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U.S. v. BOORMAN

February 20, 2001

UNITED STATES OF AMERICA,
V.
RUSSELL JAMES BOORMAN, DEFENDANT.



The opinion of the court was delivered by: Arcara, District Judge.

DECISION AND ORDER

INTRODUCTION

Pursuant to an arrest warrant, defendant was arrested on September 12, 2000. During and subsequent to the arrest, law enforcement officers found defendant to be in possession of, inter alia, methamphetamine, certain precursor chemicals necessary for the manufacture of methamphetamine, over 100 marijuana plants, and a weapon. On the same day of the arrest, defendant was arraigned by United States Magistrate Judge Leslie G. Foschio. At that time, the government moved for detention of defendant pending trial, pursuant to 18 U.S.C. § 3142(f)(1)(C). The Pretrial Services Office also submitted a written report recommending that defendant be detained pending trial. At defense counsel's request, the detention hearing was adjourned until September 15, 2000.

The detention hearing commenced on September 15, 2000. At the hearing, the government proceeded by way of proffer. Following the government's proffer, defense counsel requested a continuance for the purposes of preparing a rebuttal to the government's proffer. The hearing was then continued until September 21, 2000.

On that date, defense counsel asked for another continuance and the hearing was continued until September 28, 2000. On September 28, 2000, defense counsel, proceeding by way of proffer, attempted to rebut the government's proffer. At the conclusion of the hearing, Magistrate Judge Foschio denied the government's motion for detention and set bail in the amount of $50,000, to be secured by a minimum of $25,000 cash or property. He also imposed certain other conditions and reporting requirements. The government indicated to the Magistrate Judge that it intended to appeal the release order to this Court and the Magistrate Judge therefore stayed defendant's release pending the appeal. The Magistrate Judge filed a release order on October 5, 2000, and the government's appeal was filed on October 10, 2000.

On October 11, 2000, defendant was charged in a second indictment (00-CV-185) with offenses arising from the drugs and weapon allegedly discovered to be in his possession at or around the time of his arrest on the first indictment. The four-count indictment charges defendant with one count of possession with intent to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A); one count of possession with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B); one count of possession of ephedrine with intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(d)(1); and one count of possession of a firearm in furtherance of drug trafficking crimes, in violation of 18 U.S.C. § 924(c)(1).

On October 17, 2000, defendant was arraigned by Magistrate Judge Foschio on the second indictment. The government again moved for detention of defendant pending trial and the Pretrial Services Office again submitted a written report recommending that defendant be detained. A hearing on the detention motion was held on October 25, 2000, at which time Magistrate Judge Foschio denied the government's detention motion and set bail at $250,000, to be fully secured by cash and property, with a minimum $25,000 cash. He also set certain other conditions and reporting requirements.

A de novo hearing on the appeals commenced on December 4, 2000. At the hearing, the Court asked defense counsel to provide additional information regarding defendant's prospective employment and, with defendant's consent, continued the hearing to December 7, 2000.

On December 7, 2000, the parties informed the Court that defendant was scheduled for a trial on December 13, 2000 on an unrelated state court criminal charge of felony assault. Due to the possible impact of a conviction on the state charges on the bail issue, the Court, with defendant's consent, continued the hearing to December 15, 2000.

On December 15, 2000, the parties informed the Court that defendant was convicted of misdemeanor assault in state court and was awaiting sentencing. The Court, with defendant's consent, continued the hearing to January 8, 2001.

On January 8, 2001, the parties informed the Court that defendant was scheduled for sentencing in the state court on February 2, 2001. Because the terms of the state court sentence could have possibly rendered the bail issue moot, defense counsel requested a continuance until after February 2, 2001. Accordingly, the Court continued the hearing to February 7, 2001.

On February 7, 2001, the parties informed the Court that defendant received a sentence of time served on his state court misdemeanor assault conviction. The Court then completed the hearing and reserved decision.

After considering the respective proffers of evidence at the hearing, reviewing the transcript of the proceedings before the Magistrate Judge and the submissions of the parties, and hearing argument from counsel, the Court finds, pursuant to 18 U.S.C. § 3142, that no condition or combination of conditions will reasonably assure the safety of the community if defendant is released. Accordingly, the Court revokes Magistrate Judge Foschio's release orders and orders that defendant be detained pending trial.

FINDINGS OF FACT

The Court makes these findings of fact based on the evidence presented by way of proffer at the hearings before Magistrate Judge Foschio and this Court.

A. Background and Circumstances Surrounding Charged Conduct

The conduct charged in the first indictment (00-CR-159A) arises from alleged sales in 1997 of methamphetamine and marijuana by the defendant to a cooperating witness while in the presence of an undercover agent.

The offenses charged in the second indictment (00-CR-185A) arise out of circumstances surrounding defendant's arrest on the first indictment. Defendant was arrested on the first indictment on September 12, 2000, at his home in Tonawanda, New York. During the arrest, agents found within defendant's residence a stolen shotgun and ammunition for the shotgun. Agents also found within the residence drug records, various recipes and literature dealing with the manufacture of methamphetamine, a thermos bottle containing approximately 3/4 ounce of methamphetamine, and receipts showing money transfers totaling more than $17,000 over a two-day period in September 2000. Agents further discovered ...


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