United States District Court, W.D. Pennsylvania
JOY FLOWERS CONTI, Chief District Judge.
I. Introduction and Procedural History
On February 10, 2015, the court held a de novo hearing to determine whether defendant Scott Kulikowski ("Kulikowski") should be detained pretrial. After a 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 determined that Kulikowski 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 two criminal complaints against Kulikowski. (ECF No. 1.) The complaints alleged that Kulikowski conspired to possess with intent to distribute and distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 846 (Crim. No. 15-19), and 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) (Crim. No. 15-22). On January 13, 2015, Kulikowski made an initial appearance and was temporarily detained. (ECF No. 14.) On January 14, 2015, the magistrate judge held a preliminary examination and a detention hearing at both case numbers. At Criminal No. 15-19, the magistrate judge found that probable cause existed to support the drug conspiracy charge. (ECF No. 34.) With respect to the charges at Criminal No. 15-22, the magistrate judge found that probable cause existed for the Hobbs Act conspiracy, but probable cause did not exist for the firearm charge. (ECF No. 20.) The magistrate judge further determined that Kulikowski should be released on a $30, 000 unsecured bond with a number of conditions, including a curfew. (Prelim. Ex. Hr'g Tr. 120:14-121:13, 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 14, 2015, the court held a hearing on the government's emergency motion and granted the stay. The de novo hearing was held, after a continuance requested by Kulikowski, on February 10, 2015. On February 3, 2015, a grand jury returned two indictments against Kulikowski. At Criminal No. 15-19, the indictment charges Kulikowski with conspiracy to possess with intent to distribute and distribute five kilograms or more of cocaine. At Criminal No. 15-22, the indictment charges Kulikowski with conspiracy to commit the Hobbs Act robbery and possession of a firearm in furtherance of a crime of violence.
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, among others, to cases in which there is probable cause to believe that the defendant committed an offense under 18 U.S.C. § 924(c) or an offense under the Controlled Substances Act, 21 U.S.C. §§ 801-904, for which the maximum term of imprisonment is ten years or more. 18 U.S.C. § 3142(e)(3).
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).
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" applies at both criminal numbers. 18 U.S.C. § 3142(e)(3). An indictment charging a defendant with violation of an offense enumerated in 18 U.S.C. § 3141(e)(3) is sufficient to establish probable cause triggering the rebuttable presumption. United States v. Suppa, 799 F.2d 115, 119 (3d Cir. 1986). The indictment at Criminal No. 15-19 charges Kulikowski with conspiracy to possess with the intent to distribute and distribute five kilograms or more of cocaine. The rebuttable presumption applies to this charge because it an offense under the Controlled Substances Act for which the maximum term of imprisonment is ten years or more. 21 U.S.C. § 841(b)(1)(A) (maximum term of imprisonment is life). The indictment at Criminal No. 15-22 charges Kulikowski with conspiracy to commit a Hobbs Act robbery and possession of a firearm in furtherance of a crime of violence. Possession of a firearm in furtherance of a crime of violence is a violation of 18 U.S.C. § 924(c), which triggers the rebuttable presumption. 18 U.S.C. § 3142(e)(3)(B). Although the magistrate judge did not find probable cause to support the § 924(c) charge at the preliminary examination, the subsequent return of an indictment by the grand jury establishes probable cause for that charge. Suppa, 799 F.2d at 119.
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 Kulikowski 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, physical and remote surveillance, and confidential informants. ( Id. at 6:10-15.) Kavals was one of the prime monitors of the wiretaps during the investigation. ( Id. at 4:20-23.)
1. Government's Evidence About Drug Conspiracy Charge
The government proffered that it recorded Kulikowski's codefendant Raymond Kober ("Kober") speaking about Kulikowski. Kober stated on the recording: [H]e has me re-up it for him. He's getting shit that's already turned, one into three, one into four. Sometimes he'll take two grams out and he'll have me one-on-one on that. And then later, he used to pay me $100 every time. The last couple times he lost track, I guess. I guess I do it for free now, and he will take a couple of grams out, have me double it. So if he has two, he leaves here with four.
( Id. at 7:3-11.) The government intercepted a call between Kulikowski and Robert Johnson ("Johnson"). Kulikowski expressed concern about the number of people coming in and out of Kober's house. ( Id. at 18:6-18.) Kulikowski stated, "I say within the next six months we get hit with RICO." ( Id. at 18:15-16.) On cross-examination, Kavals testified that he was aware of "five or six" calls between Kulikowski and Kober regarding drug trafficking activity. ( Id. at 45:8-13.) There was no proffer or testimony about the contents of these conversations.
In July 2014, there was a controlled purchase of four-and-a-half ounces of cocaine from Kober. ( Id. at 6:15-19.) Agents conducted a search of Kulikowski's house on January 12, 2015, and recovered a firearm from his LAW motorcycle vest and two digital scales. ( Id. at 19:22-25.)
2. Government's Evidence About Robbery Conspiracy and Firearm Charges
The government proffered that there were a number of calls intercepted between Kulikowski and his codefendants, Kober and Christopher Levy ("Levy"). On September 7, 2014, Kulikowski told Levy that a business in the Strip District neighborhood of Pittsburgh had a large sum of cash on the premises. ( Id. at 8:18-9:22.) Kulikowski told Levy that an employee of the business would not fight "[i]f you go in there like you're going to go in." ( Id. at 9:5-6.) Levy responded, "I got to find me a little shotgun I had lying around." ( Id. at 9:7-8.) On the night of September 7, 2014, Kober told Levy to "be careful tomorrow, if you do that other thing. Don't be stupid. If it don't look right. Don't do it." ( Id. at 9:13-16.)
On September 8, 2014, police officers followed Levy as he left his house and proceeded to the location of the business. When Levy was approximately a couple of blocks away from the business, police stopped him. ( Id. at 9:22-25.) When Levy was stopped, police observed him trying to hide a gun, which was recovered when police searched the vehicle. ( Id. at 9:25-10:4.) At the time, Levy was the subject of a protection from abuse ("PFA") order that prohibited him from possessing a firearm. ( Id. at 10:4-6.)
Levy was taken into custody, but was granted bail on the state firearms charge. Soon after Levy was released, he called Kulikowski and said, "I fumbled the ball on that one. Dude, they got me a block away." ( Id. at 11:3-4.) Levy additionally told Kulikowski that he would call the subject of the protection from abuse order and tell her to drop it. ( Id. at 16:19-25.) He said, "She got to drop this PFA. That's the only thing holding me right now, that PFA; the gun and all that." ( Id. ) On January 12, ...