The opinion of the court was delivered by: Hurley, Senior District Judge
Defendant renewed his earlier motions for bail by letter dated May 21, 2009. That application was the subject of oral argument on May 29, 2009 and August 11, 2009. On the latter date, the Court found that defendant had established "exceptional reasons why [his continued] detention would not be appropriate," thus satisfying one of the prerequisites for post-verdict release pursuant to 18 U.S.C. § 3145(c).*fn1 (See Aug. 11, 2009 Tr. at 53-61 which pages are hereby incorporated by reference.)
A movant under § 3145(c) must also establish by clear and convincing evidence that his release from detention would not pose a danger to the safety of any other person or the community or give rise to a risk of flight. In endeavoring to perform that task, defendant indicates that he "is prepared to submit to the monitoring of all non-legal phone calls and e-mails, surrender of cellular phones, electronic monitoring supervised by Pretrial Services and to home detention guaranteed by a private security firm."*fn2 (Def.'s May 21, 2009 Letter Br. at 4.)
The private security firm proffered by the defense is Suffolk Investigative Protective Services, Inc. ("SIPS"). In its contract proposal to a member of the defense team, it specifies "the terms and conditions [it] would require to implement secure transport and house arrest, a.k.a. home detention [for defendant] subject to review and approval by the . . . District Court." (SIPS' May 4, 2009 Letter to Peter Smith, Esq., at 1.) Those terms and conditions include, inter alia, (1) "five . . . agents present round the clock at [Morrison's] residence plus a minimum of four agents assigned to secure transport when needed" (id.); (2) "an on-call agreement with another firm for technical assistance in installing, maintaining and/or repairing all electronic equipment employed in th[e] assignment" (id.); (3) a request that it be provided with authority in its "discretion [to conduct] a cursory 'pat down'(as the term is commonly used within law enforcement) of the Subject and/or any person/persons accompanying him before he/they enter(s) the transport vehicle" for trips to the courthouse or other authorized sites (Proposal attached to SIPS' May 4, 2009 Letter ("SIPS' Proposal") at 2), and, presumably, with like authority "with respect to [the other six] persons who live at and who have [regular] access to the Rodney A. Morrison residence" (SIPS' Report at page entitled "Person Occupying Residence"), as well as for visitors to that site; and (4) the erection of a six foot high security fence circumventing the property which is located "not far from the Moriches Bay" (id. at page entitled "Security Fence").
SIPS' "corporate officers are retired Suffolk County New York Police Detectives with over 65 years of police background and experience" (id. at page entitled "Biography of Firm") and I was advised at oral argument that the individuals who would be monitoring Morrison are similarly retired police detectives. SIPS further explains in its proposal that all systems and devices required to monitor Morrison and his activities will be continuously checked by SIPS' personnel who will "immediately report unusual occurrences to proper authority." (SIPS' Proposal at 4.)
When asked by me during oral argument if the defendant's proposal, including the presence of round-the-clock private security guards, adequately addressed the government's concern, A.U.S.A. James Miskiewicz responded:
No, it does not, and for the following reasons.
No private security service can basically rebuild a detention facility in a residential area or inside someone's residential home which has never been designed to function as a detention facility. And no number of private cameras or alarms or 24 hour monitors or retired law enforcement - who may or may not, by the way, have been corrections- enforcement trained*fn3 - can supplant a detention facility.
If somebody is a flight risk such that the conditions that would ensure return would require the creation of a detention facility outside of the detention facility, that is really beyond what 3142 requires, [citing United States v. Orena, 986 F.2d 628 (2d Cir. 1993)], and that in that instance perhaps the better practice, and I submit certainly it has been the government's position throughout, the better practice is to keep detention.[*fn4 ]
(May 29, 2009 Tr. at 55-56.)
The above position articulated by the government finds abundant support in case law. See Orena, 986 F.2d at 632-33; see also United States v. Dono, 275 Fed. Appx. 35, 37-38 (2d Cir. 2008); United States v. Mercedes, 254 F.3d 433, 436-37 (2d Cir. 2001); United States v. Jimenez, 104 F.3d 354, 1996 WL 680763, at *2 (2d Cir. Nov. 22, 1996)(unpublished opinion); United States v. Cinquemani, 100 F.3d 941, 1996 WL 19148, at *1 (2d Cir. Jan. 16, 1996)(unpublished opinion); United States v. Cantarella, 2002 WL 31946862, at *3-4 (E.D.N.Y. Nov. 26, 2002); United States v. Agnello, 101 F. Supp. 2d 108, 114-16 (E.D.N.Y. 2000); United States v. Koltun, 1998 WL 1033063, at *2 (E.D.N.Y. Oct. 19, 1998); United States v. Bellomo, 944 F. Supp. 1160, 1167-68 (S.D.N.Y. 1996); United States v. Masotto, 811 F. Supp. 878, 883-84 (E.D.N.Y. 1993) and United States v. Gotti, 776 F. Supp. 666, 672-73 (E.D.N.Y. 1991).*fn5
The conditions of release proposed by defendant bear significant similarities to those put forth by the defendants in such cases as Agnello, 101 F. Supp. 2d at 114 (e.g., electronic monitoring, video surveillance, prohibition of cellular phones and other communication devices, a twenty-four hour guard posted outside the defendant's home, recordation of all telephone conversations) and in Koltun, 1998 WL 1033063, at *2 (Judge Gleeson, in characterizing the defendant's post-verdict home detention proposal indicated that defendant had "proposed to turn a vacant apartment . . . in Brooklyn into a virtual prison, with an electronic bracelet, round the clock guards and telephone monitoring").
In rejecting the proposal in Agnello, Judge Gershon held:
These measures, albeit elaborate, do not assure the safety of other persons and the community in a manner remotely commensurate to pretrial detention in a government facility. . . . Although he purportedly would be restricted to one portion of his house, his activities inside the house will not be observed, nor is it reasonable to believe that the defendant could not evade monitoring by obtaining access to communication devices and employing other methods to carry on criminal activity and to endeavor to obstruct justice. A security guard posted outside, video ...