Opinion
Criminal Action No. 5:01-CR-077 (NAM)
July 24, 2001
RICHARD SOUTHWICK, ESQ., United States Attorney Assistant U.S. Attorney Northern District of New York.
JAMES GREENWALD, ESQ. Federal Public Defender's Office Assistant Federal Public Defender.
DETENTION ORDER
The defendant in this matter is charged by indictment with one count of unlawful possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Upon defendant's arrest pursuant to a warrant issued in connection with the filing of that indictment, defendant was brought before me on July 6, 2001 for an initial appearance and arraignment. During that appearance the government requested a detention hearing, pursuant to 18 U.S.C. § 3142(f), and a brief adjournment in order to prepare for that hearing.
A detention hearing was subsequently held on July 9, 2001. At the conclusion of that hearing I ordered the defendant detained, finding that he represents both a risk of flight and a danger to the community and that there is no condition or combination of conditions which can reasonably assure both 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 by 18 U.S.C. § 3142(i).
I. BACKGROUND
According to a pretrial services report, the defendant is thirty-five years of age and was both born and has lived for a substantial portion of his life in Florida. For the past year defendant has resided in Utica, New York with Sharon Dickson, a person he represents by him to be his aunt but who appears in actuality not to be related to him, although she could possibly be his girlfriend. The defendant is unmarried and has one child, age twelve, who lives with his mother in the Utica, New York area. Plaintiff is unemployed, although he reports working occasionally through a temporary employment agency, and in addition performs work around the Dickson household.
When questioned by pretrial services defendant acknowledged occasional alcohol consumption but denied current illegal drug use, though he admitted that from his mid-teens until 1988 he smoked marijuana on a daily basis. Ms. Dickson, however, in addition to confirming the occasional alcohol use states that Coleman is a "weekly user of marijuana and cocaine", although she does not know the extent of his drug use. The pretrial services report reflects that the defendant has a very extensive criminal history dating back to his first arrest in 1982. Defendant's record includes seven felony convictions ranging from burglary and auto theft up to forcible robbery, armed robbery, weapons possession, and drug possession. Two of those prior felony convictions involved weapons possession and/or use, including a 1988 conviction for possession of a firearm as well as a 1989 armed robbery conviction which resulted in a twelve year sentence of imprisonment. In addition to those convictions, defendant's record also includes what appear to be three separate misdemeanor convictions, involving trespass and/or petty theft. During the detention hearing the government made a proffer concerning the evidence supporting the underlying charges now facing the defendant. According to that proffer, on November 30, 2000 a police officer was called to a small convenience store in the Utica, New York vicinity to investigate a report that defendant, who was armed, was there engaged in a heated discussion with an acquaintance of his girlfriend. During that encounter the store owner was able to evacuate the premises with the other participant in the debate, leaving the defendant alone and locked in the store. The incident fortunately ended with defendant surrendering his loaded pistol to law enforcement agents responding to the call. That incident led to defendant's arrest on state law charges. Prosecution of the defendant has since been undertaken by federal authorities under the auspices of Project Safe.
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 trial or without trial is the carefully limited exception." Salerno, 481 U.S. at 755, 107 S.Ct. at 2105.
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 issues: 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. ___, 121 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).
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 as being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). In this circuit, such a crime is viewed as one of violence for purposes fo the Bail Reform Act, thereby entitling the government to a detention hearing, which it has requested. See Dillard, 214 F.3d at 97. See also 18 U.S.C. § 3142(f)(1)(A).
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. 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. 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) (McCoy, 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.
The defendant in this case is not charged with an offense giving rise to a presumption under the Bail Reform Act. The mere fact that the defendant is charged with a crime of violence entitling the government to a detention hearing under 18 U.S.C. § 3142(f)(1) alone does not suffice to trigger such a presumption. To support its request for detention, the Government must therefore carry its burden of proving danger by clear and convincing evidence, and/or risk of flight by preponderance of the evidence, without the benefit of any presumption.
This is not to say, however, that the fact that defendant is accused of a crime of violence is not an important consideration in the bail determination; indeed, to the contrary Congress has made it clear that the nature of the crime as one of violence is an important consideration, particularly on the issue of dangerousness. 18 U.S.C. § 3142(g)(1).
In its report, pretrial services has found that the defendant poses both a risk of nonappearance and a potential for danger to the community. Having reviewed the matter I concur in this assessment, and for the reasons set forth below find that defendant constitutes both a risk of flight and a danger to the community.
1. Risk of Flight
There is significant indication from defendant's background that he may present a significant risk of flight. Defendant has resided in this area for only a year and has relatively modest ties to the community. The defendant is currently unemployed. In addition to these circumstances, the defendant has provided false information concerning his present living circumstances, and there is indication that following the issuance of an arrest warrant in February of 2001 law enforcement agents had some difficulty in locating him.
My concerns about risk of flight in this case also stem from the gravity of the charges facing the defendant and the potential consequences associated with those charges. The government has indicated — although defendant disputes — that defendant may be subject to a fifteen year mandatory minimum term of imprisonment under 18 U.S.C. § 924(e), based on his prior record. Regardless of whether or not this is true, it is certainly clear that given his criminal history and the nature of this offense defendant faces a lengthy period of incarceration, if convicted.
While it is true that 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, the severity of the punishment facing the defendant is still a relevant factor that bears upon the risk of flight. 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); United States v. Davidson, No. 92 Cr-35, 1992 WL 144641, at *6 (N.D.N.Y. June 18, 1992) (McCurn, C.J.).
In sum, based upon defendant's tenuous ties to this district as well as the significant period of incarceration which he faces should he be convicted, I find that he does present a serious risk of flight.
2. Dangerousness
As pretrial services has concluded, there is also great reason to be concerned about the potential danger presented by having this defendant released into the community pending trial. Defendant has a lengthy criminal history, including multiple occasions of prior association with firearms. In addition, defendant is a user of illegal controlled substances — a factor which Congress has made clear is an important consideration in the bail inquiry (see 18 U.S.C. § 3142(g)(3)(A)), and in 1997 was convicted on a felony drug possession charge.
The nature of the instant offense and the potentially grave consequences which could have occurred as a result of defendant's possession of a loaded firearm in the setting presented on November 30, 2000 also gives rise to an indication of danger. Based upon the totality of these circumstances, I find that the defendant does present a significant danger to the community.
D. Considerations Of Conditions For Release
Having found that the defendant presents both a risk of flight and a danger to the community, I must determine whether there is any condition or combination of conditions which could reasonably assure against those risks. In this instance I cannot contemplate a set of conditions which would adequately insure against these dangers.
A listing of some of the conditions available under the Act is set forth in 18 U.S.C. § 3142(c).
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 the defendant be released, and that there are no conditions which I could impose that would reasonably assure both the defendant's appearance as required and the safety of the community.
Accordingly, it is therefore hereby 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.