United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Court
September 18, 2014, Defendant Leah McCabe pleaded guilty to a
one-count Information charging her with violating 21 U.S.C.
§ 846 by conspiring to manufacture 50 grams or more of a
mixture and substance containing methamphetamine. (Docket
Nos. 18, 19.) Approximately four months later, on January 14,
2015, this Court sentenced Defendant to a term of
imprisonment of one year and one day, and imposed two years
of supervised release. (Docket Nos. 26, 29.)
January 9, 2017, after Defendant served her term of
imprisonment and while she was on supervised release, the
United States Probation Office submitted a Petition for
Offender Under Supervision, in which it alleged that
Defendant violated the terms of her supervised release in
multiple ways, including that she was again involved in a
conspiracy to manufacture methamphetamine. (Docket No. 31.)
Several weeks later, the Probation Office submitted an
Amended Petition, which added new charges, including that on
January 20, 2017, Defendant was charged with criminal
possession of stolen property, 4th degree, in
violation of New York State Penal Code 135.45, a Class E
felony. (Docket No. 38.) Defendant was remanded to custody
following arraignment on both Petitions. (Docket Nos. 32,
May 30, 2017, Defendant filed a motion for bail. (Docket No.
44.) Therein, Defendant seeks release from custody on the
basis that she was granted bail in her state case, that she
is not a flight risk, and that she needs to care for her two
children because her husband is also incarcerated. The
government opposes Defendant's motion. (Docket No. 46.)
For the following reasons, Defendant's motion is denied.
supervised release proceedings, custody is governed by Rule
32.1 of the Federal Rules of Criminal Procedure. That rule
states that a defendant may be released or detained under 18
U.S.C. § 3143 (a)(1) pending further proceedings.
See Rule 32.1 (a)(6). Eighteen U.S.C. § 3143
(a)(1), in turn, requires that the court “order that a
person who has been found guilty of an offense and who is
awaiting imposition or execution of sentence . . . be
detained, unless the [court] finds by clear and convincing
evidence that the person is not likely to flee or pose a
danger to the safety of any other person or the community if
released under section 3142 (b) or (c).” By rule,
“[t]he burden of establishing by clear and convincing
evidence that the person will not flee or pose a danger to
any other person or to the community rests with the
person.” Rule 32.1 (a)(6).
Here, although it appears that Defendant is not a flight
risk, she has failed to carry her burden of establishing by
clear and convincing evidence that she does not pose a danger
to the community.
First, the allegations in the Amended Petition concern
serious criminal conduct. Charge 1 alleges that Defendant has
been indicted for participating in a conspiracy to
manufacture methamphetamine between June 2 and November 17,
2016. In particular, a search of Defendant's residence
revealed a working methamphetamine lab in a barn on her
property and evidence that Defendant made 35 separate
purchases of pseudoephedrine, which is used in the production
of methamphetamine, from various area pharmacies. According
to the government, the barn housing the methamphetamine lab
was unsecured, with open access to Defendant's and other
area children. Obviously, this conduct poses a serious danger
to the community.
Second, Charges 6 and 7 of the Amended Petition allege
additional criminal conduct: that Defendant was charged with
possessing stolen property and falsifying business records,
in relation to selling a gold coin to a pawn shop for $850.
This continuing criminal conduct demonstrates not only a
danger to the community, but an unwillingness to comply with
conditions of release.
Third, Defendant is charged in the Amended Petition with
numerous instances of failing to abide by the conditions of
her release, including failing to be truthful with her
probation officer, failing to stay away from places where
illegal substances are present, and failing to notify her
probation officer of contact with law enforcement. This
reflects Defendant's inability to comply with her release
Finally, Defendant's criminal history demonstrates that
she is unlikely to change her ways. In 2014, Defendant
operated a methamphetamine lab in the basement of her
residence, where her children and elderly grandfather also
lived. And even after her arrest and release for that
conduct, Defendant continued to be found with methamphetamine
paraphernalia indicative of lab operation while criminal
charges were pending against her. Thus, Defendant has learned
nothing from her past experiences, as she continues to place
herself, her children, and other family members in harm's
way by surrounding them with dangerous illegal drug activity.
Considering all of these circumstances, this Court finds that
Defendant's addiction to methamphetamine and her
willingness to expose her children and others to the serious
dangers of manufacturing methamphetamine make her a danger to
the community. Put simply, nothing before this Court suggests
that Defendant, if released on bail with conditions, would
stop participating in the use and manufacture of
methamphetamine or exposing her children to the many dangers
of methamphetamine. Although Defendant understandably wishes
to reunite with her children,  that desire does not render her
any less a danger to the community. Consequently,
Defendant's motion for bail will be denied and her
detention will be continued.
HEREBY IS ORDERED, that Defendant's Motion for Bail
(Docket No. 44) is DENIED.
that Defendant's ...