Among the documents located by agents at defendant's residence
was a document indicating that defendant maintained a storage
locker at a local commercial storage facility. The agents asked
for and obtained defendant's consent to search the storage
locker. Upon searching the locker, agents found recipes,
precursor chemicals and equipment necessary for the manufacture
Contemporaneous with execution of the arrest warrant upon
defendant, agents also executed seizure warrants for certain
motor vehicles, including a certain motorcycle. The motorcycle
was located in the detached garage at defendant's residence.
Upon seizing the motorcycle from the garage, agents discovered a
large safe. The agents sought and obtained a search warrant for
the safe. Pursuant to the search warrant, agents opened the safe
and found therein 2 1/2 pounds of methamphetamine and
approximately $12,900 in U.S. currency.
B. Criminal History
Defendant has several previous felony and misdemeanor
convictions, some of which involve crimes of violence. He also
has several previous arrests for offenses involving violent
behavior, which did not result in conviction.
In 1980, defendant was convicted of driving while impaired and
leaving the scene of an accident.
In 1982, defendant was convicted of felony assault in state
court and sentenced to probation. The charges in that case arose
from an altercation during which defendant stabbed the victim
with a knife.
In 1984, defendant was convicted of two separate drug
felonies, one in state court and one in federal court. Those
offenses both occurred while defendant was on probation
supervision as a result of his 1982 assault conviction.
In March 2000, defendant was arrested and charged by
indictment in state court with assault with intent to cause
physical injury with a weapon. The charges in that case arose
from an altercation defendant had with a grocery store clerk
during which defendant struck the clerk in the head with a glass
mustard jar. Defendant was convicted in December 2000 of
misdemeanor assault and was sentenced to time served.
While defendant was released on bail awaiting trial on the
March 2000 assault charge, he committed the offenses alleged in
the second indictment here, i.e., possession with intent to
distribute methamphetamine and marijuana and possession of a
firearm in furtherance of drug trafficking.
Also while defendant was on bail, he was arrested on two other
occasions. On July 19, 2000, he was arrested for criminal
mischief with intent to damage property, a misdemeanor. Those
charges were ultimately dismissed and the Court has no further
information regarding those charges. Defendant was also arrested
on August 11, 1999 and charged with cruelty to animals by the
Niagara County Sheriffs Office. That charge arose from a
domestic dispute defendant had with his girlfriend. During the
dispute, defendant picked up a cat and threw it at his
girlfriend. The charges were ultimately adjourned in
contemplation of dismissal.
Finally, the Court notes that in 1980, defendant was charged
with felony assault, but the charges were ultimately dismissed.
The Court has no further information regarding the facts and
circumstances of that arrest or the alleged conduct.
In sum, defendant has two prior drug felony convictions, one
prior violent felony conviction, one prior violent misdemeanor
conviction, and several arrests arising from violent behavior.
Defendant's two drug felonies were committed while he was on
probation supervision and the offenses alleged in the second
indictment here occurred while he was released on bail on an
unrelated state charge.
C. Personal History and Characteristics
Defendant claims to be a self-employed construction worker. He
also states that he buys and sells used cars. Defendant reported
to the Pretrial Services Officer that he has a total monthly
income of approximately $2,000, yet has a negative monthly cash
flow, as his expenses total more than $2,000 a month.
Defendant's claims regarding his poor financial situation and
his sources of his income appear inconsistent with several other
facts in the record. For example, despite a negative cash flow,
in April 2000, defendant bought his current residence. Further,
his attorney stated before the Magistrate Judge that defendant
owns two other parcels of land. Additionally, defendant has a
total of $14,800 in a bank account and a mutual fund and agents
found $12,900 cash in a safe at his residence at the time of his
arrest. Agents also found receipts for a cash transfer in excess
of $17,000 over a two-day period. Defendant also reported to the
Pretrial Services Officer that he owns two motorcycles worth a
total of $13,000. Based on the discrepancy between defendant's
reported negative clash flow and the substantial cash and
property assets that he possesses, and in light of the other
evidence seized from defendant's residence showing his
involvement in drug trafficking, the Court finds that a
substantial portion, if not all, of defendant's livelihood came
from his drug trafficking activities.
Finally, defendant admitted to the Pretrial Services Officer
that he uses methamphetamine.
Under 18 U.S.C. § 3142(f)(1)(C), the government may move for
pretrial detention of a defendant where the case involves "an
offense for which a maximum term of imprisonment of ten years or
more is prescribed in the Controlled Substances Act
(21 U.S.C. § 801 et seq.)[.]" In this case, the government moved for
detention of the defendant pending trial, pursuant to §
3142(f)(1)(C), but Magistrate Judge Foschio denied the motion
and ordered defendant released under certain conditions.
If a defendant is ordered released by a magistrate judge, the
government may, under 18 U.S.C. § 3145(a)(1), move for
revocation of the release order before the district court. Upon
such motion, the district court must perform a de novo review
of the magistrate judge's release order. United States v.
Leon, 766 F.2d 77, 80 (2d Cir. 1985) (finding that a district
court should "not simply defer to the judgment of the
magistrate, but reach its own independent conclusion"); see
also United States v. Colombo, 777 F.2d 96, 100 (2d Cir. 1985).
When making its de novo review, the district court may rely on
the record of the proceedings before the magistrate judge and
may also accept additional evidence. Colombo, 777 F.2d at 98
n. 1; Leon, 766 F.2d at 80; United States v. Delker,
757 F.2d 1390, 1395-96 (3d Cir. 1985). Here, the government has
moved this Court, pursuant to § 3145(a)(1), to revoke Magistrate
Judge Foschio's release order and to order defendant detained
pending trial, arguing that defendant presents a risk of danger
to the community.*fn1
Under 18 U.S.C. § 3142(e), where a judicial officer finds that
there is probable cause to believe that a defendant committed a
narcotics offense for which the potential term of imprisonment
is ten or more years, there is a rebuttable presumption that no
condition or combination of conditions will reasonably assure
the safety of the community. United States v. Rodriguez,
950 F.2d 85, 87 (2d Cir. 1991). An indictment establishes probable
cause to trigger the statutory presumption. Id. Thus, in cases
such as this, there is a rebuttable presumption that the
defendant poses a danger to community. Id.
Facts supporting a finding of dangerousness to the community
must "be supported by clear and convincing evidence."
18 U.S.C. § 3142(f); Rodriguez. 950 F.2d at 88. The government maintains
the burden of proving dangerousness by clear and convincing
evidence even when the statutory presumption has been invoked.
Rodriguez, 950 F.2d at 88.
Although the government retains the burden of persuasion on
this issue, "a defendant must introduce some evidence contrary
to the presumed fact in order to rebut the presumption." Id.
at 88 (citing United States v. Martir, 782 F.2d 1141, 1144 (2d
Cir. 1986)). "Once a defendant introduces rebuttal evidence, the
presumption, rather than disappearing altogether, continues to
be weighed along with other factors to be considered when
deciding whether to release a defendant." Id.
For purposes of the § 3142 determination, the danger that the
defendant poses to the community need not arise from or have a
nexus with the offenses charged in the indictment. Id. In
other words, the sole question is whether the defendant is a
danger to others, regardless of whether the danger is related to
drug trafficking. Id. ("Shooting a man in the kneecap over a
small debt is probative of dangerousness, regardless of whether
the incident was related to drug trafficking."); United States
v. Quarterrnaine. 913 F.2d 910, 917 (11th Cir. 1990) ("[W]e
reject [defendant's] suggestion that his acts of `domestic'
violence do not support a finding of dangerousness to the
community. A willingness to strike loved ones offers probative
evidence of a tendency to violence and dangerousness toward
In determining whether there are conditions of release that
will reasonably assure the safety of the community, the Court
must consider the factors provided in 18 U.S.C. § 3142(g):
(1) The nature and circumstances of the offense
charged, including whether the offense is a crime of
violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
(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
18 U.S.C. § 3142(g).
The Second Circuit has warned that, in applying these factors
to any particular case, "the court should bear in mind that it
is only a `limited group of offenders' who should be denied bail
pending trial." United States v. Shakur, 817 F.2d 189, 195 (2d
Cir.) (quoting S.Rep. No. 225, 98th Cong., 2nd Sess. 7,
reprinted at 1984 U.S.C.C.A.N. 3182, 3189), cert. denied,
484 U.S. 840, 108 S.Ct. 128, 98 L.Ed.2d 85 (1987).
Applying the above principles to the instant case, the Court
finds that defendant should be detained. Preliminarily, the
Court notes that the presumption in 18 U.S.C. § 3142(e) is in
effect in this case, which operates as a presumption that
defendant poses a danger to the safety of the community if
released. Defendant has come forth with no evidence to rebut
this presumption. He simply argues that because the government
has now put him out of the drug trafficking business, he no
longer poses a danger to the community. This argument ignores,
however, the evidence of defendant's propensity for violent
behavior and his apparent willingness to commit crimes even when
he is under court-ordered supervision. The argument also
assumes, without evidence, that defendant cannot and will not
return to drug trafficking if he is released.
Applying the factors in 18 U.S.C. § 3142(g), the Court finds
by clear and convincing evidence that no condition or
combination of conditions will reasonably assure the safety of
the community if defendant is released. The first factor of §
3142(g) — "[t]he nature and circumstances of the offense
charged, including whether the offense involves a . . . narcotic
drug" — weighs in favor of detention. Defendant faces
substantial penalties on the charges contained in the two
indictments here. For example, on Count I of the second
indictment-possession with intent to distribute 500 grams or
more of a mixture or substance containing
methamphetamine-defendant faces a mandatory minimum sentence of
ten years and a maximum sentence of life. See
21 U.S.C. § 841(b)(1)(A).
Defendant also potentially faces certain sentencing
enhancements based on his prior drug-related felony convictions.
For example, if convicted under § 841(b)(1)(A), defendant could
face mandatory life imprisonment because he has previously been
convicted of two felony drug offenses.
The potentially lengthy sentence defendant faces, when
combined with his apparent disregard for the law, as evidenced
by his significant criminal history, leads the Court to conclude
that the defendant would not hesitate to commit further crimes
if released on bail. In other words, defendant may conclude that
he has nothing to lose by returning to his old ways.
The second factor of § 3142(g) — "the weight of the evidence
against the person" — also weighs in favor of detention. The
government's proffer shows it has an overwhelming case against
the defendant in both indictments. The charges in the first
indictment arise from drug transactions actually witnessed by an
undercover agent. The charges in the second indictment all arise
from drugs and a weapon found in defendant's possession at the
time of his arrest on the first indictment.
The third factor of § 3142(g) — "the history and
characteristics of the person" — likewise weighs in favor of
detention. As stated above, defendant has a substantial criminal
history, including two prior drug felony convictions, one prior
violent felony conviction, one prior violent misdemeanor
conviction, and several arrests arising out of violent behavior.
His two drug felony convictions were committed while he was on
probation and the offenses charged in the second indictment here
were allegedly committed while he was on bail in a pending state
court case. Thus, it appears that defendant has no qualms about
committing crimes while under court-ordered supervision.
Further, as the Court found above, it appears that at least a
substantial portion of defendant's livelihood has been dependent
on his drug trafficking activities. That fact, combined with the
fact that defendant is a methamphetamine user, makes it likely
that defendant would return to drug trafficking activity if
The last factor of § 3142(g) — "the nature and seriousness of
the danger to any person or the community that would be
posed by the person's release" mdash; weighs most heavily in
favor of detention. Defendant has a history of violent behavior.
He has a prior felony assault conviction and a recent
misdemeanor assault conviction.
The Court finds it significant that defendant has been
involved in several violent altercations within the last year.
The altercation giving rise to his recent misdemeanor assault
conviction occurred in March 2000. He was then arrested in July
2000 for destruction of property, and in August 2000 for an
offense arising from a violent domestic dispute. The Court finds
the circumstances surrounding the misdemeanor assault conviction
to be particularly probative of defendant's dangerousness. The
fact that defendant would violently strike a store clerk in the
head with a glass mustard jar is certainly probative of
dangerousness. It would appear, based on the record, that
defendant has a violent temper which he is often unable to
In sum, the Court finds by clear and convincing evidence that
no condition or combination of conditions would reasonably
assure the safety of the community if defendant is released. He
has both a past and recent history of violent behavior. Further,
in light of the substantial sentence he faces, his dependence on
drug trafficking for his livelihood, his use of methamphetamine,
and his history of disregarding conditions of court-ordered
supervision, it is likely that defendant will return to drug
trafficking if released. These facts, when combined with the
statutory presumption of dangerousness, warrant detention of the
defendant pending trial.
For the reasons stated, the Court hereby revokes the
Magistrate Judge's release orders and orders that defendant be
detained pending trial on these two indictments.
The Court further orders that defendant be committed to the
custody of the Attorney General for confinement in a corrections
facility separate, to the extent practical, from persons
awaiting or serving sentences or being held in custody pending
The Court further orders that defendant be afforded reasonable
opportunity for private consultation with counsel.
Finally, the Court directs that on order of a Court of the
United States or on request of an attorney for the government,
the person in charge of the corrections facility in which
defendant is confined deliver defendant to a United States
Marshal for the purpose of appearance in connection with any
IT IS SO ORDERED.