § 3142(f).See 18 U.S.C. § 3142(a).
Under 18 U.S.C. § 3142(e), a defendant may be ordered detainedpending trial if the judicial officer finds one of the followingthree conditions to be true that: (1) by clear and convincingevidence, after a detention hearing under the provisions of §3142(f), ". . . no condition or combination of conditions (setforth under 18 U.S.C. § 3142(b) or (c)) will reasonably assurethe safety of any other person or the community . . .;" (2) by apreponderance of the evidence, after a detention hearing underthe provisions of 18 U.S.C. § 3142(f), ". . . no condition orcombination of conditions (set forth under 18 U.S.C. § 3142(b) or(c)) will reasonably assure the appearance of the person asrequired . . .;" or (3) there is a serious risk the defendant will flee.2 This determination is made by thecourt at the conclusion of a detention hearing.
B. The government is entitled to move for detention in a casethat:
(1) involves a crime of violence within the meaning of18 U.S.C. § 3156(a)(4);3
(2) involves an offense punishable by death or lifeimprisonment;
(3) involves an offense prescribed by the Controlled SubstancesAct or the Controlled Substances Import and Export Act for whichthe maximum authorized punishment is imprisonment for ten years or more;4 or
(4) involves any felony alleged to have been committed afterthe defendant has been convicted of two or more crimes ofviolence, or of a crime, the punishment for which is death orlife imprisonment, or a ten year [or more] offense under theControlled Substances Act or the Controlled Substances Import andExport Act.
Additionally, the government or the court sua sponte maymove for, or set, a detention hearing where there is a seriousrisk of flight, or a serious risk of obstruction of justice orthreats to potential witnesses. See 18 U.S.C. § 3142(f).
C. In determining whether there are conditions of release whichwill reasonably assure the appearance of the person and thesafety of any other person and the community, this court musttake into account: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the accused; (3) the history and characteristics of the person, including — (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, he was on probation, on parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and (4) the nature and seriousness of the danger to any other person or the community that would be posed by the person's release.18 U.S.C. § 3142(g).
D. The burden of persuasion remains with the government toestablish "that no condition or combination of conditions willreasonably assure the appearance of the person as required andthe safety of any other person and the community." The burdenthen rests on the defendant to come forward with evidenceindicating that these general findings are not applicable to himfor whatever reason advanced. The government must satisfy itsposition with respect to risk of flight by a preponderance of theevidence and with respect to dangerousness by clear andconvincing evidence. See supra footnote 3. This court mustthen weigh all relevant factors [set forth under § 3142(g)] anddetermine whether "any condition or combination of conditionswill reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community."The decision is an individualized one based on all relevantfactors. United States v. Patriarca, 948 F.2d 789, 794 (1stCir. 1991); see United States v. Jessup, 757 F.2d 378, 387-88(1st Cir. 1985).
Moreover, one may be considered a danger to the community evenin the absence of a finding by clear and convincing evidence thatthe accused will engage in physical violence. Conversely, asnoted by the Committee on the Judiciary (Report of the Committeeon the Judiciary, United States Senate), on S. 215. 98thCongress, Report No. 98-147 (May 25, 1983): The concept of defendant's dangerousness is described throughout this chapter by the term "safety of any other person or the community." The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence. . . . The Committee also emphasizes that the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the "safety of any other person or the community."Id. (Emphasis added; footnotes omitted); see United Statesv. Patriarca, 948 F.2d 789, 792, n. 2 (1st Cir. 1991) (danger tocommunity does not refer only to risk of physical violence);see also United States v. Tortora, 922 F.2d 880, 884 (1stCir. 1990) (stating danger in context of 18 U.S.C. § 3142(g) notmeant to refer only to physical violence); United States v.Hawkins, 617 F.2d 59 (5th Cir.), cert. denied, 449 U.S. 962(1980) (trafficking in controlled substances).5
The issue critical to determining whether to detain a defendantis therefore, whether, with respect to the defendant, based onthe guidelines set forth supra in part C of this Order, anycondition or combination of conditions of release exist that willreasonably assure the safety of any person and the community andthe presence of the defendant. 18 U.S.C. § 3142(e).
E. "Where, as here, a defendant is charged with a controlledsubstance offense punishable by a maximum term of 10 years ormore, the government is aided by § 3142(e)'s rebuttable flightpresumption."6 United States v. Palmer-Contreras, 835 F.2d 15, 17 (1st Cir. 1987) (per curiam). The presumption is notlimited to risk of flight. Rather, the presumption has twocomponents. One component is that the person poses a risk offlight and the second component is that the person "represents adanger to the community." United States v. Moss, 887 F.2d 333,335 n. 3 (1st Cir. 1989) (per curiam).
Thus, under section 3142(e) the judicial officer must considerthe rebuttable presumption that no condition or combination ofconditions will reasonably assure the appearance of the person asrequired and the safety of the community if the judicial officerfinds that there is probable cause to believe that the person hascommitted an offense for which a maximum term of imprisonment often years or more is prescribed by the Controlled Substances Actor the Controlled Substances Import and Export Act or anoffense under 18 U.S.C. § 924(c), the use of a firearm to commita felony. 18 U.S.C. § 3142(e).
The presumption raised as a result of finding probable causethat a defendant committed the relevant narcotics offense isalways entitled to evidentiary weight, the amount of which, if atall, depends on the nature of the production by the defendant andthe other factors set forth under § 3142(g). The defendant,however, "bears only the burden of production." United States v.Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988). As explained by the United States Court of Appeals with regard to the statutorypresumption of section 3142(e): Section 3142(e), however, only imposes a burden of production on a defendant. The burden of persuasion remains with the government. Nevertheless, even after a defendant has introduced some evidence to rebut the flight presumption, the presumption does not disappear, but retains evidentiary weight — the amount depending on how closely defendant's case resembles the congressional paradigm, Jessup, 757 F.2d at 387 — to be considered along with other factors.United States v. Palmer-Contreras, 835 F.2d at 17-18; seealso United States v. Perez-Franco, 839 F.2d at 869-70.
Finally, it is important to note that the presumption istriggered by the statutory penalty prescribed irrespective of theactual or likely sentence imposed upon the particular defendant.See United States v. Moss, 887 F.2d 333, 337 (1st Cir. 1989)(per curiam). The fact that a defendant may receive a sentence ofless than ten years does not make the presumption inapplicable.Id. at 337. Rather, this court may consider such a factor withregard to the weight this court gives to the presumption. Id.at 337.
II. The defendant, David Carl Arndt, is 43 years ofage.7 He was born on October 10, 1960 in New Haven, CT.The defendant grew up in Newton, MA, where his father, apracticing dermatologist, and his mother, a psychologist, continue toreside. The defendant has a sister residing in Washington, DC.
The defendant is single and has one child, a 21 year old son,from a previous relationship with Suzanne Greenwald. Thedefendant has no contact with his son, who resides in Santa Fe,NM.
The defendant attended the University of Massachusetts atAmherst and earned a bachelor's degree in English and psychologyand a master's degree in psychology from San Francisco StateUniversity in California, where he also studied premedicalsciences.
In 1992 the defendant graduated from Harvard Medical School. Hecompleted a residency in orthopedic surgery as part of theHarvard Combined Orthopedic Surgery Program and served as thechief resident in orthopedic surgery at the Beth Israel Hospitalin Boston. After finishing his residency he completed afellowship in spine surgery at Tulane University School ofMedicine in New Orleans, LA.
Upon the completion of his professional training in 1998 thedefendant commenced practicing orthopedic surgery, specializingin spine surgery. He was affiliated with Associates inOrthopaedics and Sports Medicine, Inc. in Wellesley and HarvardVanguard Medical Associates in Boston. The defendant remained inpractice until August of 2002, when his license to practice medicine was suspended by the Massachusetts Board of Registrationin Medicine after "a highly-publicized incident involving asurgery at Mount Auburn Hospital"8 in Cambridge in whichit is alleged that the defendant left his anesthetized patient onthe operating table in the midst of a spine surgery to attend toa personal banking matter outside the hospital.
The defendant's parents told Pretrial Services that they havebeen supporting the defendant financially for the last year andthat since August of 2003 to the time of his arrest the defendanthas been doing carpentry work around their home.
From 1988 to 1990 the defendant lived in Jamaica Plain withSteven Goldfinger ("Goldfinger"). The defendant told PretrialServices that he has resided at 26 Rutland Square in Boston'sSouth End since 1990. The defendant's "partner," Alfredo Fuentes("Fuentes"), also resides at this address.
Pretrial Services advised this court that in 1999 Fuentes, acitizen of Venezuela, pled guilty in the Eastern District ofLouisiana to making false statements in an application for aUnited States passport (a felony). He was sentenced to five yearsprobation. The supervision was transferred to this district whenFuentes moved to Massachusetts and was terminated on January 24,2004. Fuentes is a legal permanent resident of the United States.
According to the Pretrial Services report, the defendant's onlyfinancial asset is a bank account with a balance of $3,000. Hepays monthly rent of $2,400 for the Rutland Square residence. Hefiled for bankruptcy (no year given) in relation to financialproblems he encountered with Goldfinger. However, the case wasdismissed prior to the defendant being adjudicated bankrupt.
By his own admission the defendant smoked methamphetamine fromJune of 2002 to August of 2003, using as much as one half gramper day. He told Pretrial Services that he has only used illegaldrugs once since his release from jail in 2003. At the June 4,2004 hearing this court ordered the defendant to provide a urinesample to Pretrial Services for drug testing. The defendant wasunable to comply.
The defendant also reports a history of mental healthcounseling for a period of two years for treatment of anadjustment disorder.9 In addition the defendant notesthat he took Zoloft (an antidepressant) during his orthopedicresidency to aid him in dealing with the death of friends fromAIDS.
The defendant has a prior criminal record.
In 1998 the defendant pled guilty to a federal fraud charge(misdemeanor involving identity documents). The charge arose inthe Eastern District of Louisiana and the case was transferred to this district for supervision. The defendant was sentenced to aterm of three years probation which was terminated on January 26,2002. It should be noted that the charge against the defendantwas related to the charges against Fuentes described above.
In October of 2002 the defendant was charged in MiddlesexSuperior Court (the "Middlesex case")10 with contributingto delinquency, possession of a Class B controlled substance,possession of a Class A controlled substance, using a drug forsexual intercourse, indecent assault and battery on a personattained age 14 and four counts of rape of a child. Initially thedefendant was released on $1,000 cash bail with the customarywarning that if charged with a crime during the period of hisrelease, his bail could be revoked pursuant to M.G.L. c.276 § 58. In addition the defendant was ordered not to have anyunsupervised contact with children. In October of 2003 the bailwas increased to $20,000 cash, which was posted by thedefendant's parents. The case remains open.
In August of 2003 the defendant was charged in the BostonMunicipal Court with possession with intent to distribute a ClassB controlled substance. This charge arose from the same set ofcircumstances giving rise to the above-captioned Indictment. TheCommonwealth's motion to revoke the defendant's bail in theMiddlesex case, on the basis that the defendant committed a new offense, was allowed on September 4, 2003, by the HonorableThomas Horgan ("Judge Horgan") of the Boston Municipal Court.Judge Horgan imposed an additional bail of $500,000 surety orcash bail of $50,000.
The defendant petitioned for review of bail before a SingleJustice of the Massachusetts Supreme Judicial Court pursuant toM.G.L. c. 211 § 3 and on August 27, 2003 Justice Martha B. Sosmandenied the petition. The defendant sought further review in theSuperior Court pursuant to M.G.L. c. 276 § 57. The motion wasdenied on September 18, 2003. On the same day the defendant wasindicted on the same charge in Suffolk Superior Court (the"Suffolk case").11 On October 9, 2003, the defendant wasarraigned on the Suffolk case. At that time he was released on$50,000 cash bail posted by his parents. The case remains open.
III. The relevant evidence at the detention hearing showed thefollowing.
The government called United States Postal Inspector Michael J.McCarran ("McCarran") of the United States Postal InspectionService. He testified that he has been so employed for the past18 years. He is assigned to the major crimes team in Boston,where he focuses on prohibited mailings which involve contraband,including narcotics, being sent through the United States mails. McCarran testified that during the course of his career he hasparticipated in over 250 narcotics investigations, the majorityof which involved "controlled deliveries."
McCarran testified that on August 7, 2003, he was contacted bya United States postal inspector in Los Angeles, CA. The postalinspector had intercepted a package addressed to Frank Castro,c/o the Chandler Inn, 26 Chandler Street in Boston. The packagewas opened and was found to contain approximately 900 grams of awhite powder which field tested positive for methamphetamine.
In further testimony McCarran stated that the cardboardpackage, which weighed about five pounds, was forwarded to Bostonand arrived on August 8, 2003. McCarran noted that the packagehad an Express Mail label which was handwritten. The returnaddress listed the sender as Hector Medina, 1605 Martel Avenue, #7, Los Angeles, CA. McCarran stated that address was a validaddress but added that the local mail carrier was not familiarwith an individual by the name of Hector Medina at that address.McCarran identified three photographs of the contents of thepackage and a report, which were admitted as Government Exhibit #1.
McCarran described the first photograph as showing a large pinkphallic shaped intact pinata, a "sex toy" and a jar of "elbowgrease." The second photograph shows the mailing label on the package and the pinata with a label that says "Bachelorette'sLast Night Out." The pinata has been torn open. The thirdphotograph shows the plastic bags containing the methamphetamine,which McCarran testified were hidden inside the pinata.
McCarran identified to the report of the National ForensicLaboratory of the United States Postal Inspection Service whichis part of Government Exhibit # 1. McCarran noted that the totalweight of the methamphetamine found inside the pinata was 900grams, approximately two pounds, and the purity was 94 percent.McCarran added that the methamphetamine is a highly addictivestimulant produced in clandestine laboratories in the westernpart of the United States. It is also known as "Ice, Tina, Glassand Crystal Meth" and usually is smoked in a pipe.
In further testimony McCarran stated that surveillance officerswent to the Chandler Inn in Boston on August 8, 2003 andcontacted the management. It was established that an inquiry hadbeen made about the package by the occupant of Room 501, whichhad been rented by the defendant on the previous day at around11:00 a.m. When making the reservation the defendant asked thatthe name Frank Castro ("Castro") be added to the guest list forthe room. The defendant also inquired whether or not a packagehad arrived for him or for Mr. Castro.
McCarran testified that on August 8, 2003, at approximately10:15 a.m., while dressed like a mailman, he approached the front desk of the Chandler Inn with the package. The hotel managercalled Room 501 and there was no response. An undercover agent("UC") was placed at the hotel as a front desk clerk and McCarranleft the package with him. Upon leaving the hotel McCarran calledUnited States Postal Service personnel and instructed them to"scan" the package in as "delivered." McCarran explained that bydoing this a customer using Express Mail would be able to trackthe status of the package and determine whether or not it hadbeen delivered.
According to McCarran, at approximately 1:30 p.m. the defendantarrived at the Chandler Inn and was given the room key to Room501 by the real desk clerk. At the time he was given the key hewas told there was a package for him. The defendant went to hisroom without discussing or accepting the package. About fiveminutes later the defendant returned and asked the desk clerk ifhe had mentioned something about a package. The defendant thensigned for and received the package and headed for the elevator.McCarran and the UC then approached the defendant and identifiedthemselves as law enforcement agents. McCarran identified thedefendant in open court as the person who accepted the package.
McCarran told the defendant, who appeared very nervous, thatthey needed to discuss the package outside the public view of thelobby area. They adjourned to the defendant's room. McCarran was accompanied by other law enforcement agents. According toMcCarran, the defendant admitted making the reservation for theroom but denied ever making any inquiries about the Express Mailpackage, but said that the package was for Castro. He describedCastro as a friend he met on an internet website calledmanhunt.com. The defendant stated that he had met Castro inperson but that he did not have his telephone number or any wayof contacting him.
In further testimony McCarran stated that the defendant saidthat Castro contacted him the week before and stated that he hadbusiness in Boston. They agreed that the defendant would reservea room for Castro at the Chandler Inn. McCarran noted that thedefendant was not under arrest during the course of theinterview, which lasted for about three hours. McCarran notedthat at one point during the interview the defendant took atelephone call from his attorney on his cellular telephone.McCarran noted that Castro never appeared at the Chandler Inn.
McCarran testified that he determined that the defendant wasnot telling the truth about Castro or the package. McCarranstated that he obtained toll records for the defendant's cellulartelephone which indicated that on six occasions prior to pickingup the package the defendant called the "800" package trackingnumber that the United States Postal Service maintains to enableindividuals to track packages. In an attempt to ascertain Castro's identify McCarran obtaineda federal search warrant for the defendant's computer, which waslocated at the defendant's Boston residence. McCarran testifiedthat an analysis of the computer did not reveal any informationrelating to a Frank Castro on manhunt.com or any Email betweenthe defendant and Castro.
In further testimony McCarran said that law enforcementauthorities subsequently determined that years ago the defendantwent to school with an individual by the name of Frank Castro.That individual is currently working as a physician in Knoxville,TN. He was contacted and stated that he had no intention of beingin the Boston area on August 8, 2003. In addition he provideddocuments from his office indicating that he had seven surgeriesscheduled on August 8, 2003 and that he was on-call on the twofollowing days.
McCarran noted that in the course of executing the searchwarrant for the defendant's computer several items were found ina hard briefcase which was thought to be a computer case. Theitems included 25 grams of marijuana, eight plastic bags thattested positive for methamphetamine hydrochloride, several pipesand paraphernalia relating to drug use. McCarran identified aphotograph of the contents of the computer case. The photographwas admitted as Government Exhibit # 2.
In the course of executing the search warrant McCarran noted that he found another computer bag. A postal receipt for anExpress Mail package that was mailed from the Cambridge PostOffice on August 5, 2003, was found in the computer bag alongwith a piece of paper with a California address written on it.McCarran stated that the receipt was significant because he hadasked the defendant during the course of the Chandler Inninterview whether he had mailed any packages to California. Thedefendant denied that he had sent any packages.
McCarran testified that the Express Mail label was ofsignificance, based on his training and experience, because whendrugs are shipped to this part of the country from another partof the country then "payment has to go out the other way."McCarran added that he also found a customer receipt for anExpress Mail package "on the desk just to the right of thecomputer." The label showed that a package had been mailed to LosAngeles on August 5th.
The following week McCarran contacted the Kendall Square PostOffice in Cambridge and obtained surveillance films for August 5,2003. McCarran testified that he observed the defendant mailing apackage on the videotape. McCarran testified that he spoke with acooperating witness ("CW"), whom he referred to as CW-2, whostated that the defendant said the reason the package wasintercepted in Los Angeles was because it had a hand writtenlabel and it weighed over two pounds. The defendant also told CW-2 that Frank Castro was a fictitious name.
In resumed testimony on June 23, 2004, McCarran clarified hisprevious testimony regarding the two receipts that were foundduring the execution of the search warrant for the defendant'scomputer. He noted that the first receipt, for a package sentfrom the Kendall Square Post Office at 11:16 a.m. on August 5,2003, was found in the computer bag. The second receipt, found inthe defendant's partially open desk drawer, was a customerreceipt for a package sent from Feral Lupien, 433 Grant Street,Newton, MA to Brant Shank, 2531 Sawtell Boulevard, Los Angeles.McCarran noted that Grant Street in Newton does exist but thenumbers do not go as high as 433.
McCarran testified that in the course of his investigation healso reviewed tape recordings of telephone conversations thedefendant had while he was in custody at the Nashua Street jailin Boston between August 13, 2003 and September 15, 2003. Duringone conversation the defendant stated that he took a loss of"forty or fifty" because of the package. In another conversationhe also told Fuentes that he had someone take drugs out of hisapartment so they would not be found.
In further testimony McCarran testified that he spoke withother CWs during the course of the investigation. McCarran statedthat CW-1, who was indicted outside of Massachusetts fordistributing large quantities of methamphetamine, said that between April of 2003 and August of 2003 the defendant traveledto New York City on a weekly basis to purchase a pound ofmethamphetamine. McCarran noted that during the course of theirconversation it was CW-1 who first raised the name of thedefendant.
McCarran added that CW-1 was personally aware that thedefendant traveled to New York City on at least five or sixoccasions to purchase a pound of methamphetamine at a cost of$25,000. CW-1 noted that the defendant traveled to New York byplane, train or bus and that he usually paid for themethamphetamine in bills packed in stacks of $2,000.
McCarran was shown a sheaf of documents which was admitted asGovernment Exhibit # 3. He described the documents as travelrecords reflecting the defendant's travel between Boston and NewYork City between May 10, 2003 and August 1, 2003. The recordsreflect travel by bus, train and plane. McCarran noted that thedefendant also traveled to Los Angeles in July of 2003.
McCarran testified that on June 19, 2003, the defendant wassearched at Logan International Airport in Boston after hearoused the suspicion of a Transportation Security Administrationscreener. McCarran noted that the defendant purchased a one wayticket with cash.
According to a report of the incident, which was admitted asGovernment Exhibit # 4, the defendant "artfully concealed on his person in his jacket and throughout his carry-on bag $19,000 inU.S. currency." The report states that the defendant had thecurrency "stuffed around his waist under his shirt, in his jacketand also throughout his carry-on bag." When asked how muchcurrency he was carrying the defendant first stated $9,000 andthen changed the figure to $10,000. Later it was determined thathe was carrying approximately $19,000. The defendant was alsocarrying a passport. The defendant was allowed to continue histravel when the inspection was completed.
In further testimony McCarran stated that CW-2 went to thedefendant's Boston residence in July of 2003 and purchased an"eight ball" (an eighth of an ounce) of methamphetamine from thedefendant. Later on the same day he purchased a second eight ballof methamphetamine. CW-2 stated that at the time of the visit heobserved a kilogram of methamphetamine. During the course oftheir dealings the defendant told CW-2 the rules for drugdealing: dress in business attire; do not come unannounced and donot use crystal methamphetamine before coming over.
McCarran added that over a several week period CW-2 purchasedat least seven ounces of crystal methamphetamine from thedefendant at a cost of $2,400 an ounce. The CW-2 reported thatthe drug was of a high quality and that the defendant's roommate,Fuentes, was present when he went to the defendant's residence.McCarran noted that the CW-2's final purchase was for two ounces. CW-2 said that the defendant then shut him offbecause he was getting "too big."
McCarran stated that once the defendant was arrested in Augustof 2003 CW-2 picked up the defendant's drug business. CW-2 statedthat when the defendant was released from custody he gave thedefendant $500 and an eight ball of crystal methamphetamine.Later he sold the defendant a half ounce of crystalmethamphetamine for $1,600 which the defendant resold for $1,800.CW-2 stated that the defendant was practicing "back alley"medicine.
McCarran testified that he interviewed another individualidentified as CW-3, who said that he smoked crystalmethamphetamine with the defendant on more than ten occasionsbetween December of 2002 and the time of the defendant's August2003 arrest. CW-3 stated that he also made six purchases ofcrystal methamphetamine from the defendant.
In further testimony McCarran stated he interviewed anotherindividual identified as CW-4, who was arrested in October of2003 for trafficking in crystal methamphetamine. CW-4 stated thatbetween late 2002 and August 2003 he purchased one ouncequantities of crystal methamphetamine from the defendant. CW-4was aware that the defendant was traveling to New York everyother week. On one occasion CW-4 was in the apartment of CW-1'spartner when the defendant arrived to purchase crystal methamphetamine.
McCarran testified that during the time the defendant waspracticing medicine there was an arrest of an individual by thename of Charles Ghera ("Ghera") at the Swiss Hotel in Boston onJanuary 10, 2002. During the course of Ghera's arrest lawenforcement authorities recovered crystal methamphetamine,ketamine, prescriptions, drug ledgers and $110,000 in UScurrency.
McCarran was shown a set of documents which was admitted asGovernment Exhibit # 5. McCarran identified the documents asphotocopies of some of Ghera's notes. McCarran testified that hereviewed the notes. He pointed out that the first page includesthe defendant's name, the address of the Mt. Auburn Hospital inCambridge and the defendant's Drug Enforcement Administration("DEA") number. The notation "Dave Arndt owes!" appears at thetop of the second page. The third page is a weekly planner forthe week March 24, 2002, which lists a number of prescriptionmedications by brand name. The list includes Ambien, Xanax,Valium, Percocet, Oxycontin 80 mg, Ritalin and Viagra. Thelanguage "*All NAME BRAND -NO- GENERICS" appears next to thelist. Government Exhibit # 5 includes a number of blank pagesfrom a prescription pad bearing the defendant's name and theaddress of the Mt. Auburn Hospital.
In further testimony McCarran stated that he subpoenaed the records for prescriptions written by the defendant under his DEAnumber between October of 2001 and May of 2002. McCarrandiscovered that Ghera filled 22 prescriptions written by thedefendant during this time period. McCarran noted that all of theprescriptions stated "No Substitutions." McCarran opined thatthis is because generic drugs are not easily sold "on thestreet." McCarran added that around March 26, 2002, Ghera filleda variety of prescriptions for the same drugs listed inGovernment Exhibit # 5. Copies of the prescription recordswritten for Ghera were admitted as Government Exhibit # 6.
McCarran testified that as part of the investigation hesubpoenaed the medical records of the institutions where thedefendant practiced medicine in an attempt to locate medicalrecords relating to Ghera. He was unable to find anydocumentation that Ghera was ever a patient of the defendant.
In added testimony McCarran stated that CW-2 said he went tothe defendant's residence and purchased two 40 mg. Oxycontintablets for $40 each. CW-2 stated that the tablets were stored ina container which had in excess of 100 tablets. CW-2 also statedthat the defendant was writing prescriptions for hismethamphetamine customers, which they would fill and bring backto him in return for crystal methamphetamine.
McCarran noted that CW-4 stated that the defendant told himthat the package sent to Chandler Inn was his. The defendant told CW-4 that the Chandler Inn was a safe place because he hadcontacts there.
In further testimony McCarran stated that after CW-4 wasarrested he had a conversation with the defendant in which hetold the defendant that he believed that someone had "ratted" onhim. According to CW-4, the defendant stated that if someoneratted on him he would have no problem "disemboweling" the personwith a "quick swipe of the scalpel."
On cross examination it was established that McCarraninterviewed CW-3 and CW-4 and that he was present for part of theinterview of CW-2. McCarran noted that he read interview reportsgathered by DEA agents. He added that the CWs have signedproffers. McCarran noted that CW-1 was indicted outside ofMassachusetts for trafficking in methamphetamine. McCarran, whodid not know the amount of methamphetamine involved, stated thathe was provided with a copy of CW-1's interview. He added thatCW-1's last contact with the defendant was in the summer of 2003.Defense counsel established that CW-3 stated that he smokedcrystal methamphetamine with the defendant on ten occasions andthat he made six purchases of the drug from the defendant.McCarran noted that CW-3, who told the defendant that he wasgoing before the Grand Jury, was never threatened by thedefendant.
In further cross examination McCarran stated that based on conversations he had it "appears that the defendant is addictedto crystal meth." However, McCarran noted that people did notdescribe the defendant as an addict. McCarran added that duringthe course of monitored telephone calls the defendant had whileincarcerated in the Nashua Street jail the defendant said he wasaddicted.
Defense counsel established that the defendant was arrested bythe Massachusetts State Police on August 8, 2003, after thesearch of his apartment. He was released on bail afterapproximately 60 days in custody.
In resumed cross examination on June 28, 2004,12McCarran stated that since his last testimony he had met with theAssistant United States Attorney handling the case and identifiedcertain documents and reviewed certain redacted reports. Duringcross examination defense counsel offered various documentsrelating to McCarran's testimony on direct examination.
McCarran identified a document, which was admitted asDefendant's Exhibit # A, as a copy of the search warrantinventory for the August 8, 2003 search at the defendant'sRutland Square residence. Among the items listed on the inventoryare a computer, a computer bag with photo ID, an Express Mailreceipt and sheet of paper, a second Express Mail receipt, a computer disk case with marijuana, pills and drugparaphernalia and a plastic bag with 13 packets of pure ephedrene(sic).
Defense counsel offered two documents, which were admitted asDefendant's Exhibit # B. The first document is a computerprintout from the Massachusetts Board of Registration in Medicine(the "Board") indicating that the defendant received a "SummarySuspension" on August 7, 2002.
The second document, which bears the same date, is a newsrelease from the Board detailing the basis for the Board'saction. The document states that the Board found that "Dr. Arndtposes an immediate threat to the public health, safety andwelfare." It continues, "In its Statement of Allegations, theBoard charged that Dr. Arndt abandoned his anesthetized patientin the Mount Auburn Hospital operating room to go to a bank inHarvard Square during the surgery." The Board's action prohibitsthe defendant from practicing medicine in Massachusetts until afurther order of the Board.
In further cross examination McCarran identified a copy of aredacted Federal Bureau of Investigation report ("FBI 302"). Thedocument, which was admitted as Defendant's Exhibit # C, outlinesa proffer agreement interview of CW-1 conducted on March 26,2004, according to McCarran.
According to the FBI 302, CW-1 first met the defendant in Provincetown in 2001. CW-1 states, "[redacted] sold 1/4 gramquantities of methamphetamine to Arndt." CW-1 adds that fromApril of 2003 until the defendant's arrest in July or August of2003 [redacted] sold approximately one pound of methamphetamineto the defendant every one or two weeks for a total of five orsix sales. CW-1 goes on to say that the sales took place in NewYork and the defendant paid $1,600 per ounce and usuallypurchased a pound for $25,500 in cash.
Defense counsel showed McCarran a document which was admittedas Defendant's Exhibit # D. McCarran described the document as aredacted DEA report of investigation setting forth a profferinterview by CW-2. The document reflects that it was prepared onMay 20, 2004.
According to the proffer, CW-2 was given the defendant's screenname on manhunt.com. CW-2 then connected with the defendant, whohe knew to be a drug dealer, through online chat. They met inperson in July of 2003 at the defendant's home and the defendanttold CW-2 that he was a drug dealer and only sold crystalmethamphetamine. The defendant showed CW-2 a large rock ofcrystal methamphetamine and then broke off a piece which he gaveto CW-2. During the meeting the defendant agreed to sell CW-2 aneight ball of crystal methamphetamine for $400. The defendanttold CW-2 the procedures described previously for conducting drugbusiness. CW-2 made additional purchases over the following days.
CW-2 stated that the defendant told him that he was treatingpeople who would get shot and could not or did not want to go tothe hospital. However, defense counsel established that CW-2'sstatement that the defendant was practicing "back alley medicine"was not corroborated.
Defense counsel showed McCarran a document which was admittedas Defendant's Exhibit # E. McCarran identified the document as aFBI 302 dated June 10, 2004, which sets forth the proffer ofCW-4. The document basically tracks McCarran's testimonyregarding CW-4 but sets it forth in greater detail.
At the conclusion of the testimony the government offered threeadditional exhibits without objection. The first set ofdocuments, which was admitted as Government Exhibit # 7, includesthe Commonwealth's Statement of the Case, filed in the Middlesexcase13 on October 9, 2002 and supporting police reports.The pleading details the facts which are the basis for thepending child rape and related charges.
The pleading alleges that the defendant lured two boys, ages 14and 15, into his car by telling them about a new drug "that getsyou horny and feels cool." He later told them that the drug wascrystal meth and provided them with a pipe to smoke the crystalmeth. The defendant then dropped off one of the boys who said he had to go home. The defendant then performed varioussexual acts on the other boy, who described himself as being "outof it" from the drug. The police reports support the allegationsin the Commonwealth's Statement of the Case.
Government Exhibit # 8 includes a number of pleadings from theMiddlesex case. The pleadings include a motion, based on thedefendant's indigence, for funds for trial preparation(investigation) in the amount of $15,000 and a motion to engage apsychiatrist. The motion for funds was allowed to the extent of$1,500 on April 4, 2003 and the papers do not reflect any actiontaken on the motion for a psychiatrist.
Government Exhibit # 9 is a report from the Provincetown, MAPolice Department dated August 31, 1998, relating to multiple 911calls at 4:27 a.m. from the area of 145 CommercialStreet.14 According to the report, upon arriving in thearea the police were directed to the residence of Roger Volzer("Volzer"), who stated that he was sitting on a couch inside hisresidence with a male friend, later identified as Fuentes.
Volzer told the police that when he got up to blow out thecandles a male subject ripped the window screen, entered throughthe window and grabbed him, striking the right side of his headwith his fist. Volzer managed to run out of the house and called for someone to call the police. Volzer stated that the assailantran after him but was stopped by Fuentes. Fuentes and theassailant then left the property.
Volzer stated that he knew the assailant's first name to beDavid, where he lived and that he was the "ex-lover" of Fuentes.The police placed Volzer in the cruiser and were directed to thehouse where Volzer believed the assailant to live. Officersapproached the house and were met by the defendant who stated,"You must be looking for me." The defendant added, "I didsomething very dumb . . . I went down to that guys (sic) house."
The report notes that the defendant was taken into custody andcharged with burglary while armed, assault on an occupant,assault and battery by means of a dangerous weapon, to wit, achair and malicious destruction of property.
At the conclusion of the detention hearing defense counselprovided this court with a multi-part submission in support ofthe defendant's argument for release. The filing includesnumerous state court documents and materials from PhysicianHealth Services ("PHS"), a subsidiary of the MassachusettsMedical Society "designed to provide identification, support andmonitoring services to physicians in Massachusetts who areexperiencing or are at risk for health related concerns."
The materials include a letter dated June 22, 2004, to defense counsel15 from PHS which states that thedefendant went to PHS (no date given) "for an assessment todetermine whether he is experiencing the type of health relatedproblem that would benefit from the support and monitoringservices offered by PHS." The letter goes on to note that it isthe assessment of PHS that the defendant "would benefit from aPHS chemical dependency contract with a behavioral healthaddendum to monitor his compliance with a health relatedtreatment plan."
IV. The return of the Indictment in the United States DistrictCourt for the District of Massachusetts in this case establishesthe existence of probable cause that the defendant committed thecrimes for which he is charged in the Indictment.
The United States has moved for detention pursuant to18 U.S.C. §§ 3142(f)(1)(B), (f)(1)(C) and (f)(2)(A). The government mustprove by clear and convincing evidence that if released thedefendant would pose a serious danger to any person or thecommunity. In contradistinction, the government must demonstrateonly by a preponderance of evidence that the defendant, ifreleased, constitutes a serious risk of flight or failure toappear. The two different standards are used because of the clearlanguage expressed in the last paragraph of 18 U.S.C. § 3142(f)which states "that no condition or combination of conditions will reasonably assure the safety of any other personand the community shall be supported by clear and convincingevidence." Congress, by not attaching that language to the riskof flight clause, infers that a lower standard of proof is allthat is necessary to establish the government's case.
A. Danger to the Community
This court first addresses the likelihood that the defendant,if released, would be a danger to another person or thecommunity.
The government's case against the defendant is strong. Thedefendant accepted an Express Mail package containingapproximately of one pound of methamphetamine. He appears to havecarefully orchestrated the arrival of the package, by sending itto a hotel addressed to the name of an old schoolmate who has nocurrent connection to Boston, to minimize possible detection ofhis own involvement. This type of planning is typical of anexperienced drug dealer and not a casual drug user.
McCarran's testimony that CWs knew that the defendant traveledto New York on at least five or six occasions to purchase poundquantities of methamphetamine for $24,000 or $25,000 while he wason release in on the Middlesex case is very disturbing. Againthis is not the conduct or a user, but the conduct of anexperienced drug dealer. It would appear that the has defendant applied his considerable intellectual acumen toconducting criminal activity.
Most significantly, the circumstances giving rise to thepresent charges occurred when the defendant was already on bailfacing very serious charges in the Middlesex case under aspecific condition of release that he not commit another crime.It is clear to this court that in the past the defendant has beenunable to abide by conditions of release.
Defense counsel proffers that the defendant is in need of drugtreatment and suggests the outpatient treatment program offeredby PHS as an alternative to detention. It would appear that tothis court that the defendant has had ample opportunity to seektreatment.
According to the Pretrial Services report, the defendant wasusing drugs from June of 2002 through August of 2003. This courtnotes that the defendant's license to practice medicine was notsuspended until August 7, 2002.16 Thus it would appearthat the defendant was practicing medicine at a time when he wasusing drugs. Having had his medical license suspended he might ofsought treatment in August of 2002, when it appeared his hardearned professional career was falling apart. Within a few monthshe was charged with a violent sex crime on a juvenile. From Government Exhibit # 7, the Commonwealth's Statement of theCase, it appears that methamphetamine was a factor in this crime,the facts of which are among the most reprehensible that thiscourt has ever seen. But after being placed on bail the defendantdid not enter treatment but instead became involved not only inusing methamphetamine but in dealing in methamphetamine on alarge scale.
Finally after being arrested in August of 2003 on drug chargesand being incarcerated for almost two months, the defendant hadanother chance to enter into drug treatment. But he did not. Thedefendant's present request to participate in the PHS programwhich provides support and monitoring, not secure inpatienttreatment, for impaired physicians is in too little too late.
In August of 2002 the Board of Registration in Medicine foundthe defendant posed "an immediate threat to the public health,safety and welfare" to the public seeking medical care. From thatpoint forward the defendant's life has spiraled down, first beingcharged with a violent sex crime involving a juvenile, then witha major drug crime and a period of incarceration in the statesystem. This court believes that the defendant is unable to abideby conditions of release, as has been shown by his past conduct,and therefore continues to present a danger to the community. The defendant did not proffer any credible evidence to detractfrom the government's assertion that he has committed a seriousdrug crime involving a narcotic drug and that he is a danger tothe community or any person. This court finds by clear andconvincing evidence that there is no condition or combination ofconditions that will assure the safety of any person or thecommunity if the defendant is released.
B. Risk of Flight
Next, this court turns to risk of flight or failure to appear.
Although the defendant has ties to the community and hasappeared for court as required in the past, this court has somedoubt about whether he will appear as required in light of thepresent circumstances.
The defendant faces a lengthy term of incarceration ifconvicted. This in itself provides an incentive to flee. Thedefendant is a highly educated individual who appears to havetraveled frequently in the past. The testimony at the detentionwas replete with references to the defendant traveling by plane,train and bus in recent months at a time when he was on bail,unemployed and representing to the court that he was indigent.
It must also be noted that the defendant's partner is aVenezuelan national. It is possible that the prospect of a long period of incarceration might prompt the defendant and hispartner to flee to Venezuela, where the defendant might be beyondthe reach of extradition.
It is of particular significance to this court that in Februaryof 2003, defendant's counsel in the Middlesex case filed a motionfor the Commonwealth to furnish funds for trial preparation(Middlesex Docket Entry # 13) on the basis that "the defendantfinds himself before this Honorable Court, without funds forinvestigation and other matters, to prepare for trial." Yet justover four months later when traveling through Logan Airport onhis way to New York City on June 19, 2003, while on bail andunemployed, the defendant was found to be carrying $19,000 incash carefully concealed on his person and in his carry-on bag.This court has heard nothing to explain this unusual behavior.
In addition the statements of the CWs indicate that thedefendant was handling large sums of money and crystalmethamphetamine during this period at the very time when he wasalready on bail. This suggests that the defendant may have accessto large sums of money which would provide the means to flee.This was considered by Justice Sosman in her August 27, 2003denial of the defendant's state bail petition. She stated, While the defendant proffers ostensibly innocent explanations for what would otherwise look like a serious flight risk, the circumstances strongly suggest a substantial risk of flight, and, where the defendant apparently had access to considerable sums of money (either from alleged drug dealing or, as he contends, by way of loans from friends), a significant dollar amount of bail is appropriate to address that risk.
Finally, this court addresses the defendant's personalcharacteristics. By his own admission during a monitoredtelephone call at the Nashua Street jail the defendant admittedto being addicted to crystal methamphetamine, a highly addictivestimulant, according to McCarran. In the past the defendant has ahistory of irresponsible behavior such as the Provincetown homeinvasion and abandoning his patient in the operating room,irrespective of the alleged criminal behavior. Whether fueled bycrystal methamphetamine or other reasons, the defendant's conductis unexplainable, particularly in light of his education andtraining. This court does not believe that the defendant can berelied upon to appear as required.
Based on the totality of the circumstances this court finds bya preponderance of the evidence that there is no condition orcombination of conditions that will assure the appearance of thedefendant as required.
The government has satisfied this court by clear and convincing evidence that no condition or combination ofconditions of release (set forth under 18 U.S.C. § 3142(b) or(c)) will reasonably assure the safety of any other person or thecommunity if the defendant is released. In addition, this courthas found, at least by a preponderance of the evidence, thatthere is no condition or combination of conditions that willassure the appearance of the defendant as required.
Having evaluated the factors set forth in 18 U.S.C. § 3142(g),this court orders the defendant detained subject to the followingconditions: (1) The defendant be, and hereby is, committed to the custody of the Attorney General for confinement in a corrections facility, separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; (2) The defendant be afforded reasonable opportunity for private consultation with his counsel; and (3) On Order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which the defendant is confined shall deliver the defendant to an authorized Deputy U.S. Marshal for the purpose of any appearance in connection with a court proceeding.
1. Throughout the proceedings the defendant has beenrepresented by retained counsel, albeit not the same attorney ateach hearing. At the time of the issuance of this ORDER thedocket reflects that three attorneys appear as counsel of record.Each of them appeared either alone or with another at the varioushearings between June 2, 2004 and June 28, 2004.
2. The distinction between the former and the latter are madeclear by the very language of 18 U.S.C. § 3142(f). In the lastparagraph of that section, Congress has stated there must beclear and convincing evidence to authorize pretrial detentionwhen the question is whether any condition or combination ofconditions "will reasonably assure the safety of any otherperson and the community. . . ." (Latter emphasis added.) By notrequiring that same standard vis a vis an assessment ofrisk of flight, it is clear that a lesser standard — i.e.,preponderance of the evidence — applied. That is precisely theholding in the Second Circuit. See e.g., United States v.Jackson, 823 F.D. 4, 5 (D.C. Cir. 1987); United States v.Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986), cert.dismissed, 107 S.Ct. 562 (1986); see also United States v.Patriarca, 948 F.2d 789, 792 (1st Cir. 1991).
3. Section 3156 of Title 18 of the United States Code definesa crime of violence as: (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another, or (B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 3156(a)(4).
4. The maximum penalty is that provided by the statutedefining and/or providing the punishment for the substantiveoffense — not the sentence, or even the maximum sentence, whichmight otherwise be imposed under the federal SentencingGuidelines. See United States v. Moss, 887 F.2d 333, 336-7(1st Cir. 1989).
5. A defendant may be ordered detained as a danger to thesafety of another or to the community, however, only if thejudicial officer determines that a detention hearing isappropriate under the provisions of moved under18 U.S.C. § 3142(f)(l), and the judicial officer has determined that ahearing is appropriate under that latter section. See UnitedStates v. Ploof, 851 F.2d 7 (1st Cir. 1988).
6. The presumption reflects Congressional findings thatpersons who deal in drugs often have the necessary resources andforeign ties to escape to other countries. United States v.Palmer-Contreras, 835 F.2d 15, 17 (1st Cir. 1987) (per curiam).Consequently, imposing "a large bond is often ineffective indeterring flight." United States v. Perez-Franco, 839 F.2d 867,869-70 (1st Cir. 1988).
7. The information in this section is a compilation ofmaterial gathered by Pretrial Services and submissions of thedefendant to this court including the defendant's curriculumvitae.
8. This language is taken from footnote one of the defendant'sopposition to the government's motion for pretrial detention.
9. No date is given for the period of this treatment.
10. Middlesex Superior Court No. 2002-1569-001-009.
11. Suffolk Superior case # CR 2003-10951.
12. In the interim between the hearings government counselprovided defense counsel with various reports.
13. This case is referred to in the criminal history portionof Section II of this ORDER.
14. This court notes that the defendant was not convicted ofthis offense. The charges were eventually dismissed. However,this court is considering the circumstances of the event in termsof the defendant's proclivity for impulsive, if not violentbehavior.
15. The letter indicates that it was prepared at the requestof defense counsel.
16. His privileges at the Mount Auburn Hospital were summarilysuspended on July 11, 2002, according to Defendant's Exhibit #B.