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U.S. v. LEWIS

June 13, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMAR LEWIS, Defendant.



The opinion of the court was delivered by: MARIAN W. PAYSON, Magistrate Judge

DECISION & ORDER

The defendant Jamar Lewis was arrested on June 8, 2005, and charged in a criminal complaint dated June 7, 2005 with narcotics distribution and narcotics conspiracy, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The charges arise from alleged activities during the period December 2004 to June 2005.

At the initial appearance on the complaint, counsel for the government moved to detain Lewis on three separate grounds: first, under 18 U.S.C. § 3142(f)(1)(B) because he has been charged with an offense for which the maximum penalty is life imprisonment; second, under 18 U.S.C. § 3142(f)(1)(C) because he has been charged with a narcotics offense under the Controlled Substances Act (21 U.S.C. §§ 801, et seq.) for which the maximum term of imprisonment is 10 years or more; and, third, under 18 U.S.C. § 3142(f)(2)(A) because he poses a serious risk of flight.*fn1 The government alleges that there exist no conditions or combination of conditions that will reasonably assure the appearance of the defendant as required and the safety of the community. This Court's obligation under the Bail Reform Act (18 U.S.C. §§ 3141 et seq.) is to set "the least restrictive . . . condition, or combination of conditions, that . . . will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B).

  This case also gives rise to a statutory presumption under 18 U.S.C. § 3142(e) that there are no conditions or combination of conditions which will both assure the appearance of the defendant as required and the safety of the community. Congress has determined that a presumption of detention should arise in certain cases, namely, where the court finds there is probable cause to believe that the defendant has committed a federal drug offense under the Controlled Substance Act for which a maximum prison term of 10 years or more is prescribed. See 18 U.S.C. § 3142(e). If the defendant has been indicted, that indictment satisfies the requirement of a probable cause finding. United States v. Contreras, 776 F.2d 51, 54-55 (2d Cir. 1985). If the defendant has not been indicted, the court must determine whether probable cause exists. If so, the government may rely on the presumption; if not, then no presumption of detention shall exist.

  This Court conducted a detention hearing on June 10, 2005. Both the government and the defendant proceeded by proffer. See United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995) (government may proceed by proffer in detention hearing); United States v. Martir, 782 F.2d 1141, 1147 (2d Cir. 1986) (judge must ensure reliability of evidence proffered by "selectively insisting upon the production of the underlying evidence or evidentiary sources where their accuracy is in question"). This Court has considered the extensive presentations of the facts relating to the issues before the Court, as well as the provisions of the Bail Reform Act (the "Act") and the relevant law concerning the Act. This Court has also considered a report prepared by the Pretrial Services Agency, dated June 9, 2005, the contents of which are hereby incorporated by reference, and the complaint in the instant case dated June 7, 2005. The Pretrial Services Agency report recommends that Lewis be detained, concluding that "[t]here are no conditions or combination of conditions available that would adequately address the risk of danger issues identified."

  With respect to the government's motion, this Court has reviewed whether the government has met its burden on its application for detention. I note that the burden of proof on the government's motion is to prove by a preponderance of the evidence that there are no conditions or combination of conditions that will reasonably assure the presence of this defendant at subsequent court appearances and ultimately at trial. See United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987). The government also has the burden of proving by clear and convincing evidence that the defendant poses a danger to another person or the community. See 18 U.S.C. § 3142(f); United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991).

  In determining whether there are conditions of release which will reasonably assure the appearance of the defendant as required and the safety of any other person or the community, this Court is required to consider the following factors:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involving a narcotic drug;
(2) the weight of the evidence against the defendant;
(3) the history and characteristics of the defendant, including his 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, record concerning court appearances, and whether at the time of the current offense or arrest, the defendant was on probation, parole, or any other release pending trial, sentencing, appeal or completion of sentence; and,
(4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.
18 U.S.C. § 3142(g). As mandated, I have considered available information concerning these factors as provided in the proffers made at the detention hearing and in the Pretrial Service Agency report.

  The defendant Jamar Lewis is a twenty-seven year-old male, who is a lifelong resident of Rochester, New York (the district of arrest and prosecution). He has numerous family members residing in this district, many of whom apparently attended his detention hearing on June 10, 2005. He is unmarried and the father of three young children, none of whom currently resides with him

  The defendant is not employed. He reported that he earns some money by working on properties owned by his mother and godfather. Despite being 27 years old, his only previous period of employment was a three-month period with a temporary agency. Consistent with his lack of employment, he reports having no assets and states he is dependent on his mother and his girlfriend for support.

  Lewis states that he is in good physical and mental health. While he has some history of drug treatment, he admits that he is a regular user of marijuana, smoking a blunt several times per week. The current charge is not Lewis's first involvement with the criminal justice system. Rather, he has five prior convictions — two for felonies and three for misdemeanors. In 1996, he was convicted of criminal possession of a loaded firearm in the third degree and sentenced to ten weeks' imprisonment and five years of probation. He violated the terms of probation in 1998 and was resentenced to a one to three year term of incarceration.

  That violation apparently stemmed from Lewis's participation in additional criminal conduct, which resulted in a second felony conviction. This time, he was convicted in 1998 of criminal possession of a controlled substance in the fifth degree and sentenced to one to three years' imprisonment. He was paroled in December 1999 and, while on parole, committed a third offense.

  Lewis's third conviction, a misdemeanor conviction, occurred on October 2, 2000. He was convicted of another narcotics offense, criminal possession of marijuana in the fifth degree, and sentenced to ninety days in jail. Shortly after release, Lewis was again convicted of the same offense and sentenced to a conditional discharge and twenty-eight days in jail.

  Lewis violated the terms of his conditional discharge by committing further criminal conduct. This time, he was convicted of criminal sale of marijuana — his fourth narcotics conviction — and sentenced to five months' imprisonment. This conviction, like the four prior convictions, resulted from a guilty plea by Lewis.

  The pending complaint charges the defendant with participating in a cocaine base distribution conspiracy and with distributing, and possessing with intent to distribute, cocaine base. In view of his criminal history, Lewis faces a statutory mandatory minimum sentence of 20 years and a maximum sentence of life imprisonment, if convicted. See 21 U.S.C. § 841(b)(1)(A). As the government proffered, three co-defendants informed law enforcement that Lewis was involved in drug dealing: first, Flora Williams, Lewis's aunt, during the course of an undercover purchase from her of crack cocaine, told the agent that she obtained her narcotics from her nephews, who lived on DeJonge Street (the complaint stated that Jamar and Allen Lewis resided at 25 DeJonge Street); second, Anthony Grimes, during a post-arrest statement on other charges, stated that he had purchased crack cocaine from the defendant on over 100 prior occasions; and third, Rondell Wade, who allegedly sold crack cocaine to an undercover agent on several occasions, advised that, at the direction of Terrance Bell (another co-defendant), he purchased "eight-balls" of cocaine from the defendant on approximately thirty prior occasions. He also stated that the cocaine that he (Wade) had sold the undercover agent on two previous occasions had come from Lewis. Consistent with this assertion, on March 4, 2005, according to the government's proffer, Terrance Bell advised the undercover agent that they needed to go to DeJonge ...


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