The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
The government appeals the Magistrate Judge's Order granting Defendant's motion to reconsider his prior determination to detain Defendant pending trial and ordering that Defendant be released upon certain terms and conditions.
Defendant was initially charged in a criminal complaint with selling her daughter to an adult male for purposes of being portrayed in a sexually explicit visual depiction, in violation of 18 U.S.C. § 2251A(a),(b); 2251(a)(b); 2423(b); and 2252A(a)(5)(B). Thereafter, Defendant was charged in a seven-count indictment with Selling a Child for Purposes of Producing Child Pornography, Sex Trafficking of a Child, Production of Child Pornography, and Possession of Child Pornography.
At the initial detention hearing, the Magistrate Judge found that there was no condition or combination of conditions that would reasonably assure Defendant's appearance at trial. The bases for this finding included that: (1) Defendant has a history of mental health problems; (2) she is of limited financial means; (3) she lacks ties to the community; (4) she has a extensive criminal history; (5) she is subject to serious charges; and (6) if convicted, she faces the possibility of life in prison.
By letter dated March 14, 2007, Defendant moved for reconsideration of her detention. The basis for the motion for reconsideration was: (1) since the initial detention hearing Defendant received voluminous discovery, none of which corroborated the victim's statements; (2) there was no evidence that Defendant owned a computer; and (3) Defendant passed a polygraph examination. The Magistrate Judge granted the motion for reconsideration and held a second detention at that hearing. Based primarily on: (1) the presumption of innocence; (2) the Magistrate Judge's conclusion that there was a lack of corroborating evidence; (3) a belief that the victim may not have testified before the grand jury; (4) the need for Defendant to be available to work with her attorney in preparing a defense; and (5) the results of the polygraph examination, the Magistrate Judge concluded that there were a set of conditions that would ensure Defendant's appearance at further court proceedings.
The government now appeals that decision.
Pursuant to 18 U.S.C. § 3145(a), a person ordered detained by a magistrate judge may file a motion for revocation or amendment of the order with a court having original jurisdiction over the offense. The Court will "fully reconsider" the magistrate's decision and will reach its own "independent conclusion." U.S. v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); U.S. v. Carter, 916 F. Supp. 193, 195 (N.D.N.Y. 1996). The government has the burden to establish by clear and convincing evidence that a defendant is a danger to the community. The government has the burden of demonstrating risk of flight by a preponderance of the evidence. U.S. v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). Proof of either is sufficient to warrant detention.
For the following reasons, and based upon the relevant considerations, the Court finds that the government has amply demonstrated a risk of flight and a lack of conditions that would ensure Defendant's appearance and, therefore, detention is warranted.
First, pursuant to 18 U.S.C. § 3142(e), there is a rebuttable presumption that no condition or combination of conditions will reasonably assure Defendant's appearance as required. The Court finds that Defendant's evidence is insufficient to overcome this presumption. Even if the evidence is sufficient to overcome the presumption, based upon the totality of the relevant considerations (as will be discussed), the Court finds that detention is warranted.
Second, although Defendant may have passed the polygraph exam as administered by Mr. Sabloski, none of the questions submitted to the Court directly relate to the issues of whether Defendant is either a risk of flight, a danger to the community, or whether she is likely to abide by any terms and conditions imposed upon her if she were to be released pending trial. Those, of course, are the main issues presented for determination. The questions posed by the polygraph examiner and presented to the Court, however, pertained solely to issues concerning Defendant's guilt or innocence in connection with the charges against her. This tends to reduce the relevancy of the polygraph findings for purposes of this proceeding. See United States v. Bellomo, 944 F. Supp/ 1160, 1163 ("The issue now before the Court is whether there is a risk that Bellomo will flee the jurisdiction or endanger others before the trial can be held, not whether he is guilty or innocent of the charges in the indictment. The polygraph results therefore are relevant only to the extent they bear on whether Bellomo has an incentive to flee or poses a threat to the community.").
Further, it is well-settled that polygraph evidence is unreliable. United States v. Scheffer, 523 U.S. 303, 309, 118 S.Ct. 1261 (1998); United States v. Kwong, 69 F.3d 663, 668 (2d Cir. 1995); United States v. Rea, 958 F.2d 1206, 1224 (2d Cir. 1992). This Court is not persuaded that the polygraph evidence is of any probative value ...