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United States v. Kenney

August 21, 2006

UNITED STATES OF AMERICA,
v.
JAMES KENNEY, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM ORDER

On July 7, 2006, pursuant to 18 U.S.C. § 3145(b), defendant James Kenney ("defendant") filed a motion for bond (Doc. No. 22). This court considered defendant's detention pursuant to a de novo review of the record before the magistrate judge and matters raised at a hearing held on August 4, 2006, at which evidence and proffers of evidence were presented. Upon a review of the record, evidence and proffers of evidence presented at the hearing, the pleadings and briefs in this case, the pretrial services report, and the arguments of counsel, this court denied on the record defendant's motion for bond for reasons set forth on the record and more fully set forth herein.

Procedural History

Defendant was indicted on April 18, 2006, on two counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts I and II), six counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts III, IV, V, VI, VII, VIII), one count of unauthorized use of an access device in violation of 18 U.S.C. § 1029(a)(2) (Count IX), and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1) (Count X) (Doc. No. 1.). The government filed a motion for an arrest warrant on April 18, 2006 (Doc. No. 6) and the motion was granted (Doc. No. 7). On May 2, 2006, defendant was arrested in the District of South Carolina. On May 19, 2006, defendant was arraigned. (Doc. No. 10). Pursuant to a request for detention by the government on the basis "[t]hat a serious risk exists that defendant will flee," a hearing to detain defendant was held that same day before the magistrate judge. (Doc. Nos. 13, 18). At the detention hearing, the magistrate judge ruled that defendant should be released on conditions that included third-party custodianship by his mother. Defendant was to remain in the custody of the U.S. Marshals pending execution of bond papers by his mother. The magistrate judge was subsequently informed that defendant's mother had changed her mind, did not wish to act as defendant's third-party custodian, and did not sign defendant's bond papers. Defense counsel informed the magistrate judge that defendant waived the issue of detention at that time and would potentially seek to revisit the issue later.

On July 7, 2006, defendant filed a motion for bond requesting that defendant be released on bond, but that the court not impose two conditions the magistrate judge intended to impose, i.e., home detention and that defendant not leave Allegheny County, Pennsylvania while on bond. (Doc. No. 22). Defendant argued that the government failed to prove, by a preponderance of the evidence, that home detention and a restriction on leaving Allegheny County, Pennsylvania, were the least restrictive conditions needed to assure defendant's appearance in court. A hearing on defendant's motion was originally scheduled for July 21, 2006. Defendant filed a motion requesting a new bond hearing date due to defendant's mother being on vacation until July 31, 2006. (Doc. No. 23). The court granted that motion and scheduled a bond hearing for August 4, 2006. (Doc. No. 24). The government filed a response in opposition to defendant's motion for bond on July 20, 2006 arguing that defendant should be detained by reason of serious risk of flight. (Doc. No. 25). Defendant filed a reply brief on July 27, 2006. (Doc. No. 26).

The court held a hearing on the motion on August 4, 2006. Defendant, counsel for defendant, and counsel for the government attended the hearing. At the hearing, evidence and proffers of evidence were presented including, but not limited to, information concerning defendant's history and the circumstances of his arrest on this charge. The court also heard testimony from David Anderchak ("Anderchak"), United States Postal Inspector, and Dennis Martin ("Martin"), United States Pretrial Services Officer. This court denied defendant's motion on the record. On August 7, 2006, defendant filed a motion for reconsideration of the court's order on the basis that defendant believed the court had set a condition that he post a cash bond of $10,000 in violation of 18 U.S.C. § 3141(c)(2). (Doc. No. 29). On August 15, 2006, defendant renewed his objections to his detention on the record at the time of defendant's guilty plea to all counts of the indictment.

Standard of Review

The court's standard of review of a magistrate judge's denial of pretrial detention is de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir.1985).

Discussion

A. Legal Framework

The structured system of the Bail Reform Act, 18 U.S.C. §§ 3141 et seq., regarding the release or detention of a defendant before trial seeks to ensure that the interests of the defendant and the public are carefully considered and contemplated before release or detention is ordered.

See United States v. Lemos, 876 F.Supp. 58, 59 (D.N.J. 1995). A defendant is to be granted pretrial release on personal recognizance or on an appearance bond subject to certain conditions including that the defendant not commit a Federal, State, or local crime during the period of release. . . ., unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.

18 U.S.C. § 3142(b).

When the government files a motion seeking the pretrial detention of a defendant, the court will hold a detention hearing. Lemos, 876 F.Supp. at 59 ( "A condition precedent to detention without bail under subsection (e) is that a hearing be held as provided in subsection (f)."). At the hearing the court must first determine whether one of six circumstances exists. One of those circumstances is a serious risk of the defendant's flight. 18 U.S.C. § 3142(f)(2)(A).*fn1

The judicial officer needs to determine by a preponderance of the evidence that one of those circumstances exists. See United States v. Gossett, 2005 U.S. Dist. LEXIS 14938, *5-6 (S.D. Ind. July 19, 2005). If it is so determined, then the judicial officer must consider whether there is any condition or combination of conditions that 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. "The hallmark of the Bail Reform Act of 1984 is its requirement that an arrested person be admitted to bail only under conditions which will 'reasonably assure both the appearance of the person as required and the safety of any person and the community'." United States v. Himler, 797 F.2d 156, 158 (3d Cir. 1986). The court is charged with determining whether there exists "any condition or combination of conditions set forth in [18 U.S.C. § 3142(c)] 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(f).

The facts the court relies upon to support a finding that there is no condition or combination of conditions that will reasonably assure the appearance of the defendant as required must be supported by a preponderance of the evidence, while a finding that there is no condition or combination of conditions that will reasonably assure the safety of any other person and the community must be supported by clear and convincing evidence. As noted, the government bears the burden of showing by a preponderance of the evidence that no condition or set of conditions will reasonably assure the appearance of the defendant. Himler, 797 F.2d at 161 ("We see no reason to deviate from the traditional preponderance of the evidence standard [with respect to risk of flight] in the absence of express direction from Congress. We assume that Congress acted deliberately in setting forth the burden for a danger to the community determination while remaining silent as to the burden for a risk of ...


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