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United States of America v. Terry Stewart

November 8, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



The United States moves pursuant to 18 U.S.C. § 3145(a)(1) to revoke a pretrial release order entered by Magistrate Judge Jeremiah J. McCarthy on November 3, 2011, authorizing pretrial release of the defendant, Terry Stewart. The United States argues that defendant Stewart should be detained pending trial on the grounds that the defendant is a serious risk of flight and a danger to the community. The defendant opposes his pretrial detention and argues that the conditions of release ordered by Magistrate Judge McCarthy, which include primarily home incarceration at his mother's residence on electronic monitoring secured by a pledge of $60,000 of the value of the residence, are sufficient to protect the community and to ensure the defendant's appearances in court as required.

On November 7, 2011, the Court heard brief argument on the United States' motion for revocation of the pretrial release order of Magistrate Judge McCarthy. For the reasons stated below, on the current record, the motion to revoke is denied.


Defendant Stewart is charged in two counts of a ten-count Superseding Indictment with conspiring to transport stolen merchandise in interstate and foreign commerce in violation of 18 U.S.C. § 371 and with that substantive offense in violation of 18 U.S.C. § 2314. More specifically, the Superseding Indictment and the United States' proffer in support of detention establishes that the defendant was a member of a ring of shoplifters and burglars who stole merchandise that a co-defendant, Rico Vendetti, sold over the internet via eBay accounts. The ring stole merchandise with an alleged aggregate retail value of more than $500,000 in the four years before the defendants' arrests in October, 2010.

The case involves much more serious allegations. In addition to the organized theft and burglary ring, the Superseding Indictment and the United States' proffer of evidence indicate that, in June 2010, co-defendant Vendetti solicited co-defendant Arlene Combs to recruit other persons to burglarize "an old man in Medina" named Homer Marciniak. Mr. Marciniak was targeted because he was believed to have a comic book collection valued at $40,000 to $100,000. Combs recruited persons to commit the burglary, including defendant Stewart and others. The defendant and Combs went together to Medina to find Mr. Marciniak's home and to case it before the burglary.

On July 5, 2010, Combs arranged for certain co-conspirators -- but not defendant Stewart -- to break into Mr. Marciniak's home in the middle of the night to steal the comic book collection. Combs told investigators that she did not include the defendant in the burglary because he was too high on crack cocaine. The intruders found Mr. Marciniak at home, tied him up and beat him. They threatened to harm Mr. Marciniak if he did not reveal the location of the comic books. Ultimately, the comic books were discovered and taken, along with other valuable items in strong boxes or safes.

Mr. Marciniak was treated and evaluated at a nearby hospital for injuries. Within 24 hours of the burglary, however, Mr. Marciniak died of a heart attack. The Superseding Indictment and the United States allege that Mr. Marciniak's death was caused by the trauma of the burglary. The Superseding Indictment charges Vendetti, Combs, and certain other co-defendants with the murder and assault of Mr. Marciniak as part of a pattern of racketeering activity.

Defendant Stewart has not been charged with the home invasion, the other acts of violence against Mr. Marciniak, or with engaging in racketeering, but the United States has proffered that it expects he will soon be added as a defendant on at least some of those charges. Although the defendant was not actually present during the burglary of Mr. Marciniak's home and during the assaults on Mr. Marciniak, the defendant opened locked strong boxes or safes taken from Mr. Marciniak. The defendant was involved in transporting the stolen comic book collection to Vendetti. The defendant shared in some proceeds of the crimes.

A detention hearing was held on October 20, 2011, and the parties made supplemental appearances on October 31, and November 3, 2011, when Magistrate Judge McCarthy issued his Decision and Order. The Decision and Order denied the detention motion of the United States and ordered defendant Stewart released on various conditions, including electronic monitoring while on home incarceration at his mother's residence, and with $60,000 of the value of the residence being posted to secure the release conditions, among other conditions. The release order was stayed by Magistrate Judge McCarthy to permit the United States to seek to revoke it.


Pursuant to 18 U.S.C. § 3142(f), the United States may move for pretrial detention of a defendant only in cases that fall into one of six specific categories. United States v. Dillard, 214 F.3d 88, 91 (2d Cir. 2000). Three of the six categories involve the nature of the crime charged, including crimes of violence, crimes for which the potential punishment is death or life imprisonment, or serious drug offenses. 18 U.S.C. § 3142(f)(1)(A)-(C). The other three categories involve cases in which the defendant has a particular set of prior criminal convictions, cases that involve a serious risk of flight, and cases that involve obstruction of justice, witness tampering, or jury tampering. 18 U.S.C. § 3142(f)(2)(A)-(B). If a defendant does not fall into one of the specific categories that permit detention, the defendant must be released ". . . no matter how obviously dangerous or how bent on committing an act of violence the [defendant] may be . . . ." Dillard, 214 F.3d at 96; United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988).

If a defendant is ordered released by a magistrate judge, the United States may, under 18 U.S.C. § 3145(a)(1), move for revocation of the release order before the district court. Upon such a motion, the district court must perform a de novo review of the magistrate judge's release order. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (finding that a district court should "not simply defer to the judgment of the magistrate, but reach its own independent conclusion"). When conducting its de novo review, the district court may rely on the record of ...

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