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United States v. Lewis

United States District Court, S.D. New York

December 20, 2017

UNITED STATES OF AMERICA,
v.
BRUCE LEWIS, JACQUELINE GRAHAM, ANTHONY VIGNA, ROCCO CERMELE, PAULA GUADAGNO, Defendants.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         This case concerns a single count indictment that charges the Defendant Bruce Lewis ("Defendant"), and his co-Defendants (collectively, "the Defendants"), with conspiracy to commit mail fraud, wire fraud, and bank fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1344. (Indictment at ¶ 11, ECF Doc. No. 2.) On December 1, 2017, this Court held a de novo Bail Hearing at which Defendant requested this Court release Defendant Lewis on bail. For the following reasons and those articulated during the proceedings on December 1, 2017, the Defendant's bail application is DENIED.

         Background

         On November 29, 2016, Defendant Lewis and his co-Defendants were charged in a one count indictment with mail fraud, wire fraud, and bank fraud in connection with the administration of a company known as the Terra Foundation ("Terra"). (Indictment at ¶ 1.) Defendant Lewis and his co-Defendants were partners who owned and operated Terra. (Id.) The Indictment alleges that from 2011 to in or about 2012, the Defendants conspired to engage in a scheme to defraud financial institutions and Terra's clients by soliciting mortgage borrowers who were having difficulties making payments on their mortgage loans. The Defendants promised their clients that in exchange for a fee, Terra could eliminate their mortgage debt through a three- step procedure involving: (1) an audit; (2) a request to the client's mortgage lender; and (3) the filing of a discharge of mortgage in the local clerk's office. (Id. at ¶ 6-7, 9-10.) During their operations, Terra allegedly filed nearly sixty false mortgage discharges, some which were signed by Defendant Lewis, with an aggregate loan principal of over $33 million. (Id. at ¶ 8.)

         Defendant Lewis was arrested on December 21, 2016 and arraigned on the same day by Magistrate Judge Paul E. Davison. On September 19, 2017, this Court granted Defendant Lewis's application to proceed pro se. Magistrate Judge Judith C. McCarthy denied the Defendant's first request for bail on October 27, 2017. For the following reasons, this Court also denies Defendant's request for bail.

         Standard of Review

         A District Judge reviews a Magistrate Judge's decision on a bail application de novo. United States v. Kirkaldy, No. 98-1680, 1999 WL 357847, at * 1 (2d Cir. May 26, 1999); United States v. Leon, 766 F.3d 77, 80 (2d Cir. 1985); United States v. Sierra, 99-CR-962 (SWK), 1999 WL 1206703, at *1 (S.D.N.Y. Dec. 16, 1999). Accordingly, a District Court must independently analyze the factors laid out in the Bail Reform Act to determine whether there is any "condition or combination of conditions [that] will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community, " 18 U.S.C. § 3142; Kirkaldy, 1999 WL 357847, at* 1.

         Typically, the Government bears the dual burden of proving by a preponderance of the evidence that the Defendant is a flight risk and that no condition or combination of conditions could be imposed on the Defendant that would reasonably assure his presence in court. United States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007); See 18 U.S.C. § 3142(f); Fama, 2013 WL 2467985, at * 1. Alternatively, the Government must prove by clear and convincing evidence that the Defendant presents a danger to the community. Fama, 2013 WL 2467985, at * 1. In making its determination, the Court must consider the four factors listed in 18 U.S.C. § 3142(g): (1) "the nature and circumstances of the offense charged;" (2) "the weight of the evidence against the person;" (3) "the history and characteristics of the person;" and (4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." § 3142(g) (1)-(4), In some circumstances, the charged conduct triggers a statutory presumption that no such conditions exist. See 18 U.S.C. § 3142(e)(3); See e.g., United States v. FflWff, 13-CR-234(JFK), 2013 WL 2467985, at *1 (S.D.N.Y. June 7, 2013). This is not such a circumstance.

         Discussion

         Defendant Lewis is charged with conspiracy to commit mail fraud, wire fraud, and bank fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1344, which carries a thirty year maximum term of imprisonment. (Indictment at ¶ 11; Transcript at 13:15.) A charge of this nature requires the Government to prove whether the Defendant is a flight risk or if he is a danger to the community. The Government contended, first, that Defendant is a flight risk and that there is no condition or combination of conditions that the Court could set to ensure that the Defendant appears in Court and, second, that Defendant Lewis presents a danger to the community. (Transcript at 20:10-15.)

         The Government alleged that Defendant was a flight risk for several reasons. First, because the Defendant considers himself a "sovereign citizen" which means, as the Defendant Stated in "his own words[, ] that he does not believe the law applies to him, " (Id. at 21:6-7.) The government pointed to Defendant Lewis' own writings in the form of email communications which were uncovered during the Government's investigation and where the Government believes the Defendant represents himself as a sovereign (Id. 14-18), although it appears that the Defendant now holds himself out to be an "Alaskan National." (Id. 23:5-6.) In sum, the Government argues that the Defendant believes the law does not apply to him. (Id. 22:15.)

         Second, the government pointed to the Defendant's extensive criminal history. That history includes drug cases, a carjacking, larceny, theft, robbery, and drug use. (Id. 24:7-9.) Further, his criminal history includes, under the Government's count, 50 bench warrants (in contrast to the Defendant's count of 20 to 25 bench warrants). (Id. at 23:18-22.)

         Third, the Government noted that Defendant also has no contacts with the community of New York (Id. at 24:10-11), has no financial resources, nor does he have anyone willing to cosign for him. (Id. at 24:18; 25:15-16.) The Defendant also did not provide the Government or this Court any proof pertaining to a place to stay if granted bail. (Id. 25:7-14.) Defendant has only mentioned, without substantiating his claim, that a diplomat for the country of Guinea-Bissau wanted to lend him an apartment in New York City and offer him a position as an attorney. (Id. 24:22-25.) These facts, the Government averred, cannot reassure this Couit that Defendant is not a flight risk. There would be no reason for him to stay in the New York area, and no incentive to do so (Id. at 25:21-25.)

         Finally, the Government alleged that Defendant Lewis is a danger to the community because of his criminal histoiy. Defendant Lewis, according to the Government, is an "economic danger" to the community as a result of the economic loss in this case, which could be measured up to $58 million. (Id. 26:3-6, 12-14; 27:11.) The ...


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