The opinion of the court was delivered by: Slomsky, J.
Defendant Carlos Robe Martinez, Jr. has filed a Motion for Pretrial Release (Doc. No. 144) and a Memorandum of Law In Support of Defendant's Motion For Pretrial Release (Doc. No. 178).*fn1 On October 10, 2010, the Government filed a response in opposition to Defendant's Motion for Pretrial Release. (Doc. No. 173). This Court held a hearing on Defendant's Motion on October 27, 2010. Counsel for Defendant and the Government presented arguments in support of their respective positions. Defendant offered proffers through his counsel and did not present any witnesses. Taking into consideration the arguments and briefs of Counsel and the record in this case, the Court will deny Defendant's Motion for Pretrial Release.
On April 28, 2010, a grand jury returned a Superceding Indictment (Doc. No. 9) charging Defendant in two (2) counts with the following offenses:*fn2
(1) Conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5) (one count) and
(2) Using and carrying a firearm during a violent crime in violation of 18 U.S.C. § 924(c) (one count).
The maximum sentence for these offenses is life imprisonment with a mandatory minimum of five (5) years imprisonment.*fn3 (Doc. No. 173 at 1.)
On July 21, 2010, Defendant was arrested on the Superceding Indictment. (Doc. No. 173 at 2.) On July 29, 2010, United States Magistrate Judge Henry S. Perkin ordered that Defendant appear before United States Magistrate Judge Arnold C. Rapoport for arraignment. (Doc. Nos. 67, 76.) Defendant appeared before Judge Rapoport on August 3, 2010 and at that time counsel was appointed to represent Defendant. (Doc. No. 79.) Defendant stipulated to pretrial detention. (Id.) As noted above, on September 14, 2010, Defendant filed a Motion for Pretrial Release. (Doc. No. 144.) On October 20, 2010, the Government filed a response in opposition. (Doc. No. 173.) Defendant filed a Memorandum in Support of his Motion for Pretrial Release on October 26, 2010. (Doc. No. 178.)
On October 27, 2010, the Court held a hearing on Defendant's Motion for Pretrial Release (the "Hearing"). At the Hearing, Defendant's Counsel made three arguments in support of Defendant's Motion for Pretrial Release. First, Counsel argued that Defendant was the least culpable of the named defendants in the Superceding Indictment. (Hr'g Tr. at 5:20-25.) Second, Counsel argued that if the Court declined to grant Defendant's Motion, Defendant would be subjected to a lengthy detention because of the scope and complexity of the pretrial discovery process. (Id. at 6:2-8.) Finally, Counsel argued that a charge under 18 U.S.C. § 924(c) may not be considered a crime of violence under the Bail Reform Act for purposes of considering pretrial detention. (Id. at 8:8-25.)
Defendant's Motion for Pretrial Release asserts that "with the imposition and enforcement of certain conditions to ensure Defendant's presence at trial," Defendant should be released on bail. (Doc. No. 143 at 3.) At the Hearing, Counsel for Defendant elaborated upon this request and offered house arrest and electronic monitoring as adequate conditions to ensure Defendant's presence at trial. (Hr'g Tr. at 7:13-20.) If released, Defendant plans to reside at his mother's home. (Id. at 19:5-21.)
In response, the Government contended that the charge against Defendant under 18 U.S.C. 924(c) creates a statutory presumption that Defendant is both a danger to the community and a flight risk and for these reasons he must be detained pending trial. (Id. at 21:19--22:2.) The Government also argued that Defendant's lengthy criminal history is a strong indicator that Defendant is not an appropriate candidate for pretrial release. (Id. at 26:6-15.) Finally, the Government argued that Defendant failed to offer any evidence to rebut the presumption that Defendant is a danger to the community and a flight risk. (Id. at 26:20-25.)
By moving for pretrial release, Defendant is in essence requesting a review of Magistrate Judge Rapoport's August 3, 2010 Detention Order. This Court has jurisdiction to review the Magistrate Judge's Detention Order under 18 U.S.C. § 3145(b). Section 3145(b) "requires this Court to make a de novo determination of the findings of fact underlying the detention Order." United States v. Cole, 715 ...