United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge
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.
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 ¶
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.
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.
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.
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.)
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.)
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.)
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.)
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 ...