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Nited States of America v. Courtney Dupree

November 3, 2011

NITED STATES OF AMERICA,
v.
COURTNEY DUPREE
DEFENDANT.



The opinion of the court was delivered by: Matsumoto, United States District Judge:

MEMORANDUM AND ORDER

INTRODUCTION

Defendant Courtney Dupree ("Dupree") again moves this court to reconsider the prior rulings of this court and Judges Pollak and Vitaliano on the pretrial detention of Dupree and to order his release pursuant to 18 U.S.C. § 3142(i) for at least two weeks prior to and through the duration of his trial currently scheduled to commence on December 5, 2011. For the reasons set forth below, Dupree's motion for release for trial is denied. The court is, however, cognizant of the limitations to which Dupree is subject at his current detention facility, the Metropolitan Detention Center in Brooklyn, New York ("MDC"). MDC will arrange for the following to be provided to Dupree at MDC so that he can adequately prepare for and participate in his defense with counsel: (1) access to an attorneys' visiting room with a computer that can read DVDs from 9:00 a.m. to 3:30 p.m., with or without counsel, beginning on November 7, 2011 and until the start of trial on December 5, 2011; (2) Dupree's access to the aforementioned attorneys' visiting room can be extended from 3:30 p.m. to 9:30 p.m., provided Dupree is with counsel during this time and twenty-four hour notice is given to MDC for each day an extension is requested; (3) access to counsel and agents of his counsel in an attorneys' visiting room with a computer that can read DVDs following each trial day until 9:30 p.m., provided that twenty-four hour notice is provided to MDC for each day such access is requested; and (4) access to a locked storage area for the storage of documents so that Dupree has additional space other than his detention cell to store documents.

In addition, the court shall arrange for Dupree's counsel to have the ability to make copies during trial, including but not limited to allowing counsel to bring a portable printer or other electronic copying device for use in the courtroom before trial, after trial, and during breaks in the trial proceedings so that Dupree can be provided with documents to review at the end of each trial day.

BACKGROUND

Familiarity with the facts and prior opinions of this court in this matter is presumed and only the background relevant to this motion is set forth below.

I.The Charges Against Dupree

Dupree is charged in all five counts of a five-count second superseding indictment. (See ECF No. 295, Superseding Indictment ("S-2 Indictment").) His co-defendants Thomas Foley ("Foley") and Rodney Watts ("Watts") (together with Dupree, "defendants") are charged in three counts of the S-2 Indictment, and Watts is charged in four of the counts. Count One charges all defendants with Conspiracy to Commit Bank, Mail and Wire Fraud in violation of 18 U.S.C. §§ 1349, 3551 et seq. (Id. ¶¶ 18-19.) Count Two charges all defendants with Bank Fraud in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. ¶¶ 20-21.) Count Three charges defendants Dupree and Watts with making a False Statement in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. ¶¶ 22-23.) Count Four charges all defendants with making a False Statement by "knowingly and intentionally [making] a false statement and report, and willfully overvalu[ing] property and security, for the purpose of influencing the action of Amalgamated Bank upon one or more loans" in violation of 18 U.S.C. §§ 1014, 2, 3551 et seq. (Id. ¶¶ 24-25.) Finally, Count Five charges only defendant Dupree with an additional count of Bank Fraud in violation of 18 U.S.C. §§ 1344, 2, 3551 et seq. (Id. ¶¶ 26-27.)

The S-2 Indictment charges that defendant Dupree was the president and chief executive officer of GDC Acquisitions, LLC ("GDC"). (Id. ¶ 2.) The first four counts arise out of an alleged scheme to defraud Amalgamated Bank ("Amalgamated"), a financial institution, and C3 Capital, LLC, a private equity investment firm, by obtaining, and attempting to obtain, loans for GDC's subsidiaries, guaranteed by GDC, on the basis of false financial statements and other material misrepresentations between January 2007 and July 2010. (Id. ¶¶ 5, 6, 8.)

Count Five was originally included in a superseding indictment filed on March 25, 2011 (ECF No. 155, Superseding Indictment ("S-1 Indictment")), and charges only Dupree with an additional count of bank fraud for "knowingly and intentionally execut[ing] and attempt[ing] to execute a scheme and artifice to defraud Amalgamated Bank, and to obtain moneys, funds, credits and other property owned by, and under the custody and control of, Amalgamated Bank by means of materially false and fraudulent pretenses, representations and promises" between August 4, 2010 and March 1, 2011. (S-2 Indictment ¶ 27.)

II.Dupree's Pretrial Release

Dupree was arrested on July 23, 2010, on the basis of a criminal complaint and affidavit, and released later that day on an $800,000 appearance bond with the following conditions:

(1) Dupree must remain in and may not leave New York and New Jersey without court permission*fn1 ; (2) he shall avoid all contact and not associate with former co-defendant Frank Patello except in the presence of counsel; (3) he shall surrender any and all passports to the United States Pretrial Services Agency by July 26, 2010 and shall not apply for any other passport; (4) he is placed under the express supervision of the Pretrial Services Agency, subject to random visits at his home and/or place of work, and must report to that agency in person on a bi-weekly basis and by telephone as directed; and (5) he must not commit any federal, state, or local crime during the period of release. (See ECF No. 5, Order Setting Conditions of Release and Bond; Dupree Mem. at 2-3.) Dupree was subsequently charged in a four-count indictment returned on August 13, 2010, which charges the same first four counts of the S-2 Indictment.(See ECF No. 22, Indictment.) After his indictment and arraignment on the Indictment, Dupree's release continued on the same conditions imposed after his arrest.

III.Dupree's Pretrial Detention

On March 16, 2011, Dupree was arrested on a new criminal complaint and affidavit alleging that he orchestrated another scheme to defraud Amalgamated, the same financial institution that was the subject of the original Indictment. Following his arrest, Dupree appeared before Magistrate Judge Pollak who revoked Dupree's bond and ordered pretrial detention finding the following: (1) "the government has presented sufficient evidence . . . that [Dupree], at the very least, violated the conditions of the bond by committing additional crimes"; (2) "by clear and convincing evidence that [Dupree] presents a financial danger to [Amalgamated]"; (3) "[t]here's no terms or conditions that . . . could mitigate that risk"; and (4) "having already been charged with bank fraud and being under very specific orders not to commit another crime . . . I have no choice." (ECF No. 131, Transcript of Proceedings as to Courtney Dupree held on March 16, 2011 ("March 16, 2011 Tr.") at 31, 34.)

Dupree then sought review of Judge Pollak's order in front of District Court Judge Vitaliano, who at the time was acting in the capacity of Miscellaneous Duty judge. On March 18, 2011, Judge Vitaliano denied Dupree's appeal finding that Dupree should be detained until the resolution of his case because (1) "[t]here is probable cause to believe that another crime is committed . . . by a preponderance of the evidence . . . [which] violates the condition in the bond initially signed"; (2) there is "a disregard for . . . court orders by Mr. Dupree"; and (3) "there is no condition or combination of conditions that will assure [that] Mr. Dupree . . . will not continue to be an economic and financial threat that would lea[d] to further disregard and violation of orders relating to his release." (Transcript of Proceedings as to Courtney Dupree held on March 18, 2011 ("March 18, 2011 Tr.") at 34-35.)

Less than two weeks after Judge Vitaliano's ruling, Dupree was charged with the additional count of bank fraud in the S-1 Indictment returned on March 25, 2011. On March 30, 2011, this court heard Dupree's application for pretrial release on the S-1 Indictment and denied it based on the record before it and Judge Pollak's and Judge Vitaliano's rulings, but granted Dupree leave to present a better bail application. (See ECF No. 362-2, Transcript of Proceedings as to Courtney Dupree held on March 30, 2011 ("Mar. 30, 2011 Tr."); Minute Entry dated May 31, 2011.) After Dupree was subsequently charged in the S-2 Indictment returned on August 3, ...


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