The opinion of the court was delivered by: Garaufis, United States District Judge
Defendant appeals from an order by Magistrate Judge Lois Bloom denying bail and imposing a permanent order of detention pending trial. For the reasons set forth below, Judge Bloom's decision is reversed and a bail hearing will be held to determine the appropriate bail conditions that "will reasonably assure the appearance of [the defendant] as required and the safety of any other person and the community" in accordance with the Bail Reform Act, 18 U.S.C. § 1342(e). The bail hearing will take place before this court on Monday August 14, 2006 at 2:00 p.m.
Defendant Lajos Abe Berger ("Berger" or "Defendant") was indicted, along with twenty co-defendants, in March 2006 for the commission of several crimes, including racketeering and racketeering conspiracy, in connection with participation in the alleged criminal enterprise known as the "Greenpoint Crew." The criminal activities alleged to have been committed by members and associates of the Greenpoint Crew between January 2005 and February 2006 include narcotics trafficking, firearms trafficking, robbery, extortion, credit card fraud, identification and document fraud and trafficking in stolen vehicles and other property. For his alleged participation in the Greenpoint Crew's criminal activities, Defendant Berger is charged in Counts One and Two of the Indictment (racketeering and racketeering conspiracy), Count Eight (conspiracy to traffic in fraudulent identification documents), Count Thirteen (possession of fraudulent identification documents), and Count Twenty-three (conspiracy to sell stolen property). (See Indictment).
Berger was arrested on March 8, 2006 and arraigned before Magistrate Judge Ramon Reyes, at which time a temporary order of detention was imposed pending a hearing to take place two days later. (See Docket Entry Nos. 20, 21). On March 10, 2006, Magistrate Judge Viktor Pohorelsky entered a permanent order of detention, with leave to reapply for bail, after Berger presented no bail package. (See Docket Entry No. 52). Finally, on April 7, 2006, Magistrate Judge Lois Bloom conducted a bail hearing, and ruled to continue the permanent order of detention, finding that Berger presented a danger to the community and a flight risk. (See Transcript of Bail Hearing Before Magistrate Judge Bloom dated 4/7/06, at 27-28).
Currently before the court is Berger's appeal of Judge Bloom's decision denying him bail. The Defendant appeared before this court for argument on the matter on August 2, 2006, at which time I reserved decision. My decision follows.
The Bail Reform Act of 1984 ("BRA") provides that "[i]f a person is ordered detained by a magistrate, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." 18 U.S.C. § 3145. If an appeal is raised, "[a] district judge must undertake a de novo review of a magistrate judge's decision to release or detain a defendant." United States v. Gotti, 358 F. Supp. 2d 280, 282 (S.D.N.Y. 2005). Thus, this court "should fully reconsider a magistrate's denial of bail and . . . should not simply defer to the judgment of the magistrate, but reach its own independent conclusion." United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
The BRA directs the court to impose the least restrictive bail conditions necessary to protect the safety of the community and reasonably assure the defendant's appearance at trial. 18 U.S.C. § 3142(c)(1)(B). Accordingly, it "limits the circumstances under which a district court may order pretrial detention." United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (citing United States v. Salerno, 481 U.S. 739 (1987)). Berger is presumed innocent, and it is only a "limited group of offenders" who should be denied bail pending trial. Gotti, 358 F. Supp. 2d at 283 (quoting United States v. Shakur, 817 F.2d 189, 195 (2d Cir. 1987)). Pursuant to 18 U.S.C. § 3142(f)(2), a pretrial detention motion is permitted only when the charge against the defendant is for certain enumerated crimes, for example crimes of violence and serious narcotics offenses, or when there is a serious risk that the defendant will flee, or obstruct or attempt to obstruct justice. See Friedman, 837 F.2d at 49. In the present case, there is no suggestion that Berger's charges fall within the statutorily enumerated crimes under the BRA. Thus, this court is left to consider whether Berger poses a serious risk of flight, or a serious risk of obstruction of justice.
Once a motion for detention has been filed, the district court engages in a two step-inquiry. See United States v. Shakur, 817 F. 2d 189, 194 (2d Cir. 1987). First, the court determines by a preponderance of the evidence whether the defendant presents a risk of flight or obstruction of justice. United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987). At the second step, the court analyzes whether any condition or combinations of conditions of release will protect the safety of the community and reasonably assure the defendant's appearance at trial. Friedman, 837 F.2d at 49; United States v. Berrios-Berrios, 791 F.2d 246, 250 (2d Cir. 1986). Importantly, the Second Circuit has noted that "the Bail Reform Act does not permit detention on the basis of dangerousness in the absence of risk of flight, obstruction of justice or an indictment for the [enumerated offenses]." Friedman, 837 F.2d at 49.
There has been no showing, by a preponderance of the evidence, that Defendant Berger presents a serious risk of flight. The Government maintains two principal grounds to support a finding of flight risk: (1) the "troublesome ambiguity" concerning Berger's place of residence, marital status and financial resources; and (2) the likelihood of a long sentence if convicted of the crimes charged. With respect to the first category, the Government correctly asserts that confusion has arisen surrounding Berger's two residences/offices in Brooklyn, whether he is currently married or divorced from his significant other, and whether he maintains an office in the diamond district of Manhattan, among others matters. (See Gov't Resp. Opp'n Def.'s Bail Application, dated 8/1/2006 ("Gov't Opp'n"), at 10-11). In addition, the Government asserts that Berger has "failed to accurately account for his income and assets" inasmuch as he requested and was appointed CJA counsel at the time of his arrest, but is now represented by two privately retained attorneys. (Gov't Opp'n, at 11).
Although the court agrees that some of the factual circumstances surrounding Berger's personal and professional life are unclear, and perhaps even suspicious, Berger, through his attorney, did provide plausible explanations for the confusion at the hearing before this court that occurred on August 2, 2006. (See Transcript of Bail Hearing Before Judge Garaufis dated 8/2/06 ("Tr.") at 9-11). More importantly, that Berger may maintain a second residence that is also used as an office, or that his marital status is uncertain, does not prove to this court that he is a flight risk. Additionally, with respect to his finances, Berger's retained attorneys who appeared at the most recent hearing, informed the court that Berger was not paying their ...