Opinion
08 Mag. 1228 (HBP).
June 11, 2008
OPINION AND ORDER
I. Introduction
I write to resolve the government's application to detain Corey Jones (the "Defendant") pending the trial of this matter. For the reasons set forth below, the government's application is granted.
II. Facts
A. Background
Sometime between approximately 11:30 p.m. on Friday, May 23, 2008 and 12:15 a.m. on Saturday, May 24, 2008, a government informant (the "Victim"), was shot approximately five times in the vicinity of West 165th Street and Ogden Avenue in the Bronx. The Victim was transported to Lincoln Hospital where he subsequently died from his wounds. On May 24, 2008, members of the New York City Police Department arrested Corey Jones for the shooting and charged him with murder in the second degree, criminal possession of a weapon, recklessly causing serious injury and reckless endangerment, in violation of New York Penal Law Sections 125.25, 265.03, 120.05 and 120.25, respectively.
On May 29, 2008, the United States Attorney's Office for the Southern District of New York applied for a warrant for the arrest of the Defendant on various federal charges. The Honorable Michael H. Dolinger, United States Magistrate Judge, issued the warrant that day, and the Defendant was transferred to federal custody on or about May 30, 2008. The Defendant was arraigned on a complaint that day, and the government sought to have the Defendant detained pending trial. The Defendant requested that the hearing be adjourned, and the detention hearing was scheduled for June 4, 2008.
Where, as here, the government seeks detention at a defendant's initial appearance, 18 U.S.C. § 3142(f) provides that the defendant is entitled, as a matter of right, to an adjournment of up to five business days. During, such an adjournment, however, Section 3142(f) further provides that the defendant shall be detained.
B. The Complaint
The complaint charges the Defendant in three counts. Count I charges both defendants with violating 18 U.S.C. § 1513(a)(1)(B) by killing a person for providing information concerning the commission of a federal offense or the violation of conditions of probation, supervised release, parole or release pending trial. Count II charges both defendants with violating 18 U.S.C. § 924(c)(1)(A)(iii) by using a firearm in the course of committing a crime of violence that can be prosecuted in a federal court. Count III charges both defendants with violating 18 U.S.C. § 924(j) by using a firearm in the course of committing a crime of violence that can be prosecuted in a federal court and causing the death of a person though the use of the firearm.
The pertinent facts concerning the alleged homicide and the firearms offenses are set forth in paragraphs five and six of the complaint in which a detective with the New York City Police Department states:
5. I have spoken to law enforcement officials who told me that in or about March 2007, an individual ("the Victim") was arrested as part of an investigation into narcotics and firearms trafficking in the Bronx. Following the Victim's arrest, the Victim entered into a cooperation agreement with the Government. Pursuant to that agreement, the Victim participated in numerous purchases if illegal firearms and narcotics in the Bronx, which [led] to the arrest of a number of individuals for various violations of federal law.
6. On or about May 24, 2008, I met with a witness (the "Witness") who informed me of the following:
a. At approximately 12:00 a.m. on or about May 24, 2008, the Witness was present in the vicinity of Ogden Avenue and West 165th Street. The Witness observed an individual known to him/her as COREY JONES, a/k/a "C-Murder," arguing with the Victim. During the course of the argument, the Witness heard COREY JONES tell the Victim in substance and in part that people in the neighborhood knew that the Victim was a "snitch," and that people in the neighborhood knew that the Victim was "down with the police," or assisting law enforcement. The Witness then observed COREY JONES walk away from the Victim toward Summit Avenue.
b. Shortly thereafter, the Witness observed COREY JONES return to the vicinity of Ogden Avenue and West 165th Street with another individual known to the Witness as JASON JONES, the brother of COREY JONES. The Witness observed both JASON JONES and COREY JONES approach the Victim. A short time later, the Witness observed COREY JONES pass JASON JONES a dark colored object, which the Witness believed to be a firearm.
c. The Witness then observed JASON JONES raise his arm toward the Victim and fire a shot at the Victim, who appeared to be struck by the shot. The Witness heard JASON JONES fire multiple shots at the Victim.
The Complaint provides no other information concerning the Witness. It does not provide any information concerning his or her reliability, experience or success rate nor does it set forth facts concerning his or her ability to observe the shooter and how he or she was able to identify him. In short, as the record currently exists, virtually the entire case against the Defendant turns on the testimony of the Witness about whom almost nothing is known.
C. The Pretrial Services Report and the Evidence Adduced at the Detention Hearing
The detention hearing commenced before me on June 4, 2008 and was concluded on June 9, 2008. Prior to the hearing, the Pretrial Services Agency had prepared a report concerning the Defendant which disclosed the following facts. The Defendant is 29 years of age and a native of the Bronx. He lives with his father, brother and sister and has lived with them his entire life. He has fathered two children with his girlfriend; they are currently nine years and four months of age. He advised Pretrial Services that for the last two years he has done "miscellaneous construction work" for which he is paid "off the books" at a rate of approximately $110 per week.
The Defendant has a serious criminal record which includes two prior narcotics felonies. Specifically, petitioner was convicted in 1998 in the Supreme Court of the State of New York, on his plea of guilty, of attempted criminal sale of a controlled substance in the third degree and sentenced to five years probation. In 2001, the Defendant was convicted in this Court, again on his plea of guilty, of conspiring to sell crack cocaine in violation of 21 U.S.C. § 846; Defendant's allocution included an admission that the offense involved the use of firearms, subjecting him to an enhanced sentence pursuant to U.S.S.G. § 2D1.1(b)(1). The Honorable Gerard E. Lynch, United States District Judge, sentenced Defendant to fifty-seven months imprisonment to be followed by a three-year term of supervised release. While he was on supervised release, Defendant was charged with several violations including two assaults, the continued use of marijuana and failing to seek and maintain gainful employment. The Amended Request for Court Action, which detailed the violations and was prepared a little more than two years ago, noted:
Unfortunately, since the defendant's supervision commenced, he has struggled to maintain abstinence. Despite referrals to both out-patient and in-patient treatment programs, he has not only continued his drug use, but he has refused to engage in appropriate treatment. The defendant has been given many opportunities to address his addiction, but he has willfully refused to abide by the treatment recommendations that are being provided and has displayed a violent behavior that clearly puts others at risk.
Defendant admitted to at least one of the violations alleged, but the record does not disclose which one. As a result of the violation, Judge Lynch ordered that the Defendant be returned to jail for an additional six months.
The government has proffered that Defendant has also been convicted of the state offenses of harassment and using a dangerous instrument to cause an injury to another person. Because Defendant's "rap sheet" does not reflect such convictions, I have disregarded this aspect of the government's proffer.
At the outset of the detention hearing, the government sought detention on the ground of both risk of non-appearance and dangerousness, relying primarily on the presumption set forth in 18 U.S.C. § 3142(e). The government further argued that the presumption was buttressed by the Defendant's criminal record, which included firearms trafficking, crimes of physical violence and his poor adjustment during his term of supervised release.
Section 3142(e) provides in pertinent part that "[s]ubject to the rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . an offence under section 924(c) . . . of this title."
In response, the defense called four witnesses whose testimony, if credited, tended to exculpate Defendant. Joanne McKoy testified that she has known the Defendant for many years and was in the vicinity of the shooting at the time of the shooting speaking with friends. Contrary to the complaint, McKoy testified that there was no verbal altercation prior to the shooting and that "everything was peaceful [and] nice" at that time (Tr. at 19). McKoy testified that she was standing six to eight feet away from the Victim at the time of the shooting and that she was also struck by bullets and sustained wounds to her head and foot. McKoy testified that she did not see the Defendant in the vicinity at or before the time of the shooting. However, she also testified that she did not see the shooter (Tr. at 24).
Although McKoy testified on direct examination she had known the people with whom she spoke "for years," on cross-examination, she was unable to identify a single one by name.
"Tr." refers to the transcript of the hearing held on June 4, 2008.
In addition to McKoy, the Defendant called Yvette Vergara, Dennis Dilone and Kelly Ann Gonzalez. Vergara, Dilone and Gonzalez all testified that Defendant was with them at the time of the shooting in Vergara's apartment at 165th Street and Summit Avenue; Gonzalez testified that they were listening to music and that Defendant and Vergara were smoking marijuana "blunts" (see Tr. at 66).
In reply, the prosecution called New York City Police Detective Michael Diskin, one of the detectives assigned to investigate the shooting. Although his testimony shed no light on the identity of the shooter, Diskin did testify that other witnesses told him that the people on the street had gotten loud immediately before the shooting. Thus, his testimony, if credited, corroborates some of the events set forth in the complaint.
III. Analysis
18 U.S.C. § 3142(g) sets forth a list of factors to be considered in determining whether bail should be set for a defendant.
(g) Factors to be considered. — The judicial officer shall, in determining 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, take into account the available information concerning —
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or 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.
As noted above, because defendant is charged with violating 18 U.S.C. § 924(c), there is a statutory presumption that detention is appropriate in this case. Even without the presumption, however, the majority of the factors weigh in favor of detention.
The first factor weighs heavily against Defendant. The seriousness of the crime of murder needs no discussion. The exceptional seriousness of murdering a government informant is demonstrated by the fact that Congress has included the death penalty as a potential sentence for this offense. 18 U.S.C. §§ 1111(b), 1513(a)(2). The severity of the crime and the severity of the potential sentence create risks of dangerousness and non-appearance that weigh in favor of detention. United States v. Gotti, 358 F. Supp.2d 280, 284 (S.D.N.Y. 2005) (citing defendant's alleged involvement in several attempted murders as factor weighing in favor of detention); United States v. Cantarella, CR02-0307 (S-2)(NGG), 2002 WL 31946862 at *2 (E.D.N.Y. Nov. 26, 2002) (defendant's alleged involvement in planning a kidnapping "militate[d] in favor of pre-trial detention. . . ."); United States v. Gonzalez, 995 F. Supp. 1299, 1302 (D.N.M. 1998) (pretrial detention appropriate in capital murder case despite defendant's lack of a criminal record and willingness of family and friends to post virtually all their property as security),aff'd without opinion, 149 F.3d 1192 (10th Cir. 1998); United States v. Estela Melendez, 700 F. Supp. 82, 84 (S.D.N.Y. 1988) (evidence of defendant's participation in attempt to murder government witness cited as a factor justifying detention).
Application of the second factor — the weight of the evidence — is less clear cut. The only evidence in the record against the defendant consists of the statements of an unidentified eyewitness about whom nothing is known. Although there can be no question that the testimony of a single, uncorroborated witness can establish guilt beyond a reasonable doubt for most crimes,United States v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004);United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979), the Court of Appeals for this Circuit has also noted that:
Centuries of experience in the administration of criminal justice have shown that convictions based solely on testimony that identifies a defendant previously unknown to the witness is highly suspect. Of all the various kinds of evidence it is the least reliable, especially where unsupported by corroborating evidence.
As Glanville Williams has noted in The Proof of Guilt, (3d ed. 1963),
"In England and America most of the spectacular miscarriages have been due to wrong identification of the defendant as a culprit." Id. at 106.Jackson v. Fogg, 589 F.2d 108, 112 (2d Cir. 1978) (Lumbard, J.). Against the government's evidence, the Defendant has offered the testimony of three alibi witnesses who testified that Defendant was with them in an apartment at the time of the shooting.
Since McKoy did not see the shooter, her testimony has little, if any, probative value.
In examining the weight of the evidence, it is important to keep in mind that my function at this point is not to determine guilt or innocence or even to make a preliminary finding of guilt or innocence.
Our court has stated, however, that the weight of the evidence is the least important of the various factors. Honeyman, 470 F.2d at 474. Although the statute permits the court to consider the nature of the offense and the evidence of guilt, the statute neither requires nor permits a pretrial determination that the person is guilty. See United States v. Edson, 487 F.2d 370, 372 (1st Cir. 1973); United States v. Alston, 420 F.2d 176, 179 (D.C. Cir. 1969). These factors may be considered only in terms of the likelihood that the person will fail to appear or will pose a danger to any person or to the community. See 18 U.S.C. § 3142(g); Edson, 487 F.2d at 372. Otherwise, if the court impermissibly makes a preliminary determination of guilt, the refusal to grant release could become in substance a matter of punishment. See Alston, 420 F.2d at 179-80.United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985) (Kennedy, J.); accord United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) ("[T]he weight of the evidence is the least important [bail factor], and the statute neither requires nor permits a pretrial determination of guilt."); United States v. El-Gabrowny, S3 93 Cr. 181 (MBM), 1994 WL 9665 at *1 (S.D.N.Y. Jan. 12, 1994); see United States v. Bellomo, 944 F. Supp. 1160, 1163 (S.D.N.Y. 1996).
Limiting my consideration of the weight of the evidence to the likelihood that Defendant will appear in court and not endanger the community, I conclude that this factor weighs in favor of Defendant. Based on the limited record currently before me, it appears that Defendant has a potentially viable defense, and that the likelihood of conviction is not so great that it presents an insurmountable obstacle to pretrial release.
The third factor — Defendant's history and characteristics — weighs against pretrial release. Despite his age, defendant resides with his family and appears to have no substantial financial ties to the community. Defendant has no steady, substantial employment that would tend to keep him in the community. Although he has two children, given his modest earnings, it does not appear that he contributes to their support. Defendant has two prior felony convictions, and, if he is convicted, these convictions will, no doubt, enhance any sentence he would otherwise face. In addition, defendant was non-compliant during his most recent period of supervised release in 2005 and 2006. As noted above, the Probation Department, which supervised Defendant for eight months, concluded that Defendant had "wilfully refused to abide by the treatment recommendations that are being provided and has displayed violent behavior that clearly puts others at risk" (Amended Request for Court Action, dated February 21, 2006, at 2). Given the length of its relationship with Defendant and its neutral role as a branch of the Court, I believe that the conclusions of the Probation Department are entitled to added weight. Finally, Defendant's adjustment to supervised release was so poor that Judge Lynch revoked his term of supervised release and remanded Defendant to an additional six months of imprisonment. All these facts demonstrate that Defendant is a poor candidate for pretrial release.
I make this observation not to penalize defendant for his poverty, but to note that Defendant appears to have no concern regarding his moral and legal obligation to support his children. If an individual is unwilling to meet his obligations toward his children, I have reservations about his willingness to meet whatever obligations the Court might impose on him.
In this regard I am mindful that, according to the presentence report prepared in 2001 prior to Defendant's sentencing before Judge Lynch, Defendant did not finish high school and, no doubt, has limited employment opportunities available to him. Nevertheless, his failure to even pursue an equivalence diploma or to pursue other courses that might improve his employment prospects implies a disregard for his familial obligations.
The final factor — the risk of danger to a person or the community — also weighs against pretrial release. Although Defendant is presumptively innocent of all the charges against him, there is probable cause to believe that he, along with his brother, murdered an informant. Based on the record that currently exists, the charges currently pending against him are entirely based on the statements of a cooperating witness. Given Defendant's admitted possession or trafficking in firearms in connection with his 2001 conviction, the proclivity toward violence noted by the Probation Department and the probable cause to believe Defendant murdered an informant, there is some risk to the witness mentioned in the complaint that reinforces the statutory presumption that there is no combination of conditions that will reasonably assure the safety of the community.
Thus, the government not only enjoys the benefit of a rebuttable presumption in favor of detention, that presumption is supported here by at least three of the four relevant factors identified in Section 3142(g). The single factor that weighs in his favor has been characterized by at least one court of appeals as the least important factor. In light of the presumption, the seriousness of the crime, the Defendant's history and characteristics and the risk of danger to the community, I conclude that Defendant should be detained pending trial.
IV. Conclusion
Accordingly, for all the foregoing reasons, I conclude that Corey Jones should be detained pending the trial of the charges against him.
SO ORDERED