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
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).
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 ...