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April 10, 2001


The opinion of the court was delivered by: Peebles, United States Magistrate Judge.


This matter is currently before the court as a result of a petition alleging the defendant's violation of the terms of his supervised release in connection with a criminal conviction for receipt of stolen firearms. Among the issues now presented, inter alia, is the question of whether defendant is entitled to make application for release on conditions pending a revocation hearing, and, if so, the time frames and standard to be applied.

As the following demonstrates, I find that defendant is entitled to be considered for release pending the revocation hearing. Based upon my assessment of the relevant factors, however, I conclude that defendant has failed to demonstrate by clear and convincing evidence that he is neither likely to flee nor a danger to any other person or the community. I have therefore ordered his detention, and am issuing this written decision in order to set forth my reasoning for doing so, as required under 18 U.S.C. § 3142(i).


The defendant in this matter was convicted in 1995 in the United States District Court for the District of North Dakota of receiving stolen firearms which have moved in interstate commerce, in violation of 18 U.S.C. § 922(j). Defendant was sentenced upon that conviction to six months of incarceration, to be followed by two years of supervised release. Following his release from prison defendant moved to Schenectady, New York, and jurisdiction over both his supervision and the underlying criminal action was transferred to this district.

On March 5, 1996 defendant was arrested by state authorities and charged with criminal sale of cocaine base ("crack"), a class B felony, in violation of N.Y. Penal Law § 220.39. Defendant was ultimately convicted on the charge, and on October 15, 1996 received a prison sentence of between five and fifteen years.

As a result of defendant's state court conviction, which the government maintains conclusively establishes that defendant did in fact violate the terms of his supervised release, a petition charging him with violation of his supervised release was filed and an arrest warrant was issued on January 6, 1997, upon authorization of then-Chief District Judge Thomas J. McAvoy. That warrant was lodged as a detainer, and resulted in defendant's placement into federal custody upon his release from state prison.

Following his arrest on the federal warrant, defendant was brought before me on March 19, 2001 for an initial appearance. At that time the government announced that it was seeking detention, and the defendant petitioned the court for release on conditions. As a result of those requests, as well as defendant's application for an adjournment, a detention hearing was conducted on March 22, 2001.*fn1 At the conclusion of that detention hearing, and after fully hearing both the government and defendant's counsel, I ordered the defendant detained.


The threshold issue presented is whether a detention hearing should be held in this case, given the nature of the proceeding. As a related subsidiary issue I must decide whether, if a hearing is warranted, defendant should be detained pending trial, or instead released on conditions.

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, 95 L.Ed.2d 697 (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, 93 L.Ed.2d 568 (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 (1st Cir.), cert. denied, 439 U.S. 821, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978)). Additionally, the court must consider the legitimate societal interest implicated by the release of defendants charged with serious crimes.*fn2 See United States v. Dillard, 214 F.3d 88, 95 (2d Cir. 2000). 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 ...

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