United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA, JUDGE.
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.
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.
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.
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.
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.
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
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.
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.
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).
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.
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 ...