United States District Court, W.D. Pennsylvania
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
(1st 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 §
...