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United States of America v. Reggie Harris

May 3, 2011

UNITED STATES OF AMERICA,
v.
REGGIE HARRIS, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

On February 11, 2011, defendant Reggie Harris ("defendant") filed a motion to reconsider order of detention. (ECF No. 141.) This court held a hearing on March 2, 2011 and March 18, 2011, at which evidence and proffers of evidence were presented. Taking into consideration the evidence presented at the hearing, the pleadings and record in this case, and the arguments of counsel, this court denied defendant's request for release. This memorandum opinion and order sets forth the reasons for the court's decision, which were detailed on the record.

Background

I.Procedural background

On December 1, 2009, a grand jury returned a superseding indictment at criminal number 09-305 charging defendant in count three with conspiracy to retaliate against a witness or information in violation of 18 U.S.C. § 1513(f). (ECF No. 30.) On January 4, 2011, a grand jury returned a second superseding indictment charging defendant with the same conspiracy charge in count three. (ECF No. 125.) The maximum sentence for count three is a term of imprisonment of not more than twenty years.

A detention hearing was held on November 9, 2009. At the hearing, the magistrate judge determined that "there is probable cause for Mr. Harris to proceed to trial in this case. Additionally, after conducting a detention hearing under the Bail Reform Act, I conclude that the facts require the defendant to be detained pending Trial. (Detention Hr'g Tr. Nov. 9, 2009 (ECF No. 40), Ex. 1 at 43.) The magistrate judge ordered an order of detention pending trial. (ECF No. 29.)

On December 18, 2009, defendant filed a motion to revoke order of detention. (ECF No. 40.) This court held a de novo hearing on January 12, 2010, and January 27, 2010. The court denied defendant's request for bond and issued a memorandum opinion and order which set forth the reasons for the court's decision that were detailed on the record. (ECF No. 68.)*fn1 On March 18, 2011, the court denied defendant's request for reconsideration of that order.

II.Evidence presented during the hearing for reconsideration During the hearing on defendant's motion to reconsider his detention, defendant made the following arguments: (1) hand grenades obtained during defendant's arrest were not "live" but were inert replicas; (2) contrary to previous testimony, a photograph alleged to contain defendant flashing a gang symbol was not the defendant; (3) the testifying agent perjured himself with respect to the picture alleged to contain defendant; (4) the delay in going to trial was caused by the government; and (5) if released, defendant's family would provide him a place to stay and he was offered employment.

The government responded that, (1) the grenades were "live" to the extent the fuse could be detonated; (2) the testifying agent did not commit perjury because he reached the conclusion in good faith that defendant was pictured in the photograph; (3) defendant was responsible for eight months of the delay because he requested several extensions of time; and (4) defendant's criminal history and probation violations weighed against his release.

The court heard testimony from officers Robert Synan ("Synan") and L.D. Smithers ("Smithers") who were employed as police officers and bomb technicians for the Allegheny County Police department. (Hr'g Tr. Mar. 2, 2011 at 28, 49.) Synan was employed by the police department for four and a half years, id. at 28, and Smithers had sixteen and a half years' experience as a bomb technician. (Id. at 49.)

Synan testified that, after personally examining the grenades in question, the fuse inside the grenades was live and it could explode if the pin was pulled. (Id. at 35.) The grenades could explode despite the lack of an explosive compound inside the body of the grenade and despite the presence of a hole in the bottom of the grenade. (Id.) The explosion resulting from detonating the fuse could damage a hand or "shred some of your fingers." (Id.) Synan explained that the grenades could be made more dangerous, or "live full fragmentation" grenades, by adding explosive powder and sealing the holes; a procedure a layperson could accomplish in fifteen minutes by purchasing ten or twelve dollars-worth of materials at a Wal-Mart . (Id. at 36-37.)

Synan noted that military practice grenades are normally painted blue, but the grenades at issue were painted black. (Id. at 37.) Synan opined that it was possible the grenades were either altered from their original blue color as practice grenades, or they were official grenades without any powder. (Id.) When asked to clarify the type of grenades at issue, Synan concluded they were M69 grenades, and declined to classify them as "training" grenades because they were painted black. (Id. at 47.)

Smithers testified that, after the grenades were recovered, the pins were pulled and they exploded because the fuses were live, despite the absence of any additional material inside the body of the grenades. (Id. at 51.) Smithers explained that if the grenades were filled with explosive powder and sealed at their bottoms, they "would have functioned as a grenade is designed to function. Basically, blowing itself apart into small pieces which would fly out in all directions and injure or kill somebody." (Id. at 52.) Smithers concluded that the grenades were "live" grenades. (Id. at 56.)

Standard of review

The Court of Appeals for the Third Circuit has recognized that "at some point due process may require a release from pretrial detention," and "a determination under the Bail Reform Act that detention is necessary is without prejudice to a defendant petitioning for release at a subsequent time on due process grounds." United States v. Accetturo, 783 F.2d 382, 388 (3d Cir. 1986). When considering a motion to reconsider an order of detention, a court must consider the "factors relevant in the initial detention determination, such as the seriousness of the charges, the strength of the government's proof that defendant poses a risk of flight or a danger to the community, and the strength of the government's case on the merits," as well as the "length of detention that has in fact occurred, the complexity of the case, and whether the strategy of one side or the other has needlessly added to the complexity." Id. The length of the detention is critical due to the "crucial liberty interest at stake." United States v. Suppa, 799 F.2d 115, 120 (3d Cir. 1986).

Discussion

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). 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). Section 3142(c)(1)(B) of the Bail Reform Act sets forth a nonexclusive list of conditions that a court may impose upon ...


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