Opinion
1:18-CR-00126 EAW
2020-01-29
UNITED STATES of America, v. Titus THOMPSON, Defendant.
Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for Plaintiff. Anthony L. Pendergrass, Law Office of Anthony L. Pendergrass, Samuel P. Davis, Dolce Panepinto PC, Thearthur A. Duncan, Law Office of Thearthur A. Duncan, Buffalo, NY, for Defendant.
Emmanuel O. Ulubiyo, U.S. Attorney's Office, Buffalo, NY, for Plaintiff.
Anthony L. Pendergrass, Law Office of Anthony L. Pendergrass, Samuel P. Davis, Dolce Panepinto PC, Thearthur A. Duncan, Law Office of Thearthur A. Duncan, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. BACKGROUND
Defendant Titus Thompson ("Defendant") is charged by way of a superseding indictment returned on October 11, 2018, with the following five counts: (1) conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371 ; (2) unlawfully dealing in firearms in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a) and 924(a)(1)(D) ; (3) felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ; (4) using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) ; and (5) possession of firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(a)(i). (Dkt. 31). A jury trial is scheduled to commence on February 24, 2020. (Dkt. 124).
On October 18, 2019, Defendant filed a motion to be released on conditions. (Dkt. 133). The Government responded in opposition on October 31, 2019 (Dkt. 141), and oral argument was held before the undersigned on November 14, 2019, at which time the Court reserved decision (Dkt. 151). In addition to the filings by the parties and the oral argument, the Court has also received and considered the Pretrial Services Report prepared on or about June 11, 2018, by the United States Probation Office ("USPO"), an updated USPO Pretrial Services Report dated October 11, 2018, and a USPO memorandum dated November 8, 2019.
The parties appear to agree that the initial Pretrial Services Report recommended release on conditions, although at the time of that recommendation Defendant was only charged with one count of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (See Dkt. 2).
The pending motion is not the first time that Defendant has sought pretrial release. On May 22, 2018, Defendant appeared before United States Magistrate Judge H. Kenneth Schroeder, Jr., on the initial criminal complaint, at which time the Government moved for detention and Judge Schroeder ordered Defendant detained pending trial based on his assessment that "there are no terms and conditions that I could reasonably conclude that would not be violated by the defendant and would reasonably assure safety to the community or the community itself." (Dkt. 160 at 14; see Minute Entry 5/22/2018). On June 21, 2018, Defendant was arraigned on the initial indictment, and Judge Schroeder "reserved defendant's right to move for bail in the future based on changed circumstances." (See Minute Entry 6/21/2018). On October 4, 2018, Defendant filed a motion for release (Dkt. 25), the Government filed its response in opposition on October 10, 2018 (Dkt. 28), and there was an appearance before the undersigned on October 11, 2018, at which time the Government disclosed that a superseding indictment would be returned (Dkt. 29). As a result, Defendant's counsel suggested that the motion for release had been rendered moot and the Court accordingly issued a Text Order confirming the denial of the motion on mootness grounds. (Dkt. 34). On October 17, 2018, at the arraignment on the superseding indictment, Judge Schroeder denied Defendant's request for release because no new circumstances warranted reconsideration of the prior detention order. (See Minute Entry 10/17/2018).
II. LEGAL STANDARD
The Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq. , authorizes and sets forth the procedures for the release or detention of a person pending trial, sentence, and appeal. The procedures and standards for release or detention of a person pending trial are set forth at 18 U.S.C. § 3142. A defendant awaiting trial must be released unless the release will present a risk of flight or danger, or both, and no set of conditions can reasonably protect against those risks. See United States v. Berrios-Berrios , 791 F.2d 246, 250 (2d Cir. 1986) (explaining that the Bail Reform Act codified "traditional presumption favoring pretrial release for the majority of Federal defendants" (quotation omitted)).
Although there is "only a limited group of offenders who should be denied bail pending trial," United States v. Sabhnani , 493 F.3d 63, 75 (2d Cir. 2007) (citations and quotations omitted), when there is a "a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate," United States v. Chimurenga , 760 F.2d 400, 403 (2d Cir. 1985) (quotations omitted).
In this case, due to the nature of the charges against Defendant, there is a rebuttable presumption pursuant to 18 U.S.C. § 3142(e)(3) that no condition or combination of conditions will reasonably assure the appearance of Defendant and the safety of the community if Defendant is released. See also United States v. Contreras , 776 F.2d 51, 54-55 (2d Cir. 1985) (holding that a grand jury indictment establishes probable cause for purposes of the rebuttable presumption under the Bail Reform Act, and when faced with an indictment, a court does not need to make an independent finding of probable cause). The presumption shifts to a defendant "a limited burden of production—not a burden of persuasion—to rebut that presumption by coming forward with evidence that he does not pose a danger to the community or a risk of flight." United States v. Mercedes , 254 F.3d 433, 436 (2d Cir. 2001) (citation omitted). "[A] defendant must introduce some evidence contrary to the presumed fact[s] in order to rebut the presumption." United States v. Rodriguez , 950 F.2d 85, 88 (2d Cir. 1991) (citation omitted). If a defendant satisfies this burden of production and rebuts the presumption, it does not disappear; rather, the presumption "remains a factor to be considered among those weighed by the district court." Mercedes , 254 F.3d at 436 (citation omitted).
Even in a presumption case, at all times the Government retains the ultimate burden of persuasion. The burden of proof with respect to risk of flight is preponderance of the evidence. Id. On the other hand, the Government must demonstrate by clear and convincing evidence that a defendant should not be released due to his risk of danger. Chimurenga , 760 F.2d at 405. Clear and convincing evidence "means something more than ‘preponderance of the evidence,’ and something less than ‘beyond a reasonable doubt.’ " Id. In other words, the evidence must support a conclusion of danger to the community "with a high degree of certainty." Id.
The statutory factors that a court must consider in deciding whether a defendant has rebutted the presumption of flight and danger, and whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, are as follows:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ... or involves ... a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person's 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, the person was on probation, on parole, or on 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 person or the community that would be posed by the person's release.
18 U.S.C. § 3142(g) ; see also Mercedes , 254 F.3d at 436 ("To determine whether the presumptions of dangerousness and flight are rebutted, the district court considers ... [the factors set forth at] § 3142(g)." (citation omitted)).
In reviewing a detention order of a magistrate judge, a district judge should not simply defer to the judgment of the magistrate judge, but rather must reach her own independent conclusions. United States v. Leon , 766 F.2d 77, 80 (2d Cir. 1985). "When making its de novo review, the district court may rely on the record of the proceedings before the magistrate judge and may also accept additional evidence." United States v. Marra , 165 F. Supp. 2d 478, 481 (W.D.N.Y. 2001) (citations omitted).
There was some discussion during the oral argument before the undersigned on November 14, 2019, as to the proper standard for this Court's review given the procedural posture of Defendant's request for release and his prior requests for release. The Government appeared to take the position that release would only be warranted if the Court found a change in circumstances from the last detention determination in this case, whereas Defendant appeared to dispute whether he had an actual detention hearing before Judge Schroeder. Without deciding the parties' arguments in this regard, the Court has conducted a de novo review of whether Defendant should be detained.
III. ANALYSIS
Based upon its review of the record and the factors set forth in § 3142(g), including consideration of the rebuttable presumption created by § 3142(e)(3), the Court concludes that the Government has established by clear and convincing evidence that Defendant's release would endanger the safety of any other person and the community, and no condition or combination of conditions will reasonably protect against those risks. Accordingly, Defendant's motion seeking pretrial release (Dkt. 133) is denied.
Because the Court finds that Defendant should be detained based on his risk of danger, the Court need not and does not resolve whether Defendant should be detained because of a risk of flight.
A. Nature and Circumstances of the Offenses Charged
Defendant is charged with a firearms trafficking conspiracy and various substantive counts involving firearms violations as well as a drug offense, including a violation of 18 U.S.C. § 924(c). (Dkt. 31). As noted above, because of the nature of the charges, a rebuttable presumption exists that no condition or combination of conditions will reasonably assure the safety of the community if Defendant is released.
Defendant is alleged to have been involved in a conspiracy spanning the time period of November 2017 through May 2018, and involving at least ten other individuals. (Dkt. 31). The conspiracy allegedly involved an operation whereby over 80 firearms were purchased in Ashtabula County, Ohio, by straw purchasers who were unemployed individuals addicted to narcotics, and then the firearms were transferred to New York. (Dkt. 141 at 4). The Government contends that firearms involved in the trafficking conspiracy have been recovered from the scenes of violent crimes in Buffalo, New York, including the scene of at least one homicide. (Id. at 9).
The superseding indictment specifically alleges that Defendant possessed, on or about May 19, 2018, in his residence at 89 Parkridge Avenue, Upper Apartment, Buffalo, New York, an Omni Hybrid model, 5.56 caliber pistol, bearing serial number NS155250 purchased by co-defendant Vicky Hofstetter on or about April 22, 2018, for Robert L. Williams, Jr., from MGA ARMS, located in Perry, Ohio. (Dkt. 31 at ¶¶ 79, 82). Defendant is also specifically alleged to have possessed, on or about May 18, 2018, at the same 89 Parkridge location, a FNS-9C model, 9 mm caliber pistol, bearing serial number CSU0058308 purchased by co-defendant Jenna Redding on or about May 11, 2018, for Robert L. Williams, Jr., from MGA ARMS, located in Perry, Ohio. (Id. at ¶¶ 104, 107).
On the § 924(c) count alone, Defendant faces a mandatory minimum consecutive sentence if convicted of five years incarceration, and for the count charging a violation of 21 U.S.C. § 856(a)(1), Defendant faces a maximum potential incarceration sentence if convicted of 20 years.
B. Weight of the Evidence
The Government's case against Defendant appears to be based primarily on testimony from cooperating witnesses and the evidence seized upon execution of the search warrant at 89 Parkridge Avenue on or about May 18, 2018, that was the subject of an evidentiary hearing before the undersigned ultimately resulting in the denial of Defendant's motion to suppress by Decision and Order entered January 24, 2020. (Dkt. 191). As alleged in the superseding indictment, included among the evidence seized from 89 Parkridge Avenue were two firearms that the Government alleges were purchased by straw purchasers in Ohio as part of the firearms trafficking conspiracy. (Dkt. 31 at ¶¶ 79, 82, 104, 107). Also recovered were numerous other firearms and ammunition, as well as paraphernalia indicative of the trafficking of large amounts of cocaine. (Dkt. 141 at 8-9, 10).
Defendant contends that there is no forensic evidence linking him to the items seized at 89 Parkridge Avenue, and in fact Defendant's brother pleaded guilty in state court to possession of the firearms discovered in the upper apartment. (Dkt. 133 at ¶ 12).
C. History and Characteristics
According to the Pretrial Services Report as updated on October 11, 2018, Defendant is 34 years old. He has resided in the Buffalo and Rochester areas for the past approximate ten years, including during the past three years prior to his detention with his girlfriend of approximately five years in Rochester, New York. He has two children (approximate ages 15 and 3) from prior relationships.
Defendant received his General Education Diploma in 2008, and he owns several properties that generate rental income. He also has ownership interests in businesses in Buffalo and Rochester. The Pretrial Services Report reported a fairly significant net worth.
Defendant's criminal history involves two prior felony convictions. His first felony conviction occurred in October 2007, when Defendant pleaded guilty to a Class C felony in state court involving an attempted assault with a weapon. Defendant was sentenced to 42 months incarceration and 5 years post release supervision. According to the Pretrial Services Report, Defendant was released to parole supervision on or about March 12, 2010. Approximately one year later, while on parole for the October 2007 conviction, on or about May 11, 2011, Defendant was charged with a felony drug crime, and on November 18, 2011, he pleaded guilty to a Class D felony in state court for which he was sentenced to 30 months incarceration and two years post release supervision. According to the Pretrial Services Report, Defendant's parole was revoked in October 2015 and again in July 2017. Information provided by the USPO subsequent to the November 14, 2019, oral argument suggests that while the USPO was unable to obtain any further details concerning the October 2015 parole revocation, the July 2017 parole revocation related to a technical violation of parole where Defendant was driving without a license. The traffic stop that led to that violation involved a K-9 alert to Defendant's vehicle, but no drugs were found.
D. Nature of the Danger
The Government argues that based upon Defendant's alleged past conduct and current charges, he presents a danger that no condition could protect against. Defendant argues that there is no basis to conclude that he poses any type of present danger if released with appropriate bail conditions.
E. Analysis of § 3142(g) Factors
In addition to the rebuttable presumption of danger, weighing in favor of Defendant's detention are the following considerations: Defendant is facing very serious charges, including a firearms trafficking conspiracy that allegedly resulted in significant harm to the Buffalo community; Defendant's potential imprisonment range is significant, including a mandatory minimum incarceration sentence that must be imposed consecutively if convicted of the § 924(c) count; the weight of the evidence appears substantial, including the significant number of firearms and drug paraphernalia seized from 89 Parkridge Avenue; Defendant's history reflects two prior state court felony convictions—one for attempted assault with a weapon and the other being a drug crime; and Defendant repeatedly violated parole conditions, including committing his second felony while on parole for his first felony conviction.
The Court has considered the fact that Defendant has strong ties to the Rochester and Buffalo communities, and he has fairly significant assets that could be utilized to secure his release. Furthermore, the Court is mindful that Defendant is presumed innocent and his liberty is being infringed while under that presumption of innocence. Nonetheless, those factors do not rebut the presumption in favor of detention. The Government has demonstrated by clear and convincing evidence that there are no conditions that would reasonably protect against the danger posed to others and the community by Defendant if released. No bail package, even one secured by Defendant's assets, could protect against the risk of danger.
F. Constitutional Considerations
Finally, to the extent Defendant has based his motion on alleged constitutional violations related to the length of his pretrial detention, the Court disagrees that this serves as a basis for relief. "Pretrial detention constitutes punishment in violation of the Fifth Amendment's Due Process Clause when it is excessive in relation to non-punitive purposes of detention, such as preventing danger to the community or ensuring a defendant's presence at trial." United States v. Hill , 462 F. App'x 125, 126 (2d Cir. 2012) (alterations, quotations, and citations omitted). "To determine whether the length of pretrial detention has become unconstitutionally excessive, a court must weigh: (1) its length, (2) the extent of the prosecution's responsibility for delay of the trial, (3) the gravity of the charges, and (4) the strength of the evidence upon which detention was based, i.e. , the evidence of risk of flight and dangerousness." Id. (quoting United States v. El–Hage , 213 F.3d 74, 79-80 (2d Cir. 2000) ). "Due process sets no bright-line limit on the length of pretrial confinement. Thus, the length of detention will rarely by itself offend due process." Id. at 127 (alteration, quotations, and citations omitted). To determine if a due process violation has occurred, the court reviews "the totality of the circumstances." Id. (citations omitted).
A review of the totality of circumstances in this case leads the Court to conclude that there is no constitutional violation here. Although Defendant has been detained since on or about May 22, 2018, nothing in the record shows that the Government has caused intentional or unwarranted delay. Rather, a significant portion of the delay is attributable to Defendant's change in counsel and corresponding change in litigation strategy. Moreover, a trial is scheduled to proceed in less than one month. And again, Defendant is facing significant charges and the evidence of his danger, based upon the nature of the charges, his prior criminal record, and the strength of the evidence, is substantial. These circumstances conspire to defeat Defendant's argument that his pretrial detention is unconstitutional.
IV. CONCLUSION
For the foregoing reasons, Defendant's motion for pretrial release (Dkt. 133) is denied.
SO ORDERED.