IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
: Cr. No. xx-163-01 (RMU)
v. :
:
xxxxxxxxxxxxx, :
:
Defendant. :
MOTION FOR REVIEW OF ORDER OF DETENTION
Defendant xxxxxxxx, through counsel, respectfully moves the court, pursuant to 18 U.S.C. § 3145(b), to review de novo(1) the order of detention entered in this case on April 22, 1996. As grounds for his Motion, defendant xxxxxx shows the court:
Facts
1. Mr. xxxxxx was arrested on April 16, 1996 and charged with distribution of crack cocaine. He was presented on a complaint charging a violation of 21 U.S.C. § 841(a)(1) on April 17, 1996. The government requested that he be held without bond and a hearing was set for April 22, 1996.
2. Following the detention hearing, Magistrate-Judge Deborah A. Robinson ordered Mr. xxxxxx held without bond. Mr. xxxxxx has not previously sought review of that detention order.
3. On May 16, 1996, an indictment was returned charging Mr. xxxxxx in seven counts with various distributions of cocaine base allegedly occurring between March 13, 1996 and April 16, 1996. At arraignment on the indictment on May 29, 1996, undersigned counsel informed the court that she would be seeking review of the order of detention previously entered by the Magistrate-Judge.
Argument
4. Mr. xxxxxx submits that the order of detention should be vacated and that this court should set conditions of release in this case. The Bail Reform Act ("the Act"), 18 U.S.C. §§ 3142, et.seq., creates four bail options: release on personal recognizance, release on conditions, temporary detention and pretrial detention. The Act mandates pretrial release on personal recognizance or unsecured bond ("shall order the pretrial release. . . .", 18 U.S.C. § 3142(b)) unless the court determines that release will not reasonably assure the person's appearance or will endanger the safety of any person or the community. When personal recognizance or an unsecured bond is determined to be inadequate to guarantee appearance or safety, the Act still mandates release ("shall order the pretrial release. . . .", 18 U.S.C. § 3142(c)) subject to specified conditions. The conditions must be the least restrictive conditions necessary to reasonably assure the defendant's appearance and the community's safety. United States v. Fortna, 769 F.2d 243 (5th Cir. 1985), cert. denied, 479 U.S. 950 (1986).
5. There are several factors in the instant case which demonstrate that there are conditions of release which would both guarantee Mr. xxxxxx' appearance and assure the safety of the community. First, Mr. xxxxxx has a very limited criminal record. He was arrested in 1988 for possession of phencyclidine (PCP), but that case was nolle prossed. In 1993 he was convicted of the misdemeanor offense of carrying a pistol without a license, and given a sentence of 180 days, with all but 20 days suspended, followed by a term of two years probation. In February of this year, Mr. xxxxxx was convicted of the misdemeanor of possession of cocaine and placed on probation. Until this arrest, he was in compliance with the terms of that probation.(2)
6. Additionally, Mr. xxxxxx has substantial ties to this community. He is a lifelong resident of the area. His family, including his mother, his wife, and his three children, reside in the Washington metropolitan area. Letters from his family, attached as Exhibits A, B, C, D and E, are compelling evidence of the central role Mr. xxxxxx occupies in the lives of his family members. Additionally, Mr. xxxxxx has a child born to a relationship which pre-dated his marriage. He provides support for that child, in the amount of $100 monthly, through the District of Columbia Superior Court.
7. At the time of his arrest, Mr. xxxxxx was working at the Crystal Clear Waters Company as a delivery man. His employer, Leon Davis, has assured counsel that if this court releases him, Mr. xxxxxx has a full-time job waiting for him either at Crystal Clear Waters or a carpet-cleaning company, both of which Mr. Davis owns. Also at the time of his arrest, Mr. xxxxxx was working a second job renovating a school in Arlington, Virginia through a temporary agency. That job is no longer available, but if the court releases Mr. xxxxxx, he now has another offer for a second job, through Rose-Mar Liquors. Letters verifying these employment options are attached to this Motion as Exhibits F and G.
8. Apart from the pending charges, there is absolutely no evidence that Mr. xxxxxx is or ever has been a danger to the community. Additionally, since his ties to the community are substantial, there is no reason to think that he would not return to court when given notice to do so.
9. Counsel for Mr. xxxxxx, on his behalf, requests that he be released to the third-party custody of the Department of Corrections for placement in a halfway house. Defendant xxxxxx submits that the supervision provided by the Department of Corrections in a halfway house setting is ample to assure the safety of the community and his presence at all future court proceedings. If Mr. xxxxxx fails to comply with any rule or regulation of the halfway house, he would be immediately remanded to the jail. Placement in a halfway house would allow Mr. xxxxxx to continue to support his family, to continue making child support payments to the Superior Court for his oldest child, and to avoid his family becoming dependents of the city. Trial in this case is set for September 9, 1996, giving Mr. xxxxxx three months in which to make substantial contributions to his family. Given the availability of a less onerous alternative, one which would protect the community, guarantee Mr. xxxxxx appearance at all future court proceedings, and benefit his minor children, a halfway house is a reasonable alternative to preventive detention.
For the foregoing reasons, Mr. xxxxxx respectfully requests that his Motion be granted.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
________________________
Reita Pendry
Assistant Federal Defender
625 Indiana Avenue, N.W. #550
Washington, D.C. 20004
(202)208-7500
CERTIFICATE OF SERVICE
I certify that I served a copy of the foregoing Motion to Review Order of Detention
upon Mary Murphy, Esq., Assistant U. S. Attorney, by faxing a copy to her at her offices
at 555 4th Street, N.W., Washington, D. C. 20001, and by mailing a copy to her, postage
prepaid, addressed to that same address, this 4th day of June, 1996.
___________________________
Reita Pendry
Counsel for Gregg A. xxxxxx
1. Courts are in agreement that under 18 U.S.C. § 3145(c), the district court should review the magistrate's findings de novo and make its own independent conclusions concerning conditions of release. See, e.g., United States v. Leon, 766 F.2d 77 (2d Cir. 1985); United States v. Fortna, 769 F.2d 243 (5th Cir. 1985), cert. denied 479 U.S. 950 (1
1986).
2. A drug test administered following arrest in this case was negative, according to information furnished to the court at arraignment in this case.