Under 18 U.S.C. § 3145(c), a defendant subject to detention pursuant to Section 3143(a)(2) "may be ordered released, under appropriate conditions," if two requirements are met. See also United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004). First, the district court must find "by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released" (whether subject to bail conditions or otherwise).

A defendant in Ms. Bourne's position may, however, be released if “the conditions of release set forth in § 3143(a)(1) have been met, and . . . ‘it is clearly shown that there are exceptional reasons why [her] detention would not be appropriate.'” U.S. v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) (quoting 18 U.S.C. 3145(c)). To satisfy the first prong of that test, “the defendant must show, by clear and convincing evidence, that he or she is not likely to flee or pose a danger to the safety of any other person or the community if released under appropriate conditions imposed by the Court.” U.S. v. McDuffie, 451 F.Supp.3d 281, 285 (S.D.N.Y. 2020) (brackets and quotation marks omitted).

" The Second Circuit has construed the term to mean, "a unique combination of circumstances giving rise to situations that are out of the ordinary." United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) (quoting United States v. DiSomma, 951 F.2d 494, 497 (2d Cir. 1991). In DiSomma, the Second Circuit noted that "unusual legal or factual questions" or "merely substantial questions" could be sufficient exceptional reasons, but also made clear that there was no "requirement of absolute legal novelty."

As such, the Court finds that Varsha Sabhnani was convicted of "crimes of violence" within the provision of sections 3156 and 3143. In a seminal case in this field, United States v. Lea, 360 F.3d 401 (2d Cir. 2004), it was determined that the test set forth in 18 U.S.C. § 3143(a)(2) "is a more stringent test than the one that applies to individuals who have been convicted of non-violent crimes, which requires only that the judge find `by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released. . . .'".Lea, 360 F.3d at 403 (citing 18 U.S.C. § 3143(a)(1)). Section 3143(a)(2) in effect requires the remand of the Defendant Varsha unless she can show: (1) "that there is a substantial likelihood that a motion for acquittal or new trial will be granted;" and (2) that the she is unlikely to flee or pose a danger under section 3143(a)(1); or that "exceptional circumstances" are present as will be later discussed.

Where the limited conditions enumerated above have not been satisfied, a defendant "may nevertheless be released if (1) the district court finds that the conditions of release set forth in § 3143(a)(1) have been met, and (2) 'it is clearly shown that there are exceptional reasons why [the defendant's] detention would not be appropriate.'" United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) (emphasis omitted) (quoting 18 U.S.C. § 3145(c)). The first prong requires the district court to "find[] by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released."

Defendant falls under paragraph (a)(1) as opposed to paragraph (a)(2), which outlines the standard for violent and certain narcotics crimes. See 18 U.S.C. § 3143(a)(2); see also United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004) ("[18 U.S.C. § 3143(a)(2)] is a more stringent test than the one that applies to individuals who have been convicted of non-violent crimes, which requires only that the judge find by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released"). Thus, the Court will order Defendant detained unless he overcomes the presumption of detention at the pre-sentencing stage.

Id. at *2. In denying the motion, the Posada court cited with approval United States v. Lea, 360 F.3d 401 (2d Cir. 2004), where the Court interpreted "exceptional" as meaning "a unique combination of circumstances giving rise to situations that are out of the ordinary." Id. at *4 (quoting United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004)).

The second exception requires, inter alia, “that there are exceptional reasons why such person's detention would not be appropriate.” United States v. DiSomma, 951 F.2d 494, 496 (2d Cir. 1991). “Exceptional circumstances” exist when there is “a unique combination of circumstances giving rise to situations that are out of the ordinary.” United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004). It is hard to show that exceptional circumstances apply because most defendants, by definition, are ordinary.

The Fourth Circuit has yet to define "exceptional" within the context of § 3145(c), but other circuit courts have defined the term as meaning "clearly out of the ordinary, uncommon, or rare," United States v. Little, 485 F.3d 1210, 1211 (8th Cir. 2007), and "a unique combination of circumstances giving rise to situations that are out of the ordinary." United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004).

if it is clearly shown that there are exceptional reasons why such person's detention would not be appropriate.” See United States v. Lea, 360 F.3d 401, 403 (2d Cir. 2004). In other words, if it is determined by clear and convincing evidence that an individual subject to detention under § 3143 (a)(2) is not likely to flee or pose a danger to the safety of any other person or the community if released