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United States v. Ellison

United States District Court, W.D. New York

February 22, 2018

UNITED STATES OF AMERICA,
v.
JERMAINE ELLISON, Defendant.

          DECISION AND ORDER

          HONORABLE RICHARD J. ARCARA, JUDGE.

         The defendant, Jermaine Ellison, is charged in a one-Count Indictment with conspiracy to distribute, and to possess with intent to distribute, crack cocaine in violation of 21 U.S.C. § 846. The United States has moved pursuant to 18 U.S.C. § 3145(a)(1) to revoke a January 22, 2018 conditional pretrial release order of Magistrate Judge Jeremiah J. McCarthy authorizing pretrial release of defendant Ellison. The Court stayed the pretrial release of the defendant by Order entered January 23, 2017.

         The United States argues that defendant Ellison should be detained pending trial pursuant to 18 U.S.C. § 3142(e) because the defendant has not rebutted applicable statutory presumptions that he is a danger to the community and a serious risk of flight. The defendant is alleged to have conspired to distribute crack cocaine while he was under New York State supervision for a cocaine-trafficking offense, and to have continued to do so later even when he was sent to State prison for that offense.

         In opposing revocation of the pretrial release order, defendant Ellison argues that, although the rebuttable presumptions of danger and flight risk apply, the combination of conditions of release ordered by Magistrate Judge McCarthy, which include home detention or home incarceration at his cousin's residence on electronic monitoring, and the cousin's pledge of the $42, 700 residence, are sufficient to protect the community and to guarantee the defendant's appearances as required.

         On February 16, 2018, the Court heard oral argument and proffers of evidence from the parties. For the reasons that follow, the motion to revoke pretrial release is granted. Defendant Ellison is ordered detained pending trial or a change in circumstances that have a material bearing on whether the defendant can be released pending his trial.

         BACKGROUND

         Defendant Ellison and his co-defendant Tasheka Stalling face a one-Count Indictment returned on January 3, 2018, with conspiring to possess with intent to distribute and to distribute crack cocaine in violation of 21 U.S.C. § 846. That offense carries a maximum term of imprisonment of 20 years. 21 U.S.C. §§ 841(b)(1)(B) and 846.

         The United States' February 16, 2018 proffer in support of pretrial detention emphasizes that defendant Ellison was caught conspiring with Stalling to distribute cocaine even though the defendant was in New York State prison at Greene Correctional Facility serving a sentence for Criminal Possession of a Controlled Substance in the Fifth Degree in violation of New York Penal Law § 220.06 related to cocaine distribution. The United States also emphasizes that the defendant's prior conviction for a felony drug offense subjects him to a mandatory-minimum term of imprisonment[1].

         More specifically, the United States proffers that it has recordings of telephone conversations of defendant Ellison's while he was imprisoned at Greene Correctional Facility during which the defendant and his alleged co-conspirator, Stalling, spoke in coded language about Stalling's distribution of cocaine on their behalf. The United States also has post-arrest admissions by Stalling about her role distributing cocaine with the defendant's help, and oral admissions by the defendant to FBI task force members during an January, 2017, interview at Greene Correctional Facility about his crack cocaine distribution. In addition, the United States has evidence of controlled buys of crack cocaine from Stalling while the defendant was imprisoned at Greene Correctional Facility, as well as evidence of controlled buys of crack cocaine from the defendant during the earlier period of the charged conspiracy, before he was imprisoned.

         Defendant Ellison, for his part, emphasizes that, despite his criminal record, the prospect that his cousin's real property could be taken away if the defendant were to violate any important term of pretrial release creates a powerful incentive for the defendant to behave in a law-abiding manner and to appear as directed. The defendant argues that this economic security, when combined with electronic monitoring conditions, and the fact that the defendant now has vocational training and may be able to find gainful employment, together rebut the presumptions of serious risk of flight and danger to the community.

         DISCUSSION

         If a defendant is ordered released by a magistrate judge, the United States may, under 18 U.S.C. § 3145(a)(1), move for revocation of the release order before the district court. Upon such a motion, the district court performs de novo review of the magistrate judge's release order. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (finding that a district court should “not simply defer to the judgment of the magistrate, but reach its own independent conclusion”). When conducting de novo review, the district court may rely on the record of the proceedings before the magistrate judge and may also accept additional evidence. United States v. Colombo, 777 F.2d 96, 98 (2d Cir. 1985).

         In this case, the United States objects to defendant Ellison's pretrial release on the grounds that he poses a danger to the community and is a serious risk of flight for which no adequate bail conditions are available. The United States therefore has the burden to show by clear and convincing evidence that the danger posed by the defendant cannot be alleviated by any combination of bail conditions. See United States v. Chimurenga, 760 F.2d 400, 405 (2d Cir.1985). It has the burden to show by a preponderance of the evidence a serious risk of flight for which no conditions will reasonably assure the defendant's appearances in court and as otherwise required. Id.

         In determining whether there are conditions of release that will reasonably assure the safety of the community and a defendant's appearances as required, the Court ...


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