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April 13, 2001


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


I. Introduction

Pending is the government's motion to detain Cornelius Carswell. After a hearing, the court found clear and convincing evidence that Carswell was a danger to the community, but not a flight risk. Despite that finding, the court ordered temporary detention and reserved decision on several issues, most of which implicate the court's authority to detain at all. The parties were then afforded an opportunity to supplement the record, and did so.

The issues are as follows: (1) whether the court may consider an uncharged allegation that a felon possessed a shotgun, a crime of violence mandating a detention hearing (see 18 U.S.C. § 3142(f)(1)(A) (2000)); (2) whether an indictment for felonious possession of a shotgun shell charges a crime of violence mandating a detention hearing (see 18 U.S.C. § 3142(f)(1)(A)); (3) whether a New York State youthful offender adjudication for robbery may serve as a predicate crime of violence mandating a detention hearing (see 18 U.S.C. § 3142(f)(1)(D)); and (4) whether the court may consider bases for detention other than those raised by the government prior to the hearing.

II. Facts

Carswell was indicted for possession of ammunition (a shotgun shell) as a convicted felon in violation of 18 U.S.C. § 922(g)(1). At his arraignment, the government moved for detention pursuant to 18 U.S.C. § 3142(f)(1)(A) (crime of violence), and requested a continuance. The court scheduled a hearing, and notified the parties that they should be prepared to address whether United States v. Dillard, 214 F.3d 88 (2d Cir.), cert. den., ___ U.S. ___, 121 S.Ct. 1232, 149 L.Ed.2d 141 (2001) compels the conclusion that felonious possession of a shotgun shell constitutes a crime of violence, thereby permitting a detention hearing in the first place.

At the hearing, the court received evidence by proffer and exhibits from the government and Carswell, and adopted the undisputed facts contained in the Pretrial Services Report ("PSR").*fn1 The record was later supplemented by a PSR Addendum containing additional details of Carswell's criminal history.

The evidence demonstrates that in the early morning hours of November 20, 2000, Shermell Sherman heard a banging on her apartment door, went to investigate, and found that her former paramour, Carswell, was seeking entry. When she refused to let him in, Carswell angrily threatened that he would return. He then retrieved a shotgun from a street peddler, who had earlier offered it for sale, returned to Sherman's apartment, and twice discharged the weapon into the door. The police later discovered that the shots had penetrated Sherman's door and struck her refrigerator.

After shooting, Carswell returned the gun to the peddler, and fled. He was arrested the next morning, confessed and was then charged with several state offenses. He was subsequently indicted by a federal grand jury for possession of ammunition (shotgun shell) as a convicted felon.

During the detention hearing, the government played an audio tape of Sherman's 911 call, recorded in the midst of her ordeal. Clearly, she was distraught and feared for her life. Carswell countered, however, that Sherman's fear had diminished considerably as demonstrated by her frequent post-arrest jail visits, the last of which had occurred shortly before the hearing. After the hearing, Sherman wrote the court requesting Carswell's release.

Carswell, twenty-eight years old, is a lifetime Syracuse resident. He has three children from two non-traditional relationships, and his children and their mothers reside in Syracuse. Prior to his arrest, Carswell worked as a welder.

Carswell has a violent criminal history. In 1990, he was arrested for robbery, assault and possession of a weapon after he struck his victim in the head and back with a wooden fence post and stole his bicycle. He plead guilty to robbery and was adjudicated a youthful offender and sentenced to five years probation.*fn2 While on probation, he was again arrested for robbery and criminal possession of a weapon. He and two accomplices robbed a gas station while armed with knifes. They threatened the lives of two victims inside the station, and stole a wallet. Carswell and another of the accomplices actually brandished the knives. Carswell was subsequently convicted of first degree robbery and sentenced to three to nine years in state prison. He was paroled in 1996, and discharged from parole in 1999. After his discharge, he was arrested and convicted for a petty marijuana offense, arrested for criminal impersonation and aggravated un-licenced operation (misdemeanors), and arrested for the instant offense. The misdemeanor arrests are pending in state court.

At the commencement of the detention hearing and after receipt of the PSR, the government moved to supplement the basis for its detention motion, citing 18 U.S.C. § 3142(f)(1)(D) (two prior convictions for crimes of violence). Carswell objected, asserting that his 1991 youthful offender adjudication could not be considered. After the hearing, the government filed a memorandum and sought to further supplement its motion, asserting 18 U.S.C. § 3142(f)(2)(B) (serious risk to threaten, injure or intimidate a prospective witness). The government alleges that Sherman would be at serious risk if the court released Carswell.

III. Analysis

A. General Bail Principles

A defendant's release is governed by the 1984 Bail Reform Act, 18 U.S.C. § 3141 et. seq. See also, Fed.R.Cr.P. 46(a). In general, the court must release a defendant on personal recognizance, unsecured bond, or specified conditions, whichever is the least restrictive necessary to assure the defendant's appearance and the safety of others and the community. 18 U.S.C. § 3142(a)(1-2)(b)(c). The court may detain, however, but only under restricted circumstances and after a hearing following carefully delineated procedures. See 18 U.S.C. § 3142(a)(4)(e)(f).

The rules governing the actual hearing and the ultimate detention decision are now well established. The evidence may be introduced by proffer since normal evidentiary rules do not apply. 18 U.S.C. § 3142(f); United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995) (citing United States v. Salerno, 481 U.S. 739, 743, 107 S.Ct. 2095, 2099, 95 L.Ed.2d 697 (1987)). Under certain circumstances, including charges involving violence or any felony when committed by a defendant who has two predicate violent convictions, the statute creates a rebuttable presumption that there is no condition or combination of conditions that will preclude flight and dangerousness. 18 U.S.C. § 3142(e)(f)(1)(A-D). Despite that presumption, the government retains the burden of proof, by clear and convincing evidence as to dangerousness, and by a preponderance of the evidence as to flight. § 3142(f); Ferranti, 66 F.3d at 542; United States v. Chimurenga, 760 F.2d 400, 405-06 (2d Cir. 1985). Clear and convincing evidence is more than a preponderance, but means something less than "beyond a reasonable doubt," instead requiring "that the evidence support such a conclusion with a high degree of certainty." Chimurenga at 405 (quoting Addington v. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 1812, 60 L.Ed.2d 323 (1979)).

If the defendant presents rebuttal evidence, the presumption does not disappear completely, but continues to be weighed along with other factors. United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). Those other factors are recited in the statute and include the nature and circumstances of the charged offense, the weight of the evidence, the nature and characteristics of the defendant, the nature and seriousness of the risk to the community, and the risk of flight. 18 U.S.C. § 3142(g); see also, United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985). Except for the absence of the statutory presumption, the same principles govern a hearing based upon a defendant's flight risk or his risk to obstruct justice or to threaten, intimidate or injure witnesses or jurors. See 18 U.S.C. § 3142(f)(2).

As to flight and danger, various factors govern the court's consideration. In order to detain for flight, the court must determine whether the defendant is likely to flee the jurisdiction if released, and whether any release conditions will reasonably guard against that propensity. 18 U.S.C. § 3142(e); United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986). Regarding dangerousness, the Bail Reform Act is the Congressional expression of concern about a group of dangerous defendants as to whom neither stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community. Thus, "[w]here there is a strong probability that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate." United States v. Colombo, 777 F.2d 96, 98-99 (2d Cir. 1985). And, simply prohibiting a defendant from "committing further crimes" is an insufficient condition of release to protect the public from dangerousness. Id. at 100; see also, United States v. Ferranti, 66 F.3d at 544. Furthermore, release in cases involving dangerousness risks injury to others while release in cases involving flight risks only a loss of a conviction. United States v. Orena, 986 F.2d 628, 630 (2d Cir. 1993). So too, the possession of a dangerous weapon demonstrates a capacity for violence. Id. at 630.

Recidivism was a substantial motivating factor leading to the Congressional enactment of the Bail Reform Act. As the Supreme Court observed in United States v. Salerno, 481 U.S. 739, 742, 107 S.Ct. 2095, 2098, 95 L.Ed.2d 697 (1987), "[r]esponding to the `alarming problem of crimes committed by persons on release,' Congress formulated the Bail Reform Act of 1984 as the solution to a bail crisis in federal courts." (internal quotation marks omitted). The Court upheld the Act's provisions permitting detention of those who are dangerous as long as procedural safeguards are met. Id. at 750, 107 S.Ct. at 2103. And again, elaborate conditions dependent upon good faith compliance are sometimes insufficient when a defendant's criminal history provides no basis for believing good faith will be forthcoming. United States v. Tortora, 922 F.2d 880, 886-87 (1st Cir. 1990).

Having recited the principles governing both the hearing and the ultimate detention decision, the court turns to the limits on judicial authority to conduct a hearing and consider detention in the first place.

B. Limits On Judicial Detention Authority

1. Detention Authority Limited To Charged Crimes

The language employed by Congress in the Bail Reform Act is not always clear, and is therefore subject to interpretation. Without question, the statute mandates release by the least restrictive means necessary to assure appearance and public safety. 18 U.S.C. § 3142(a)(1-2)(b)(c). Detention is the last alternative, and must be specifically authorized by the statute. 18 U.S.C. § 3142(a)(4)(e)(f). The court must hold a detention hearing in six categories of cases that involve: (1) violent crimes; (2) crimes penalized by life imprisonment or death; (3) drug offenses penalized by sentences of ten years or more; (4) any felony if the defendant has been convicted of two or more predicate offenses in any of the first three categories; (5) any offense when the defendant is a serious flight risk; and, (6) any offense when the defendant is a serious risk to obstruct justice or to threaten, injure or ...

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