United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The defendant, Reginald Brown, is charged by an Indictment returned on February 6, 2013, with two counts of possession with intent to distribute, and distribution, of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Defendant Brown appeals an order of Magistrate Judge Hugh B. Scott revoking defendant's pretrial release pursuant to 18 U.S.C. § 3148(b).
After a revocation hearing, Magistrate Judge Scott found defendant possessed and used cocaine, s ee Dkt. No. 48, p. 7; that no available condition or combination of conditions of release will adequately protect against the danger to the community posed by defendant's on-going drug abuse; and, that defendant is otherwise unlikely to abide by any conditions of pretrial release the Court could impose. Id. at 8-9. Upon de novo review of the Magistrate Judge's ruling, and for the reasons that follow, the Court affirms revocation of defendant's pretrial release.
Defendant Brown was granted pretrial release secured by a $2, 500 surety bond, by defendant's commitments to refrain from illegal drug use and to submit to drug abuse testing and treatment, among other mandatory conditions. A noncompliance report was submitted to the Court in May, 2013, after defendant tested positive for cocaine use approximately five times while on release, and defendant was ordered to undergo outpatient drug abuse treatment and to submit to increased drug testing while subject to electronic monitoring and a residential curfew. See Dkt. No. 14.
Despite heightened supervision, defendant Brown tested positive for cocaine again on June 13, 2013 and June 25, 2013. Defendant was arrested on July 3, 2013, based upon these violations, and he was held in custody until placement in an inpatient drug-treatment facility on July 15, 2013. Dkt. No. 19.
Defendant Brown completed inpatient treatment at Alcohol and Dependency Services on August 14, 2013, and was released from custody and placed with Horizon Health Services for further outpatient drug abuse treatment. Defendant was also placed in an eleven week behavioral skills program with United States Probation.
Unfortunately, defendant Brown again tested positive for cocaine on October 13, 2013. Defendant's pretrial release conditions were modified again by the Court to require 60 days of home detention while on electronic monitoring.
Yet again, on December 10, 2013, defendant Brown tested positive for cocaine. Two drug test urine samples from December 18, 2013 and December 30, 2013 were diluted. Defendant was arrested for violating the conditions of his pretrial release on January 9, 2014.
On February 12, 2014, after delay related to a choice-of-counsel issue, Magistrate Judge Scott held a pretrial release revocation hearing under 18 U.S.C. § 3148(b). Defendant Brown's supervising Pretrial Services Officer testified during the hearing. Based upon the hearing testimony, and the full record before the Court, it was established defendant had tested positive for drug use a total of approximately 10 times, and admitted drug use approximately six times, during the approximate 11 months since he was first placed on pretrial release.
After post-hearing briefing, Magistrate Judge Scott entered an oral ruling revoking defendant's release pursuant to 18 U.S.C. § 3148(b). Dkt. Nos. 45, 48. The Magistrate Judge specifically found probable cause to believe defendant had criminally possessed cocaine when defendant tested positive for cocaine on or about December 10, 2013, though he did not find felony possession. Dkt. No. 48, p. 7. This appeal followed.
A defendant who violates a condition of pretrial release may have pretrial release revoked. 18 U.S.C. § 3148(a); see United States v. LaFontaine, 210 F.3d 125 (2d Cir. 2000). A court will revoke release and order detention if, after a hearing, a:
judicial officer (1) finds that there is - (A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; (B) clear and convincing evidence that the person has violated any other condition of release; and (2) finds that - (A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any ...