The opinion of the court was delivered by: VAUGHN R. WALKER
Presently before the court are motions regarding the continued pretrial detention of three of the five defendants in this case. Mike Juiming Chen ("Mike"), whom the court has already ordered released on conditions, moves for reduction in the amount of bail imposed by the court. Kelly Paokui Chen ("Kelly") renews her motion for pretrial release. Kelly's detention was ordered by the Ninth Circuit in January, and Kelly's present motion is based on the changed circumstances in this case since that order. Lucy Chen ("Lucy") moves for pretrial release for the first time since she was detained on June 21, 1991. For the reasons discussed below, defendants' motions are GRANTED.
The court has previously addressed these issues in connection with this case on no less than four other occasions, and the parties as well as the court have grown familiar with the law governing pretrial release. The Bail Reform Act of 1984, 18 USC §§ 3141, et seq., requires the release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required and the safety of the community. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir 1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir 1985). Only in rare circumstances should release be denied, and doubts regarding the propriety of release should be resolved in favor of release. Gebro, 948 F.2d at 1121; Motamedi, 767 F.2d at 1405. The Bail Reform Act requires release unless no combination of conditions can reasonably assure the appearance of the person and the safety of the community. 18 USC § 3142.
In determining whether to detain or release a defendant, the court is to consider (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 person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community should the person be released. 18 USC § 3142(g).
In cases where there is probable cause to believe that the person detained has committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 USC §§ 801, et seq., or the Controlled Substances Import and Export Act, 21 USC §§ 951, et seq., the court is to begin its inquiry into the propriety of detention with a rebuttable presumption that no combination of conditions will reasonably assure the appearance of the person or the safety of the community. 18 USC § 3142(e). The indictment itself is sufficient to support a finding of probable cause. United States v. Suppa, 799 F.2d 115, 119 (3d Cir 1986); United States v. Harris, 732 F. Supp 1027, 1033 (ND Cal 1990). The statutory presumption merely works to shift the burden of production of evidence to the defendant. United States v. Mesher, 707 F. Supp 1224, 1225 (D Or 1989); United States v. Moore, 607 F. Supp 489, 497 (ND Cal 1985). The ultimate burden of persuasion remains on the government, Mesher, 707 F. Supp at 1225, and the burden placed on the defendant to rebut the presumption is small. United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir 1991). The defendant need only produce "some credible evidence forming a basis for his contention that he will appear and not pose a threat to the community in order to rebut the presumption." United States v. Thomas, 667 F. Supp 727, 728 (D Or 1987); Dillon, 938 F.2d at 1416.
As to the history and characteristics of the person, the court may consider the defendant's character, physical and mental condition, family and community ties, past conduct, history relating to drug and alcohol abuse, prior criminal history, and other factors. Gebro, 948 F.2d at 1121. Alienage is a factor which may be taken into account, but by itself cannot be determinative. Motamedi, 767 F.2d at 1408.
Nor is opportunity to flee enough to justify detention. United States v. Himler, 797 F.2d 156, 162 (3d Cir 1986). Section 3142 does not seek ironclad guarantees, and the requirement that the conditions of release "reasonably assure" a defendant's appearance cannot be read to require guarantees against flight. United States v. Portes, 786 F.2d 758, 764 n 7 (7th Cir 1985); United States v. Fortna, 769 F.2d 243, 250 (5th Cir 1985); United States v. Orta, 760 F.2d 887, 890-92 (8th Cir 1985). See also United States v. Tortora, 922 F.2d 880, 884 (1st Cir 1990) (even where the issue is the safety of the community, Congress did not require guarantees in enacting the Bail Reform Act).
The government's burden of proof is not trivial. If the defendant can rebut the statutory presumption, the government must prove that no combination of conditions can reasonably assure the safety of the community and the appearance of the defendant. The government must point to more than the indictment to justify detention, and must prove by clear and convincing evidence that the defendant poses a danger to the community or by a preponderance of the evidence that the defendant poses a flight risk. Gebro, 948 F.2d at 1121.
The Ninth Circuit's "preponderance of the evidence" standard in pretrial detention matters is more than the usual "tips the scales slightly" test applied in civil cases. To give effect to the principle that doubts regarding the propriety of release be resolved in favor of the defendant, the court is to rule against detention in close cases, applying a "clear preponderance" test. Motamedi, 767 F.2d at 1405-06. The court has previously addressed the meaning of the "clear preponderance" standard in its order of March 14, 1992, at 6-7.
In the case at bar, there can be no serious contention that release of these defendants poses a danger to the community, and the government concedes that the only issue before the court is whether a condition or combination of conditions can reasonably assure the appearance of the defendants at trial.
The court has heard evidence regarding the defendants' flight risk on numerous occasions; most recently on May 21, 1992 and again on June 17, 1992. The court is also informed by reports on the defendants prepared by the Pretrial Services Agency. Declarations have been filed by defendants' sureties, non-party witnesses and counsel for the defendants and for the government. Magistrate Judges Brazil and Brennan have also tendered rulings on some of the matters presently before the court, ...