United States v. Ottey

          MEMORANDUM ORDER

          Arthur J. Schwab United States District Judge

         I. Introduction

         Pending before this Court is the Defendant's Motion for Reconsideration of Order of Detention and for De Novo Hearing. Doc. 22. The Court has thoroughly reviewed the Defendant's Motion, the Government's Response, and the transcript of the detention hearing of Defendant Ottey conducted by United States Magistrate Judge Robert C. Mitchell. The Motion for Reconsideration (appeal) is now ripe for disposition. In light of Defendant's important liberty interest, the Court's review has been expedited.

         II. Standard of Review

         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. §3141, 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 incorporate the transcript of the proceedings before the Magistrate Judge including any exhibits admitted therein. United States v. Chagra, 850 F.Supp. 354, 357 (W.D.Pa 1994).

         The law governing the “presumption” of detention is as follows:

Where the record reflects probable cause to believe the defendant has committed a crime of violence or an offense for which the maximum term of imprisonment is ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801, et seq., the Bail Reform Act creates a rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of any other person in the community. 18 U.S.C. § 3142(e); United States v. Perry, 788 F.2d 100, 106 (3d. Cir. 1986). A defendant may rebut the presumption by presenting “some credible evidence” that he will not pose a threat to the community upon his release. United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986) (to rebut the presumption “[t]he 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.”) citing United States v. Jessup, 757 F.2d 378 (1^st Cir. 1985); United States v. Giampa, 755 F.Supp. 665, 668 (W.D. Pa. 1990). United States v. Turner, 2008 WL 4186212 *1 (W.D. Pa. 2008).

         According to Section 3142(g), the following four factors must be considered:

(1) the nature and circumstances of the offense;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including his character, family, employment, finances, length of residence, ties to community; drug abuse history, criminal history and record of appearance at court proceedings and whether he was on bond at the time of the charged offense; and

(4) the nature and seriousness of the danger posed by the person's release.

         III. Background/Discussion

         On March 8, 2018, a Criminal Complaint (doc. 3) was filed against Defendant Ottey, and his Co-Defendant Campbell, charging both with Conspiracy to Commit Armed Bank Robbery (18 U.S.C. § 371, 18 U.S.C § 2113(d)) and Armed Bank Robbery (18 U.S.C § 2113(d), 18 U.S.C. §2), charging defendant Campbell with Brandishing a Firearm During and In Relation to a Crime of Violence (18 U.S.C § ...