The opinion of the court was delivered by: Joseph F. Bianco, District Judge
On October 20, 2006, defendant Michael Kelly Reiner was indicted on ten counts of possession of child pornography in violation of Title 18, United States Code, Section 2252A(a)(5)(B) and (b)(2). On November 3, 2006, Magistrate Judge A. Kathleen Tomlinson ordered the release of the defendant on bail, subject to certain conditions. The government seeks, pursuant to 18 U.S.C. § 3145(a), to revoke the order of release or, in the alternative, to modify the conditions set by Judge Tomlinson. Defendant also seeks, under 18 U.S.C. § 3145(a), to amend the conditions of his release.
For the reasons that follow, this Court finds that no condition or combination of conditions will reasonably assure the safety of the community. Accordingly, the November 3, 2006 Order of release is vacated and defendant is ordered to be detained pending trial.
According to the criminal complaint, on September 12, 2006, defendant provided written consent for federal agents to search his residence. During that search, the government alleges that law enforcement officers discovered and seized several computers and external hard drives containing more than 500 still images and 60 videos of young children engaged in sexually explicit conduct. Subsequently, defendant was arrested and charged with possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). At the time of his arrest, defendant had been employed for eighteen years as an elementary and middle school teacher at the Long Island School for the Gifted (hereinafter "LISG"), in Huntington Station, New York.
Following the defendant's arrest, a detention hearing was conducted, pursuant to 18 U.S.C. § 3142(f)(1)(E), before Magistrate Judge Tomlinson. The hearing consisted of four separate proceedings, extending over several weeks, and included arguments of counsel*fn1 and the testimony of several witnesses, including several parents of current and former students from LISG, defendant's brother-in-law, a prospective employer of defendant during the pretrial period, and a friend of defendant who offered to house defendant during the pretrial period.
On November 3, 2006, Magistrate Judge Tomlinson issued an order releasing defendant on bail, subject to certain conditions. Specifically, Judge Tomlinson found, under the standard for pretrial detention set out in 18 U.S.C. § 3142(g), that certain conditions would reasonably assure (1) the appearance of defendant at trial and (2) the safety of the community. Those conditions included, inter alia, setting bail in the amount of $375,000, that defendant avoid places where children congregate, and that he not have access to any device with internet capability.
Both parties ask this Court to modify Judge Tomlinson's order. The government asserts that it has demonstrated (1) by a preponderance of the evidence that defendant presents a serious risk of flight and (2) by clear and convincing evidence that, if released, Reiner would pose a serious danger to the community. Accordingly, the government seeks to revoke the release order and detain defendant pending trial or, in the alternative, to impose more restrictive conditions of release. Defendant seeks to lower the bail amount.
The Bail Reform Act ("the Act") directs that, if a court determines that release on an appearance bond is not sufficient, the court shall order pretrial release "subject to the least restrictive . . . condition, or combination of conditions, that [the court] determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3141. However, the court "shall order the detention of [the defendant] before trial" if the court "finds that no condition or combination of conditions 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(e); see United States v. El-Hage, 213 F.3d 74, 76 (2d Cir. 2000); United States v. Gotti, 358 F.Supp. 280, 282, (S.D.N.Y. 2005).
This Court reviews the release order of a magistrate judge de novo. See, e.g., United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); Borodin v. Ashcroft, 136 F.Supp.2d 125, 128 (E.D.N.Y. 2001). Moreover, this Court must consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community:
(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person's 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, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to ...