Opinion
Criminal Action No. 5:01-CR-268 (NAM)
July 24, 2001
BRENDA SANNES, ESQ. United States Attorney Assistant U.S. Attorney Northern District of New York, for the government.
JAMES GREENWALD, ESQ., Federal Public Defender's Office Assistant Federal Public Defender, for defendants.
DETENTION ORDER
The defendant in this matter is charged by indictment with receipt, possession, and transporting/shipping of child pornography, in violation of 18 U.S.C. § 2252A(a). Both an initial appearance and an arraignment on the indictment were conducted by Magistrate Judge Gary L. Sharpe on June 28, 2001. During that appearance the government requested that defendant be detained, and a detention hearing was therefore ordered to be held later that same day.
The scheduled detention hearing was commenced on the afternoon of June 28, 2001 before Magistrate Judge Sharpe. Before the hearing was completed, however, it was adjourned in order to allow for the acquisition of additional information, and was later resumed before me on July 5, 2001. At the conclusion of the hearing I ordered that defendant be detained, finding that while he represents only a minimal risk of flight, if any, he poses a significant danger to the community, and there is no condition or combination of conditions which can reasonably assure the safety of the community. I am issuing this written decision in order to set forth my reasons for ordering detention, as required under 18 U.S.C. § 3142(i).
I. BACKGROUND
According to the pretrial services report and addendum prepared in this matter, the defendant is thirty-six years of age and a lifelong resident of this community. Coffey is married, and together with his wife has one son, age fourteen, and three daughters, ages eleven, eight and one. The defendant is unemployed, and has not worked since 1998. Coffey's wife, however, is employed, and as a result the defendant has primary responsibility for care of his children while his wife is at work.
The pretrial services report reflects that the defendant has two criminal convictions, although both date back several years. In 1984 defendant was convicted in Onondaga County Court of sexual abuse in the first degree, in violation of N.Y. Penal Law § 130.65. As a result of that conviction, defendant received a sentence of six months incarceration and five years of probation, from which he was discharged on the maximum expiration date, apparently without incident. In August of 1985 defendant was convicted of attempted criminal mischief in the fourth degree, a misdemeanor. That conviction resulted in a conditional discharge.
The circumstances underlying that incident are extremely relevant to the detention inquiry, and will be more fully recited elsewhere in this opinion. See p. 15, post.
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 with multiple offenses related to the receipt, possession and shipment of child pornography, in violation of 18 U.S.C. § 2252A(a). Since those offenses fall within the Bail Reform Act's explicit definition of "crime of violence" (see 18 U.S.C. § 3156(a)(4)(C)), the government is entitled to a detention hearing, which it has requested. 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. 17105, ___ 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, 2000 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.
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 initial report, in which placing defendant back into his home with appropriate conditions was under consideration, pretrial services recommended that this defendant be detained as representing a risk of danger to others and to the community. When as an alternative arrangement it was suggested that the defendant reside with his mother, pretrial services altered that recommendation, finding that through the imposition of stringent conditions the danger posed by the defendant could be sufficiently ameliorated to warrant release. That recommendation, however, was based upon the misapprehension that there would be no infant children located in the residence where defendant would be required to reside during the pendency of these charges. In any event, for the reasons set forth below I have respectfully rejected the suggestion that there are conditions which could adequately guarantee against the significant danger which the defendant presents to members of the community, and in particular children, should he be released.
1. Risk of Flight
The government has indicated an intention to seek enhancement of the punishment to be imposed if the defendant is convicted on the charges contained in the instant indictment, based upon his 1984 felony sex related conviction, and argues that this factor suggests the existence of a risk of flight. Because of the prior conviction, defendant could be facing a potential minimum period of incarceration of five years and a maximum of thirty, as well as a period of supervised release and a fine. See 18 U.S.C. § 2252A(b)(1).
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 there are no other indicators of flight other then the seriousness of the charges and corresponding punishment facing the defendant. The defendant is a lifelong member of the community and has strong family ties here. There is no indication in the record, despite some criminal history, that the defendant has ever shirked his responsibility to appear in court and answer criminal charges against him. In short, I am unable to find any basis to conclude that the defendant represents a significant risk of flight.
2. Dangerousness
There is, on the other hand, ample evidence in the record from which to conclude that this defendant, if released, poses danger to others within the community. As noted earlier in this opinion, defendant was convicted in 1984 of sexual abuse in the first degree. That conviction relates to acts of a sexual nature committed by the defendant on three or four separate occasions with a four-year-old niece; significantly, those acts occurred at the Beef Street residence where he has proposed to live pending trial. See Government Exh. 4.
The concerns raised by this admittedly aging conviction are heightened by several circumstances. First, the government's evidence in this case, which is extremely strong, reveals that the defendant has possessed, received and sent large quantities of hardcore child pornography, and by his own admission enjoys viewing child pornography on his computer. See Government Exhs. 1-3. This to me indicates that the defendant has not benefitted from his prior conviction or efforts to obtain treatment for his obvious problem.
Defendant's counsel forcefully argues that defendant's propensity for computer child pornography does not indicate that he is a danger, and may in fact provide a beneficial and non-threatening outlet for his inappropriate interests in children. While one could perhaps credit this theory, there is considerable indication in the record that aside from the incidents giving rise to the 1984 conviction defendant has in fact acted on his impulses toward children, and could predictably be expected to do so again if released.
During an on-line dialogue with an individual identified as "Blake 7859279033", defendant intimated that he has been involved with his daughter, though she does not any longer "like to play"; he indicates that "she feels dirty and I don't want her to", adding that "she use to [like it a lot]".
Government Exh. 3 at 3.
The inference that Coffey has had inappropriate sexual relationship with his daughter is buttressed by the daughter's statement to Detective Jeffrey Bernozzi. Bernozzi, a ten year veteran of the Onondaga County Sheriff's Department Abused Persons Unit, testified that he interviewed Coffey's eight-year-old daughter who, in his opinion, either had been a victim of sexual abuse by the defendant or had witnessed his sexual abuse of another, perhaps her sister. That opinion was based upon the fact that when Detective Bernozzi mentioned the allegations against her father the daughter became "teary eyed", and when he asked if anything like that had happened she responded, "He wouldn't do that anymore," later attempting to correct herself by saying that she did not mean to include the word "anymore". Government Exh. 7. The testimony of Detective Bernozzi and his report of the interview with defendant's daughter, in combination with the on-line dialogue previously mentioned, to me give rise to an inference that defendant has engaged in inappropriate conduct toward one or more of his daughters since the 1984 incident.
Another persuasive piece of evidence on the question of the probability of the defendant engaging in additional unlawful conduct is the letter report of Damian S. Vallelonga, Ph. D., a licenced psychologist. See Government Exh. 5. Dr. Vallelonga was asked by the government to review certain materials including the pending indictment in this case, defendant's statement in this case (Government Exh. 1), a report of the analysis of defendant's computer (Government Exh. 2), the defendant's computer chat logs (Government Exh. 3), and defendant's statement in the 1984 case (Government Exh. 4). Id. at 1. Based upon his review of those documents and his vast background in dealing with adult child molesters, Dr. Vallelonga has opined that the defendant is a pedophile and is likely to reoffend. Id. Dr. Vallelonga also characterizes Coffey as a "predatory type of offender as opposed to an opportunistic one", explaining that by his actions Coffey demonstrated that he actively seeks out victims, rather than merely taking advantage of opportunities presented. Id. at 4.
Because I find substantial reason to believe that defendant is a pedophile and a recidivist who cannot control his impulses notwithstanding the threat of criminal prosecution, I conclude that he represents a danger to the community.
D. Considerations Of Conditions For Release
Having found that the defendant presents a danger to the community, I must next determine whether there is any condition or combination of conditions which could reasonably assure the safety of the community. In this instance the conditions urged by the defendant, and in part recommended by pretrial services, would provide that the defendant be released on an unsecured bond in the amount of $20,000 into the custody of Nina Bacon, his mother, to reside at 4712 Beef Street, Syracuse, New York 13215. Defendant indicates that he would be willing to agree to whatever further conditions would be deemed appropriate by the court, short of detention, including home confinement and electronic monitoring.
A listing of some of the conditions available under the Act is set forth in 18 U.S.C. § 3142(c).
The suggestion of a bond, while perhaps appropriate to deal with the minimal risk of flight posed based on the gravity of the consequences facing the defendant should he be convicted, does not present a basis for discounting the danger which defendant presents to the community. See Ferranti, 66 F.3d at 543; Rodriguez, 950 F.2d at 89. I must therefore examine the other conditions available to determine whether any conditions, either independently or in combination, can minimize the danger which defendant poses to the community.
At first blush, the additional proposal that defendant be relegated to the custody of his mother, Nina Bacon, and perhaps subject to home confinement with electronic monitoring, is appealing. That, in combination with restriction from defendant's use of or access to a computer, could perhaps be viewed as sufficiently restrictive as to eliminate or sufficiently minimize the risk of danger to the community.
Unfortunately, however, it was learned that also residing at the mother's residence is a twenty one-year-old woman with two children, ages four and two. It was also noted that the mother's residence is the very same one where the incidents forming the basis for the 1984 conviction took place. Given these circumstances, I cannot in good conscience sanction placing the defendant into that residence, and the offer that an additional condition be imposed requiring the defendant not to be present alone with the children simply does not provide me with the level of comfort which I would need in order to release the defendant.
Under these circumstances I conclude that I cannot craft a set of conditions which would adequately protect the community from 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 fact that defendant represents a danger to the community should he be released, and that there are no conditions which I can impose that would reasonably insure that danger. I recognize that what is at issue in this case is to some degree educated guesswork, in that I am required to assess the likelihood that the defendant, if released, will reoffend. Additionally, I am required to balance that probability and the consequences of those potential acts against the restraint on the liberty of the defendant, who even under the Bail Reform Act is presumptively innocent. See 18 U.S.C. § 3142(j).
Nonetheless, in this instance the defendant is charged with a crime of violence, and although that crime does not give rise under the Bail Reform Act to a presumption of risk of flight and danger to the community, it nonetheless remains an important factor in the bail analysis. And, while this may not necessarily implicate violence in the common meaning of the word, one cannot discount the significant and lasting psychological effects on minors who fall victim to predators like the defendant. See United States v. Yeaple, 605 F. Supp. 85, 87 (M.D.Pa. 1985). I believe the record amply demonstrates that there is a probability that defendant, if released, will recidivate, and I am therefore unwilling to permit his release.
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.