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United States of America v. Larry Dorsey

September 20, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LARRY DORSEY DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

ELECTRONICALLY FILED

MEMORANDUM OPINION

I. Introduction

Pending before this Court is the Government's Motion for De Novo Hearing before District Court for Revocation of Order of Release. Doc. No. 106. The Court has thoroughly reviewed the Government's Motion, the Government's brief in support (doc. no. 124), Defendant's brief in opposition to the Government's Motion (doc. no. 135), and the transcript of the detention hearing of Larry Dorsey conducted by United States Magistrate Judge Maureen P. Kelly on August 18, 2011 (doc. no. 108), wherein Magistrate Judge Kelly granted Defendant's request for release pending trial and set numerous stringent conditions of release (including substance abuse treatment and home detention with electronic monitoring). The appeal is now ripe for disposition. In light of Defendant's important liberty interest, the Court's review has been expedited.

II. Background

The one-count Indictment in this criminal action alleges a drug conspiracy to distribute and possession with intent to distribute a quantity of Oxycodone, a Schedule II controlled substance, and names Defendant Dorsey, and seven (7) other Co-Defendants. Dorsey is charged with one count of conspiracy to distribute 50,000 or more pills of Oxycodone, pursuant to 21 U.S.C. § 846. If convicted, Dorsey faces a maximum of 20 years imprisonment.

On August 18, 2011, following a lengthy detention hearing (the transcript of which the Court has thoroughly reviewed), United States Magistrate Judge Maureen P. Kelly denied the Government's request that Defendant Dorsey be detained pending trial. Magistrate Judge Kelly entered an order releasing Dorsey on an unsecured $50,000 bond, requiring that he install a landline telephone in his residence in the Southern District of Florida, placing him on electronic monitoring (via Radio Frequency monitoring), and restricting travel to only the Southern District of Florida and the Western District of Pennsylvania (surrendering passport).

On August 19, 2011, the Government filed a notice of appeal from Magistrate Judge Kelly's order, and requested a de novo hearing (either in the form of a record review or a formal hearing) before this Court in order to seek revocation of the release order and granting of the Government's request for pretrial detention in accordance with the Bail Reform Act, 18 U.S.C. § 3141, et seq.

In particular, the Government emphasizes that under the Bail Reform Act, 18 U.S.C. § 3142(e)(2), the oxycodone conspiracy crime with which Dorsey is charged creates, "a rebuttable presumption," which arises when "no condition or combination of conditions will reasonable assure the safety of any other person and the community." The Government contends that based upon the evidence presented at the detention hearing, Dorsey was required to overcome the presumption that no condition, or combination of conditions, reasonably exist to protect the community, and Dorsey has failed to rebut the presumption. The Government focuses its appeal on the issues surrounding the seriousness of the crime, the weight of the evidence, and it attempts to poke holes in the reasoned Judgment of Magistrate Judge Kelly, that Defendant's personal and family history, and lack of propensity for flight, are entitled to the weighty consideration these factors received by Magistrate Judge Kelly.

In opposition, Dorsey asserts that the Order of Magistrate Judge Kelly should be affirmed and that he should be released because, as Magistrate Judge Kelly determined, appropriate conditions may be imposed that will assure his appearance at trial, and reasonably assure the safety of the community. Further, contrary to the Government's characterization as a violent felon, Dorsey contends that he has been convicted of only one disorderly conduct relating to intoxication, and DEA Special Agent Tom Cielecy testified at the detention hearing that he had no information concerning any violence that could attributed to Dorsey. In fact, Agent Cielecy testified that when Dorsey was arrested in Florida that he was cooperative and made no attempt to flee. And, notably, the Probation Office in the Southern District of Florida recommends that he be released pending trial. Thus, Dorsey claims that based upon these facts, he has rebutted the presumption of detention, Magistrate Judge Kelly was justified in granting pretrial release, and her Order setting bond with conditions of release should be affirmed.

III. Standard of Review/Discussion

The legal procedure for reviewing a United States Magistrate Judge's decision regarding pretrial detention is governed by 18 U.S.C. § 3145, which states in pertinent part, that:

If a person is ordered released by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court -- (1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release.

The United States Court of Court of Appeals for the Third Circuit has determined that the appropriate standard of review is de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). Even though the new Bail Reform Act, 18 U.S.C. ยง3141, et seq, does not specifically grant de novo review to the District Court, the United States Court of Appeals for the Third Circuit has found that, "nothing in the new Act suggests that Congress intended to change that practice." United States v. Delker, 757 F.2d at 1394. Finally, at the evidentiary level, de novo review does not require an additional or independent evidentiary hearing by the District Court, and the Court may ...


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