46 F. 3d 1132 - United States v. C Bennett

Before: NORRIS and DAUGHTREY, Circuit Judges; and FEIKENS, District Judge.*

The defendant appeals a district court order affirming a magistrate judge's order that he be detained pending trial in this drug conspiracy case. The defendant has filed a brief in support of release; the government has filed a brief in opposition. The defendant also moves for release pending disposition of his appeal. The government has filed a response in opposition.

In support of release, the defendant claims to have been the victim of disparate treatment by the prosecution. This claim is without merit. The factors to be considered in determining whether to release a defendant pending trial are set forth in 18 U.S.C. Sec. 3142(g). The release of a co-defendant, or defendants in other cases, is not one of those factors. See United States v. Cantu, 935 F.2d 950 (8th Cir.1991). Neither do we find that the defendant was entitled, as he alleges, to a new evidentiary hearing as provided under 18 U.S.C. Sec. 3142(f). See United States v. Hare, 873 F.2d 796, 799 (5th Cir.1989) (testimony of defendant's friends and family is not new evidence).

The defendant does not dispute that the statutory presumption in favor of pretrial detention is triggered in this case. See 18 U.S.C. Sec. 3142(e). He claims, however, that the district court failed to properly consider the evidence he offered to rebut the presumption. The mere presentation of some evidence contrary to the presumption in Sec. 1342(e) does not automatically destroy it and, "in making its ultimate decision, the court may still consider the finding by Congress that drug offenders pose a special risk of flight and dangerousness to society." United States v. Hare, 873 F.2d at 798; see also United States v. Martir, 782 F.2d 1141, 1146 (2nd Cir.1986). Upon consideration of the facts and arguments presented, we conclude that the district court did not err in denying pretrial release. See United States v. Hazime, 762 F.2d 34 (6th Cir.1985).

It therefore is ORDERED that the district court's order denying release is affirmed. The defendant's motion for release pending disposition of his appeal is denied as moot.