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United States v. Levy

United States District Court, W.D. Pennsylvania

February 13, 2015

UNITED STATES OF AMERICA,
v.
Christopher LEVY, Defendant.

MEMORANDUM OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction and Procedural History

On January 20, 2015, the court held a hearing with respect to whether defendant Christopher Levy ("Levy") should be detained pretrial. After a de novo review of the detention hearing before the magistrate judge, the pretrial services report, the evidence presented at the hearing, and the arguments of counsel, the court deter-mined that Levy should be detained without bond pending trial. This memorandum opinion sets forth the reasons for the court's decision, which were detailed on the record.

On January 12, 2015, the government filed a criminal complaint against Levy.[1] (ECF No. 1.) The complaint alleged that Levy conspired to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and possessed a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). On January 12, 2015, Levy made an initial appearance and was temporarily detained. (ECF No. 4.) On January 14, 2015, the magistrate judge held a preliminary examination and a detention hearing. (ECF No. 19.) The magistrate judge found that probable cause exists with respect to both charges. (ECF No. 21.) The magistrate judge further determined that Levy should be released on a $30, 000 unsecured bond with a number of conditions, including a curfew. (Prelim. Ex. Hr'g Tr. 114:16-116:11, Jan. 14, 2015, ECF No. 44-1.) The government orally moved to stay the order, and the magistrate judge denied the motion. (Id. at 124:6-11.) The government filed a motion and a supplement with this court for an emergency stay of the pretrial release order and a de novo hearing. (ECF Nos. 17, 18.)

On January 15, 2015, the court held a hearing on the government's emergency motion and granted the stay. The de novo hearing was held on January 20, 2015. On February 3, 2015, a grand jury returned a four-count indictment against Levy. Count one charges Levy with conspiracy to commit the Hobbs Act robbery, and count two charges Levy with possession of a firearm in furtherance of a crime of violence. Count three alleges that Levy possessed a firearm while subject to a court order that met the requirements of 18 U.S.C. § 922(g)(8). Count four charges that Levy possessed a firearm while being an unlawful user of or addicted to a controlled substance. The charges in counts three and four were not before the court at the de novo detention hearing and did not affect the court's decision.

II. Legal Standards

A judicial officer must determine whether a defendant should be detained or released pending trial. 18 U.S.C. § 3142(a). A defendant may be released on personal recognizance or an unsecured appearance bond, or, if necessary to assure the appearance of the defendant and safety of the community, release may be subject to conditions. 18 U.S.C § 3142(b) and (c). If no condition or combination of conditions will reasonably assure the appearance of the defendant or safety of the community, the judicial officer shall order that the defendant be detained prior to trial. 18 U.S.C. § 3142(e). In certain cases, a rebuttable presumption that no conditions or combination of conditions will reasonably assure the appearance of defendant as required or the safety of the community applies. 18 U.S.C. § 3142(e)(3). This rebuttable presumption applies to, among others, cases in which there is probable cause to believe that the defendant committed an offense under 18 U.S.C. § 924(c). 18 U.S.C. § 3142(e)(3)(B).

If the presumption applies, the defendant must "produce some credible evidence forming a basis for his contention that he will appear and will not pose a threat to the community." United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986) (per curiam). This burden of production is "relatively light." United States v. Chagra, 850 F.Supp. 354, 357 (W.D. Pa. 1994). The factors to be considered by the court in determining whether the defendant has rebutted the presumption are set forth in 18 U.S.C. § 3142(g). Carbone, 793 F.2d at 561. The four factors are

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(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; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g).

If the presumption is rebutted, the government must show that no condition or combination of conditions would reasonably ensure the appearance of the defendant or safety of the community if defendant were to be released. 18 U.S.C. § 3142(f). Proving that the defendant poses a danger to the community requires clear and convincing evidence. Id. With respect to proving that the defendant is a flight risk, the government's burden is a preponderance of the evidence. United States v. Himler, 797 F.2d 156, 161 (3d Cir. 1986). The factors in 18 U.S.C. § 3142(g) guide the court's analysis. Id. The rebutted presumption retains evidentiary weight. United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991).

Applying the above standards, the court reviews the magistrate judge's detention decision de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985).

III. Discussion

As an initial matter, the court notes the application to this case of the rebuttable presumption "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)(3). The magistrate judge found probable cause to believe Levy conspired to commit the Hobbs Act robbery and possessed a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Offenses under § 924(c) are subject to the rebuttable presumption. 18 U.S.C. § 3142(e)(3)(B).[2]

A. Evidence Before the Magistrate Judge

At the hearing before the magistrate judge, the government proffered the testimony of Robert Kavals ("Kavals"), a detective with the Pittsburgh Bureau of Police who was assigned to the Drug Enforcement Agency as a task force officer. The criminal charges against Levy were the product of a large-scale investigation of suspected drug trafficking in the Western District of Pennsylvania. (Prelim. Ex. Hr'g Tr. 5:7-12, ECF No. 44-1.) The investigation focused on the members of a motorcycle club called the LAW, which is an acronym for "Lords Among Warriors." (Id. at 5:17-21.) The investigation took place over several months and involved Title III telephone intercepts, ...


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