United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY UNITED STATES DISTRICT JUDGE.
Defendant Kenneth Pettway, Jr. is charged in a 5-count
indictment with controlled substances and firearms offenses,
in violation of 21 U.S.C. §§ 841 (a)(1), 846 and 18
U.S.C. §§ 922 (g)(1), 924 (a)(2), 924 (c)(1). He
has been detained pending trial since May 31, 2017, when this
Court revoked his pretrial release. (Docket No. 816.) Now
before this Court is Pettway's oral motion for release
from custody, which the government opposes. (Docket No. 910.)
For the following reasons, Pettway's motion is granted.
Under the Bail Reform Act, 18 U.S.C. Â§' 3141, et seq.,
pretrial detention is available only pursuant to ' 3142
(e). See 18 U.S.C. § 3142 (a)(4); United States v.
Dillard, 214 F.3d 88, 90-91 (2d Cir. 2000). That
subsection expressly authorizes the pretrial detention of a
defendant upon a judicial finding that ''no condition
or combination of conditions will reasonably assure the
appearance of the person as required and the safety of any
other person and the community.'' 18 U.S.C. §
3142 (e). Factors that must be assessed to make this
determination are set forth in 18 U.S.C. § 3142 (g).
applicable here, given the nature of the charges against
Pettway, is the rebuttable presumption in ' 3142 (e)(3).
Under that provision, it is presumed, subject to rebuttal,
''that no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of the community, '' if there is
probable cause to believe that the person committed one of
the offenses to which the presumption attaches.
the beginning of this case in January 2012, the Honorable
Jeremiah J. McCarthy granted Pettway pretrial release on
and with conditions including home incarceration and
electronic monitoring. (Docket Nos. 5, 6, 7.) Pettway
remained on release until May 31, 2017, at which time this
Court granted the government's motion to revoke
Pettway's release under 18 U.S.C. § 3148. (Docket
Nos. 816, 842.) At that time, this Court found that the
government had made a sufficient showing of probable cause to
believe that Pettway had committed crimes while on
release-particularly contempt of court by way of his social
media usage-and had established by clear and convincing
evidence that Pettway violated the terms of his pretrial
release by violating the protective order and failing to
comply with multiple conditions of his release. (Docket No.
the eve of trial in October 2017, the parties alerted this
Court to a possible conflict of interest involving
Pettway's attorney's previous representation of one
of the government's confidential-source witnesses.
Thereafter, on December 20, 2017, this Court determined that
the possible conflict was in fact a severe, actual,
non-waivable conflict of interest that required the
disqualification and replacement of Pettway's attorney.
(Docket No. 910.) Given these changed circumstances, Pettway
moved for release on home incarceration and electronic
monitoring and indicated that he could live with a family
member at 124 Davidson Avenue.
Having considered Pettway's motion and the circumstances
of his pretrial detention, this Court finds that release on
the original conditions set by Judge McCarthy is appropriate,
assuming that the United States Probation Department finds
124 Davidson Avenue suitable for Pettway's home
incarceration. First, Pettway's pretrial release
violations and indiscretions, while warranting pretrial
detention, were not so serious as to preclude release under
changed circumstances. With the disqualification of his
attorney, Pettway must now prepare this 5-year-old case anew
with replacement counsel. That preparation will be
facilitated by Pettway's release. Second, it must now be
unmistakable to Pettway that this Court will not tolerate
even the slightest violation of his release conditions, to
include his use of social media and dissemination of
documents relating to this case. Finally, even considering
the presumption in ' 3142 (e)(3), this Court finds that
the strict imposition of home incarceration and electronic
monitoring will reasonably assure Pettway's future
appearances as required and the safety of any other person
and the community. Pettway's motion for release is
therefore granted, and Pettway is warned that this Court will
have zero tolerance for any future violations.
HEREBY IS ORDERED, that Defendant's Motion for Release is
that Defendant will be released under the same terms and
conditions that he was initially released under (Docket Nos.
6, 7). In addition, Defendant must avoid all contact, direct
or indirect, with any individuals who are or who may become a
victim or potential witness in this prosecution.
that Defendant will not be released under this Order until
the United States Probation Department verifies, assesses,
and approves the appropriateness of 124 Davidson Avenue,
Buffalo, NY, for home incarceration and electronic
that Defendant will not be released before he and counsel
appear before the Honorable Jeremiah J. McCarthy on
Wednesday, December 27, 2017, at 10:00 a.m., at which time
Defendant will be advised of and must confirm his
understanding of the terms and conditions of his release.