The opinion of the court was delivered by: Sharpe, United States Magistrate Judge.
DETENTION DECISION AND ORDER
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
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
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
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
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, 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.
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
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)
offense when the defendant is a serious risk to obstruct justice
or to threaten, injure or ...