Opinion
Criminal Action No. 5:01-MG-257 (GLS)
July 24, 2001
LISA FLETCHER, ESQ., United States Attorney Assistant U.S. Attorney, for the government.
MARK D. SUBEN, ESQ., Suben Law Offices, for defendants.
DETENTION ORDER
The defendant in this matter is charged by criminal complaint with multiple offenses, including conspiracy to possess with intent to distribute, and to distribute, cocaine, cocaine base ("crack cocaine") and marijuana, in violation of 21 U.S.C. § 841(a)(1) and 846 (Count I); possession of a firearm with a removed, obliterated or altered serial number, in violation of 18 U.S.C. § 922(k) (Count IV); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count V); and being a felon in possession of a weapon, in violation of 18 U.S.C. § 922(g)(1) (Count VI). At the defendant's initial appearance before Magistrate Judge Gary L. Sharpe in connection with those charges, his detention was sought by the government, and a request for adjournment of a detention hearing was made and granted.
I subsequently conducted a detention hearing on July 2, 2001, based upon the government's request. At the conclusion of that hearing I ordered the defendant detained, finding that he represented both a risk of flight and a danger to the community and that there was no condition or combination of conditions which could reasonably assure both the defendant's appearance as required and the safety of the community. I am issuing this written decision in order to fully set forth my reasons for ordering detention, as required under 18 U.S.C. § 3142(i).
I. BACKGROUND
According to a July 2, 2001 pretrial services report, the defendant is a lifelong resident of the Syracuse, New York area and resides with his mother at 155 W. Matson Avenue, Syracuse, New York. Lewis, who is twenty-three years of age, has never been married and is the father of two children, ages four and one. Defendant is a 1997 high school graduate, although except for one month of employment he has no reported work history. The defendant appears to be in reasonably good health. When interviewed by pretrial services, Lewis denied using alcohol or any other "mood altering substance". At his detention hearing, however, his counsel noted that the defendant suffers from an apparent drug abuse problem. The pretrial services report reflects that the defendant has a relatively extensive criminal history, particularly given his age, dating back to his first arrest in August of 1997. Since that time defendant has had multiple arrests, all involving drug possession and sale, weapons possession, or both — a violation level drug conviction in 1997, a felony drug and misdemeanor weapons conviction in January of 2000 (resulting in a one year sentence of imprisonment), and a misdemeanor drug conviction in May of 2001. There are also felony drug charges pending against the defendant resulting from two separate arrests in October of 2000, although defendant's counsel reports that Lewis has entered a plea of guilty in Onondaga County Court in satisfaction of the October charges and is currently awaiting sentencing. At the detention hearing the government made a proffer concerning the evidence supporting the underlying charges facing the defendant. Those charges, as they relate to this defendant, are detailed in an affidavit of John D. Haskell, a Syracuse Police Department Special Investigations Division Detective, filed in support of the criminal complaint in this matter. See Haskell Aff. (Dkt. No. 1) ¶¶ 23-36. The government also offered various records associated with defendant's criminal history (Government Exh. 2) and transcripts of intercepted conversations between the defendant and Tiege Williams occurring on July 1, 2000, while Lewis was still incarcerated at the Jamesville Penitentiary, and again on October 14, 2000, following his release from prison. See Government Exh. 1. Both the government and the defendant were fully heard concerning the issue of detention.
II. DISCUSSION
The threshold issue presented is whether a detention hearing should be held in this case, and if not, on what conditions the defendant should be released pending trial. As a related subsidiary issue I must decide whether, if a hearing is warranted, defendant should be detained pending trial.
A. The Bail Reform Act Generally
The Bail Reform Act of 1984 (the "Act"), 18 U.S.C. § 3141 et seq., empowers a court to order a defendant's detention pending trial upon a determination that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]" 18 U.S.C. § 3142(e). The Act, which has been upheld in the face of constitutional challenge, is properly viewed as a permissible regulatory, or preventative, measure for use by the courts, rather than being punitive in nature. See United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095, 2101 (1987).
Significantly, in enacting the Bail Reform Act Congress recognized "the traditional presumption favoring pretrial release 'for the majority of Federal defendants.'" United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir.), cert. dismissed, 479 U.S. 978, 107 S.Ct. 562 (1986) (quoting S. Rep. No. 98-225, reprinted in 1984 U.S.C.C.A.N. 3182). Accordingly, the Supreme Court has observed that "[i]n our society liberty is the norm, and detention prior to
In deciding the question of detention, the court performs two important functions. First, the court exercises its historical right to preserve its jurisdiction in criminal cases by insuring that a defendant will appear as required in order to face pending charges. Berrios-Berrios, 791 F.2d at 250 (citing United States v. Abrahams, 575 F.2d 3, 5-6 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85 (1978)). Additionally, the court must consider the legitimate societal interest implicated by the release of defendants charged with serious crimes. United States v. Dillard, 214 F.3d 88, 95, 96 (2d Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1232 (2001). As a consequence, under the Act the bail inquiry is focused upon two highly relevant questions: 1) whether the defendant is likely to present a risk to flee the jurisdiction, if released; and 2) whether the defendant presents a risk of danger to the community if released, either conditionally or otherwise. See id.; see also 18 U.S.C. § 3142(e).
In United States v. Dillard, the Second Circuit specifically rejected the presumption of innocence as a counterweight to society's interest in pre-trial detention of defendants who seriously threaten the safety of the community. 214 F.3d 88, 102-03 (2d Cir. 2000), cert. denied, ___ U.S. ___, 1215 S.Ct. 1232 (2001). Congress, however, has statutorily clarified that "[n]othing in [ 18 U.S.C. § 3142] shall be construed as modifying or limiting the presumption of innocence." 18 U.S.C. § 3142(j). trial or without trial is the carefully limited exception." Salerno, 481 U.S. at 755, 107 S.Ct. at 2105.
By its very language, the Bail Reform Act demonstrates its favorable inclination toward pretrial release of federal criminal defendants. Thus, for example, the Act requires that the court must order release on personal recognizance or on unsecured appearance bond (subject to the requirement that the person not commit a crime while on release) "unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community[.]" 18 U.S.C. § 3142(b). If the court cannot find that such unconditional release will reasonably assure appearance as required or guard against danger to the community, then release shall be ordered upon "the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community," including though not limited to conditions specifically listed within the statute. 18 U.S.C. § 3142(c)(1)(B).
B. The Parties' Entitlement To A Detention Hearing
Under the Act, detention may be ordered only following a hearing. 18 U.S.C. § 3142(e),(f). The government's right to a detention hearing, however, has been carefully circumscribed by Congress, and exists in certain specifically enumerated circumstances, including when 1) the case involves a crime of violence; 2) the case involves an offense punishable by life imprisonment or death; 3) the crime charged is a drug related offense with a maximum term of imprisonment of ten years or more; 4) the defendant is charged with a felony after having been convicted of two or more prior qualifying offenses (i.e., crimes of violence, punishable by up to life imprisonment or death, or drug related offenses punishable by incarceration of at least ten years); 5) the case involves a serious risk of flight; or 6) the case involves a serious risk of obstruction or attempted obstruction of justice or intimidation of a prospective witness or juror. 18 U.S.C. § 3142(f); see also, United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988). Thus, as can be seen, dangerousness alone, in the absence of serious risk of flight, serious danger of obstruction of justice or intimidation of witnesses, or charges involving one of the specifically enumerated offenses, does not provide a basis for detention. Friedman, 837 F.2d at 49.
The defendant in this case is charged by indictment with a drug related offense with a corresponding term of imprisonment of ten years or more under 21 U.S.C. § 841. See 21 U.S.C. § 841(a)(1),(b)(1). As such, the government is entitled to a detention hearing, as it has requested. 18 U.S.C. § 3142(f)(C); see also Friedman, 837 F.2d at 49.
One or more of the other charges lodged against the defendant, including the felon in possession count under 18 U.S.C. § 922(g)(1), also independently suffice to entitle the government to a detention hearing. 18 U.S.C. § 3142(f)(1)(A); see also Dillard, 214 F.3d at 103-04.
C. Release Or Detention
In a case where a detention hearing is warranted under section 3142(f), the court must determine "whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial." Friedman, 837 F.2d at 49 (citing Berrios-Berrios, 791 F.2d at 250); see also 18 U.S.C. § 3142(e); United States v. Agnello, 101 F. Supp.2d 108, 110 (E.D.N.Y. 2000). When detention is based wholly or in part on a determination of dangerousness, that finding must be supported by clear and convincing evidence. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995); United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991); Agnello, 101 F. Supp.2d at 110 (citing, inter alia, Rodriguez); see also 18 U.S.C. § 3142(f).
The factors which a court must consider in deciding whether to detain or release a defendant, and if released under what condition or combination of conditions, are set forth in 18 U.S.C. § 3142(g). Generally speaking, those factors include examination of the nature and circumstances of the crime charged, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence against the defendant; and the defendant's personal circumstances, including family and community ties, criminal history, any indication of drug or alcohol abuse, and whether at the time of the commission of the offense or arrest the defendant was on probation, parole, or conditional release. 18 U.S.C. § 3142(g). In considering these factors at a detention hearing, the court is not bound by the rules of evidence, and may rely, inter alia, upon proffer and hearsay evidence. Ferranti, 66 F.3d at 542; Agnello, 101 F. Supp.2d at 110; see also United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) ("[i]t is well established in this circuit that proffers are permissible both in the bail determination and bail revocation contexts").
In certain types of cases, the Bail Reform Act interposes a rebuttable statutory presumption in favor of detention. 18 U.S.C. § 3142(e); see also United States v. Mercedes, No. 01-1105, ___ F.3d ___, 2001 WL 721311, at *2 (2d Cir. June 27, 2001) (per curiam). The first of those presumptions applies in limited circumstances involving a defendant charged with a crime which would entitle the government to a detention hearing under 18 U.S.C. § 3142(f)(i) and
(1) the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction has existed;
(2) the offense described in paragraph (1) of this subsection was committed while the person was on release pending trial for a Federal, State or local offense; and
(3) a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) of this subsection, whichever is later.18 U.S.C. § 3142(e).
The second component of section 3142(e) presumes that no condition or combination of conditions will reasonably protect against the risks of flight and danger in cases where there is probable cause to believe that the defendant has committed an offense carrying with it a maximum term of imprisonment of ten years or more and which is either drug related or "an offense under section 924(c) [use of firearm in conjunction with the commission of a separate felony], 956(a) [conspiracy to kill, kidnap or maim] or 2332(b) [prohibiting certain acts of terrorism] of title 18 of the United States Code." 18 U.S.C. § 3142(e). This presumption stems in part from a congressional finding that narcotics violators as a group, especially those using guns in connection with illicit drug operations, are likely to flee and to engage in further criminal conduct undeterred by the pendency of charges against them. S. Rep. No. 98-225, at *19-*20 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. The presumption is also a product of a finding of greater recidivism among persons charged with serious drug felonies. Id. When the presumption is triggered, a "strong probability arises that no form of conditional release will be adequate." Id.
When a statutory presumption is invoked, however, it imposes only a burden of production on the defendant; the burden of persuasion always remains with the government, which must establish dangerousness by clear and convincing evidence. See Mercedes, 2001 WL 721311, at *2; Rodriguez, 950 F.2d at 88; United States v. Carter, 916 F. Supp. 193, 195 (N.D.N.Y. 1996) (McAvoy, C.J.). Once rebuttal evidence is adduced, however, the presumption nonetheless continues as one of the factors to be weighed in making the detention analysis. Id.
In this case the defendant is charged with a drug offense carrying a maximum term of imprisonment of ten years or more under 21 U.S.C. § 801 et seq. Additionally, he is charged with possession of a weapon in furtherance of drug trafficking under 18 U.S.C. § 924(c)(1)(A). I find probable cause to believe that both charges properly lie, and thus will recognize a rebuttable presumption in favor of detention. 18 U.S.C. § 3142(e). Independent of this presumption, I note that in its report, pretrial services has recommended that this defendant be detained, as presenting both a risk of flight and danger to the community if released. I concur in this assessment, and for the reasons articulated below find that the defendant does constitute both a risk of flight and a danger to the community.
1. Risk of Flight
The Second Circuit has cautioned against basing a finding of risk of flight solely upon the nature and seriousness of the crime charged and, correspondingly, the extent of the potential penalty which the defendant faces. Friedman, 837 F.2d at 50 ("[i]n other cases concerning risk of flight, we have required more than evidence of the commission of a serious crime and the fact of a potentially long sentence to support a finding of risk of flight"); see also United States v. Carter, 996 F. Supp. 260, 266 (W.D.N Y 1998) (citing Friedman). The severity of the punishment facing the defendant is, however, a relevant factor which bears upon the risk of flight. See United States v. Davidson, No. 92-CR-35, 1992 WL 144641, at *6 (N.D.N.Y. June 18, 1992) (McCurn, C.J.)
In this case, the risk of flight inquiry begins with the statutory presumption favoring detention. In addition to the presumption, which was not rebutted, I find independent grounds for finding a risk of flight. As I indicated in open court, while the defendant has strong ties to this community and apparently did not take advantage of the opportunity to flee when being sought in connection with the instant charges, he does not dispute the issuance of two separate bench warrants in connection with prior prosecutions, one issued in December of 1998 but vacated some four weeks later (see Government Exh. 2), and a second which was issued in February of 2001 and apparently remained outstanding until Lewis was returned on the warrant some months later. See Pretrial Services Report.
Also factoring into the risk of flight inquiry is the severity of the consequences facing the defendant. As the government noted during its proffer, there is good reason to believe that in excess of fifty grams of cocaine base will be found attributed to the defendant, should he be convicted. If so, he will face an enhanced sentence of imprisonment including a mandatory minimum of ten years and a maximum of life. See 21 U.S.C. § 841(b)(1)(A)(iii). As the government also notes, the defendant in this case faces an additional consecutive five year period of incarceration if convicted in connection with Count V, which accuses him of possession of a firearm in furtherance of a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A).
Given the totality of these circumstances I find ample reason to believe, even absent the benefit of a presumption, that the government has satisfied its burden of demonstrating risk of flight by a preponderance of the evidence.
2. Dangerousness
On the question of dangerousness, once again the government is aided by the statutory presumption — one which was not rebutted by the defendant in this case. Even absent this presumption, there is considerable indication in the record that the defendant does indeed pose a serious risk of danger to the community. Defendant has a lengthy criminal history which includes serious drug related charges and convictions as well as a weapons possession charge. These circumstances are exacerbated by the fact that the charges now facing the defendant involve a large scale conspiracy to distribute multiple forms of drugs, as well as the use of firearms in connection with those efforts.
Particularly compelling on the issue of danger is the fact that while incarcerated in connection with the prior drug and weapons related charges defendant was communicating with his co-defendant concerning the acquisition of firearms, and later confirmed in a tape recorded conversation his possession of a firearm of the type retrieved from 155 W. Matson Ave. during the course of a search. These factors when viewed in their totality, and buttressed by the presumption which arises from the nature of these charges, suffice to convince me that the defendant does present a danger to the community.
Thankfully, although defendant was apparently in possession of the weapon on October 14, 2001 when he was pulled over and given a traffic citation — a fact of which he boasts in a conversation later that day with co-defendant Williams — use of the weapon did not come into play during the course of that stop.
D. Considerations Of Conditions For Release
Having found that the defendant presents both a risk of flight and danger to the community, I must determine whether there is any condition or combination of conditions which could reasonably insure against those dangers.
A list of some of the conditions available under the Act is set forth in 18 U.S.C. § 3142(c).
In this instance I have not been presented with, nor can I conceive of, any circumstances that would adequately insure against both dangers. As to risk of flight, no security of any definitive amount and source has been offered, and defendant's prior record, including two bench warrants, fails to provide me with any level of comfort that he will appear as required to face these charges, particularly given their severity. Moreover, I specifically reject any suggestion that the court can sufficiently mitigate against this danger by mere imposition of a requirement that financial security for defendant's appearance be posted, since the Second Circuit has noted — and logic suggests — that such security, while perhaps addressing the question of risk of flight, cannot adequately assuage concerns regarding danger to the community. Ferranti, 66 F.3d at 543; Rodriguez, 950 F.2d at 89. Given these circumstances, I find that I cannot craft a set of conditions which would adequately protect the community from the danger presented by this defendant.
III. SUMMARY AND CONCLUSION
In sum, I believe that the factors enunciated in the Bail Reform Act in this case amply demonstrate the existence of both a risk of flight and danger to the community should defendant be released, and that there are no conditions that I can impose which would reasonably insure against those dangers. Accordingly, it is therefore ORDERED, that the defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate to the extent practicable for persons awaiting or serving sentences or being held in custody pending appeal. Defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a United States Court or on request of a Government attorney, the person in charge of the corrections facility shall deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.