United States District Court, W.D. New York
DECISION AND ORDER
HUGH B. SCOTT, Magistrate Judge.
Pending before the Court is a motion (Dkt. No. 10) by defendant Demetrius Purdue ("Purdue") for pretrial release on conditions including electronic monitoring. Purdue had withdrawn his argument for bail because he could not propose a residence that the United States Probation Office ("USPO") would approve. Purdue argues now that he could live with a friend who has no criminal record and is employed. Purdue also offers that he would be willing to submit to electronic monitoring and to conditions relating to substance abuse treatment and obtaining employment. The Government and the USPO oppose release given the nature of the charges, Purdue's possible gang affiliation, and Purdue's criminal history including one bail and one probation violation.
The Court held an initial detention hearing on July 10, 21, and 24, 2014, and heard argument on the pending motion on August 1, 2014. For the reasons below, the Court denies Purdue's motion.
This case concerns allegations that Purdue bought a handgun with a defaced serial number and tried to hide it from police. According to the complaint (Dkt. No. 1) and exhibits from the preliminary hearing, Buffalo police spotted Purdue while on routine patrol on June 27, 2014. Police officers allegedly saw Purdue standing in the driveway of 36 Sweeney Street in Buffalo. Purdue was carrying a white T-shirt in his right hand. When Purdue saw the police, he walked up the driveway and disappeared from the officers' sight for about two seconds. When Purdue walked back down the driveway, he no longer had the T-shirt in his hand. Officers found the disappearance of the T-shirt suspicious and investigated. Officers eventually found the T-shirt on the roof of 36 Sweeney Street, with a loaded handgun in it. The handgun had a defaced serial number.
The next series of events pertained to Purdue's arrest. Officers arrested Purdue and advised him of his Miranda rights. Purdue allegedly made statements to the effect that someone named Paul sold him the handgun for $350. Purdue did not pay Paul right away, but Paul apparently trusted Purdue to pay him at some point. Purdue also allegedly conceded that he hid the handgun in the white T-shirt that officers found and that he threw the T-shirt with the gun on the roof of the house.
The alleged events of June 27, 2014 generated criminal charges both locally and here. Officers filed a felony complaint in Buffalo City Court charging Purdue with criminal possession of a weapon in the third and the second degree, in violation of New York Penal Law §§ 265.02(3) and 265.03(3), respectively. Purdue has posted a $25, 000 bond with respect to the local charges. Here, this Court signed a complaint charging Purdue with possession of a firearm that had a defaced serial number, in violation of 18 U.S.C. § 922(k).
This case has run through standard pre-indictment proceedings. Purdue's initial appearance occurred on July 10, 2014, as did the beginning of his detention hearing. Purdue underwent a mental health evaluation from Horizon Corporation; the report consisted of self-reporting and led to a diagnosis of adjustment disorder with observations pertaining to brain injury. During Purdue's detention hearing, continued across three dates, the Court directed the USPO to investigate Purdue's mother's residence as a possible place where he could stay. The USPO did not approve that residence because Purdue's father did not want him there, to prevent contact with Purdue's 12-year-old sister, who lives there. Without a residence to propose, Purdue withdrew his opposition to the Government's detention motion while reserving his rights. The Court ordered Purdue detained as a flight risk but without prejudice. The Court also held a preliminary hearing on August 1, 2014. At the end of the hearing, the Court found probable cause to believe that a violation of 18 U.S.C. § 922(k) occurred on June 27, 2014. The Court ordered Purdue held for a maximum of 30 days for either grand jury action or some other disposition.
Purdue filed the pending motion on July 30, 2014 and argued it after the preliminary hearing on August 1, 2014. In support of the motion, Purdue attacks the strength of the evidence by arguing that no witnesses saw Purdue buy the handgun in question. Purdue notes further that a total of eight individuals were at the scene when police arrived, and that five of them fled. Purdue also emphasizes that the Government has not accused Purdue of using the handgun in question or threatening anyone with it. As for other bail factors, Purdue argues that he is a lifelong resident of Buffalo and had lived his entire life in his parents' house. Purdue is still recovering from multiple gunshot wounds that he suffered last fall. Finally, Purdue now has another residence to propose, the residence of a friend of his who has no criminal record, holds two part-time jobs, and attends college part-time. Purdue's friend has a roommate who also has no criminal record and is employed. Purdue argues that he would be amenable to electronic monitoring, substance abuse treatment, and employment requirements if the Court released him.
The Government opposes the pending motion. The Government has proffered that Purdue is a member of a street gang called the Guilford Gang. The Government also questions Purdue's motives for obtaining the handgun in question, given his gang affiliation, his prior gunshot wounds, and his willingness to hide the handgun from police. The Government downplays the relatively benign nature of the Horizon mental health evaluation by noting that it rested on self-reporting. Finally, the Government notes that Purdue has violated some kind of pretrial or post-conviction release twice before and has three prior convictions in his criminal history.
"The Eighth Amendment to the Constitution states that [e]xcessive bail shall not be required.' U.S. Const. amend. VIII. Consistent with this prohibition, 18 U.S.C. § 3142(b) requires a court to order the pre-trial release of a defendant on a personal recognizance bond unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.'" U.S. v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). Statutory factors to be considered when assessing flight or danger include the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See 18 U.S.C. § 3142(g).
With respect to flight risk, "the government carries a dual burden in seeking pre-trial detention. First, it must establish by a preponderance of the evidence that the defendant, if released, presents an actual risk of flight. Assuming it satisfies this burden, the government must then demonstrate by a preponderance of the evidence that no condition or combination of conditions could be imposed on the defendant that would reasonably assure his presence in court." Sabhnani, 493 F.3d at 75 (citations omitted). "To order detention, the district court must find, after a hearing, that the government has established the defendant's dangerousness by clear and convincing evidence. The ...