Opinion
02 CR 140 (ILG)
October 30, 2002
MEMORANDUM ORDER
An extended bail hearing was held on April 30, 2001. before Magistrate Judge Pollak at which the government sought an order of detention of the defendant. Towards the conclusion of that hearing, at which F.B.I. Special Agent Jay Adam was examined and cross-examined at length, counsel for the defendant stated . . . if your Honor is inclined, that we will be willing to do a house arrest with giving him the opportunity to go to work every day (Tr. 44-45).
Thereafter, following additional colloquy, the Court said ". . . . I am going to release him on $1.25 million bond, with electronic monitoring. I'm not going to let you work, sorry. I'm going to restrict his travel to the Eastern and Southern Districts of New York and I'm going to put on this, a condition that he not have any firearms." (Tr. at 54). The Court also granted the government's request for a pen register to be placed on the defendant's telephone. (Tr. at 56).
On October 18, 2002, approximately one and a half years later, the defendant made a letter application for a modification of his bail conditions to permit him to travel to Florida, with counsel, from November 11 to 15, 2002 "so that he may aid and assist in preparation for the upcoming trial the nature of the assistance it is believed he may provide is described as being able to identify possible witnesses with whom conversations were recorded and his presence at the scene at which those conversations were held "will tend to jog his memory with regard to the details of the events which are relevant and material to his defense. . . ."
The government, in a letter response dated October 28, 2002. opposes his application.
The Court will regard the defendant's letter application as a motion as required by 18 U.S.C. § 3145. As is not infrequently the case, to avoid the possibility that an order of detention will be made, a defendant offers the less restrictive alternative of house arrest, coupled with electronic monitoring and geographic restrictions upon travel. That was the case here and an order imposing those restrictions in addition to a pen register on the defendant's telephone was made by the Magistrate Judge.
As is also not infrequently the case, sooner or later an application is made to modify those restrictions. No change of circumstance is alleged as is the case here. Without commenting upon the persuasiveness of the reasons advanced at this late date for the requested modification, suffice it to say the claim advanced that his Sixth Amendment right to counsel and the right to present witnesses and a defense would be impaired if his request were not granted is specious. If that claim had merit, then surely every defendant who is detained pretrial would suffer the deprivation of his Sixth Amendment rights.
Conditions of bail should properly be modified if a substantial change in circumstances as they existed at the time bail was fixed is clearly shown. No such change is shown here and his motion is denied.