The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
The defendant, Laura Sirianni Novarro, is charged in a multi-defendant, multi-count indictment with: (1) engaging in a conspiracy to possess with the intent to distribute 5 kilograms or more of cocaine and an unspecified quantity of marijuana (count 4); (2) possessing with an intent to distribute 500 grams or more of cocaine (count 6) and (3) knowingly using and maintaining a residence for the purpose of manufacturing and distributing cocaine and marijuana (count 7).
The government moved for pretrial detention of the defendant and the defendant was detained pending a hearing. After her arrest but before the detention hearing, the defendant proposed certain conditions of release to the government, including that she be released to reside with her mother at 1312 Seneca Street, Buffalo, New York, where she had been staying with her three-year-old child. The defendant had moved in with her mother on or about December 22, 2009, upon eviction from her prior residence at 16 Blum Avenue where she had been living with her husband, co-defendant Javier Navarro, until his arrest in December 2009 for drug trafficking.*fn1
The United States Probation Office conducted a search of 1312 Seneca Street and discovered in the defendant's bedroom: (1) a set of brass knuckles on the dresser;
(2) two large sticks with forged metal blades; and (3) a .357 Magnum revolver in a plastic bin in the closet. Additionally, a black Sepsco .38 special revolver, one Mossberg 500A black pistol grip 12 gauge shotgun and ammunition were also found in a Christmas tree box in the attic. Based upon the discovery of those weapons, the defendant appeared before Magistrate Judge H. Kenneth Schroeder, Jr., on February 25, 2010, and waived a detention hearing subject to her right to move for reconsideration of a detention order based upon a change in circumstances. The defendant was ordered detained.
The defendant later moved for reconsideration of Magistrate Judge Schroeder's detention order, but her motion was denied. She then appealed the detention order to this Court, pursuant to 18 U.S.C. § 3145. The government opposed release and oral argument was held on December 13, 2010.
For the reasons stated herein, the appeal is denied and the defendant is ordered detained pending trial.
A magistrate judge's detention order is reviewed de novo, pursuant to 18 U.S.C. § 3145(b). See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985). An order of detention must be based upon a finding that "no condition or combination of conditions will reasonably assure . . . the safety . . . of the community. . . " if the defendant is released. See 18 U.S.C. § 3142(e). A defendant's dangerousness must be established by clear and convincing evidence. See 18 U.S.C. § 3142(f). The government may proceed by proffer to establish the defendant's dangerousness or risk of flight. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995).
Where a defendant is charged with a narcotics offense for which the potential term of imprisonment is ten years or more, 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)(3)(A); see also United States v. Magassouba, 544 F.3d 387, 393 (2d Cir. 2008) (stating that an indictment that charges a crime carrying a sentencing range of 10 years to life gives rise to the rebuttable presumption of detention under the Bail Reform Act). All three counts against the defendant are narcotics offenses for which the potential term of imprisonment is ten years or more. Therefore, the statutory presumption of detention is triggered in this case.
When the presumption of detention exists, the defendant may present evidence to rebut that presumption. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). However, if 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 the defendant has rebutted the statutory presumption, 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 ...