The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On December 23, 2006, the defendant was arrested as he attempted to enter the United States at the Peace Bridge port of entry in Buffalo, New York, after Border Protection Officers discovered that the vehicle in which he was traveling contained approximately 27,000 pills (approximately eighteen pounds) of a mixture and substance containing methylenedioxymethamphetamine (MDMA). Upon questioning by the Border Protection Officers, the defendant admitted that he had agreed to bring the drugs into the United States and was to be paid $5,000 for doing so. On December 23, 2006, a criminal complaint was filed charging the defendant with unlawfully importing a controlled substance into the United States in violation of 21 U.S.C. § § 952 and 960.
On January 4, 2007, Magistrate Judge Leslie G. Foschio ordered that the defendant be detained. On January 12, 2007, the defendant filed an appeal from that order. On February 22, 2007, a three-count indictment was returned against defendant charging him with: (1) unlawfully importing a controlled substance into the United States in violation of 21 U.S.C. § § 952 and 960; (2) unlawful possession of a controlled substance with the intent to distribute it, in violation of 28 U.S.C. § 841; and (3) smuggling merchandise into the United States, in violation of 18 U.S.C. § 545.
The government filed a response to the defendant's appeal on March 23, 2007, and the Court heard oral argument on April 6, 2007. Pursuant to 18 U.S.C. § 3142, the Court finds that no condition or combination of conditions will reasonably assure the defendant's appearance for further proceedings. The Court therefore orders that defendant continue to be detained pending trial.
Under 18 U.S.C. § 3145(b), a person ordered detained by a magistrate judge may move the district court to revoke the detention order. The district judge must perform a de novo review of that determination. See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (finding that a district court should not defer to the magistrate's judgment but should "reach its own independent conclusion.").
Pursuant to 18 U.S.C. § 3142(e), a defendant will be detained pending trial if the Court finds "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Where the indictment charges the person with a narcotics offense for which the potential term of imprisonment is ten or more years, there is a rebuttable presumption that no condition or combination of conditions will reasonable assure the person's appearance or the safety of the community. See 18 U.S.C. § 3142(e). The defendant may present evidence to rebut that presumption. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). Where the defendant does so, the presumption does not drop out of consideration completely; rather, it "continues to be weighed along with other factors to be considered when deciding whether to release a defendant." Id.
In determining whether a defendant should be detained, the Court must consider the following factors:
(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 ...