The opinion of the court was delivered by: Michael M. Baylson, U.S.D.J.
Pending before this Court are several motions filed by Defendant Kenneth Mitan seeking release from pre-trial detention or in the alternative a de novo hearing, and dealing with related procedural and evidentiary issues (Doc. Nos. 47, 48, 50, 51, 52, 66).
Defendant Mitan and three co-defendants were indicted on December 18, 2008 for wire and mail fraud (Doc. No. 1). Defendant made an initial appearance before Magistrate Judge Caracappa on December 23, 2008 (Doc. No. 10). The Government informed Defendant prior to his appearance that it intended to move to detain Defendant pending trial, and Defendant consented to argue the Government's Motion for Pretrial Detention [hereinafter "Govt's Mot."] at that hearing. (Govt's Resp. Def.'s Memo. 1-2.) Both Defendant and the Government proceeded by proffer at the hearing. (Id.) The detention hearing was continued at the conclusion of the hearing pending a Pretrial Service Report.
On January 6, 2009, Magistrate Judge Strawbridge resumed Defendant's detention hearing and entered a Pre-Trial Detention Order for Defendant Mitan on January 7, 2009 (Doc. No. 24).*fn1 Judge Strawbridge found, pursuant to 18 U.S.C.A. § 3142(e), that the government had proved (1) by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of defendant as required and (2) by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of other persons and the community. (Id.) Judge Strawbridge considered the factors listed in 18 U.S.C. § 3142(g), including the nature and circumstances of the offense charged, the weight of evidence against Defendant, and the history and characteristics of the Defendant. Judge Strawbridge also found that Defendant posed a danger to the community.
On January 13, 2009, Defendant filed his Objections to Pre-Trial Detention Order and for Remand to Continue Evidentiary Hearing (Doc. No. 26). The Government responded to the Objections (Doc. No. 35), and Mitan replied (Doc. No. 45). Defendant also filed a Motion to Release Defendant on Own Recognizance or in the Alternative for a De Novo Hearing on January 26, 2009 (Doc. No. 51).
On January 30, this Court held a hearing to consider outstanding motions. At the hearing, this Court stated that it would treat Defendant's Objections and Motion to Release Defendant as an appeal of Judge's Strawbridge's Order denying pre-trial release, pursuant to 28 U.S.C. § 3145(b). (See Order, Doc. No. 58.) Additionally, this Court ordered Defendant to file a brief in support of his appeal that responded to the Government's initial Motion for Pretrial Detention and to describe the witnesses and testimony he would produce at a detention hearing if granted. (Id.) Mitan filed a Memorandum in Support of Request for Release or Evidentiary Hearing for Determination of Bond (hereinafter "Def.'s Memo.") on February 11, 2009 (Doc. No. 66). The Government responded on February 18, 2009 (Doc. No. 82), and Defendant replied on February 24, 2009 (Doc. No. 86). Defendant has also filed several motions related to his pretrial release arguments, including two Motions to Strike (Doc. Nos. 47, 48), a Motion for Use-Fruits Immunity (Doc. No. 50), and a Motion for Issuance of Subpoenas (Doc. No. 52).
Under 18 U.S.C. § 3145(b), a defendant may file a motion for revocation or amendment of a magistrate judge's detention order with the court having original jurisdiction over the offense. The district court's standard of review of the magistrate judge's order is de novo. See United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir. 1985); United States v. Perry, 788 F.2d 100, 103 (3d Cir. 1986) (noting the district court's de novo review). The district court is not required to hold a new evidentiary hearing but should carefully consider the decision and reasoning of the Magistrate Judge and must fully explain the results it reached and the reason for it. Delker, 757 F.2d at 1395.
As an initial matter, the government must demonstrate that there are grounds for a detention hearing under the specific provisions of § 3142 (f)(1) or (f)(2). U.S. v. Butler, 165 F.R.D. 68, 71 (N.D. Ohio 1996). As the Third Circuit explained:
In a nutshell, a detention hearing, i.e., for considering detention as opposed to setting conditions of release, may be held upon an appropriate motion in a case involving:
(1) a crime of violence, 18 U.S.C. § 3142(f)(1) (Supp. II, 1985);
(2) a crime punishable by life imprisonment or death, Id.;
(3) a federal narcotics offense with a potential sentence of ten years or more, Id.;
(4) any felony following convictions for two or more offenses in the nature of the above, whether state or federal, Id.;
(5) a serious risk of flight, 18 U.S.C. § 3142(f)(2) (Supp. II, 1985); or
(6) a serious risk that the person will attempt to obstruct justice or to threaten, injure or intimidate a witness or juror. Id.
Once sufficient grounds for a detention hearing have been found, the judicial officer conducting the detention hearing shall consider the factors outlined in § 3142(g), including (1) the nature and circumstances of the offense charged, (2) the weight of 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.*fn2 18 U.S.C.A. § 3142(g). The statute further describes history and characteristics considerations as follows:
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; 18 U.S.C.A § 3142(g)(3). However, the Third Circuit has limited detention based on a defendant's danger to the community only to a showing that he is likely to commit one of the proscribed offenses listed in § 3142(f)(1). Himler, 797 F.2d at 160.
At a detention hearing, the defendant has certain procedural safeguards, such as the right to be represented by counsel or have counsel appointed, "the opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise." 18 U.S.C. § 3142 (f). The court has discretion whether to accept evidence by live testimony or proffer. Delker, 757 F.2d at 1396. However the rules concerning admissibility of evidence in criminal trials do not apply to information presented and considered at the hearing. Id. (citing 18 U.S.C. § 3142(f)). "The process that is due is only that which is required by and proportionate to the purpose of the proceeding." USA v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996).
The government's burden to demonstrate a risk of flight is the preponderance of the evidence standard. Himler, 797 F.2d at 161.
IV. Discussion of Pretrial Detention Factors
Since this Court reviews the issue of Defendant's pre-trial detention de novo, it will examine the Government's arguments in its Motion for Pretrial Detention together with Defendant's objections and counter-arguments. The Government contends that the following factors weigh in favor of Defendant's detention:
* Defendant's prior criminal contempt conviction in Michigan and subsequent flight from the state, resulting in Defendant being a fugitive from the state for over one year until he was extradited pursuant to a Governor's warrant
* Defendant's outstanding bench warrant in New Jersey for failure to appear for an arraignment on criminal charges similar to those at issue in this case
* Defendant's pending criminal case in Missouri on similar charges
* Defendant's lack of a permanent address and extensive domestic and foreign travel
* Defendant's motive to flee based on a personal relationship in Russia
* Defendant's lack of legitimate employment
* Defendant's multiple passports and drivers' licenses, at least one with incorrect information leading to a ...