IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
UNITED STATES OF AMERICA )
)
vs. ) CRIMINAL ACTION
) NO. xxxxxxxxx
xxxxxxxxxxxxx )
__________________________________________)
MOTION FOR DE NOVO REVIEW
OF THE ISSUE OF BOND FOR xxxxxxxxxx
COMES NOW xxxxxx, by and through undersigned counsel, and moves this Court for a de novo review of whether or not Mr. xxxxxxx should be released on a reasonable bond. Mr. xxxxxxx further requests that this Court order that an unsecured bond be set in his case. In support thereof, Mr. xxxxxxx shows as follows:
STATEMENT OF FACTS
Mr. xxxxxxx is a British citizen. In February of 1995 Mr. xxxxxxx entered the United States. Since his entry into the United States, Mr. xxxxxxx has lived in the Atlanta area.
Mr. xxxxxxx was arrested on February 16, 1996 for violations of 8 U.S.C. 1325 and 1326. At a bond hearing held on February 22, 1996, United States Magistrate Judge Gerrilyn G. Brill ordered that Mr. xxxxxxx be held without bond. A copy of Judge Brill's Order of Detention Pending Trial is attached hereto as Exhibit "A".
On May 2, 1996, the defense filed a Motion for Revocation of Detention Order. In this new motion Mr. xxxxxxx presented new evidence that indicates he is not a risk of flight. Specifically, Mr. xxxxxxx offered xxxxxx, a personal friend, as a person willing to co-sign an unsecured bond. Mr. xxxxx has known Mr. xxxxxxx since 1985, and also knows Mr. xxxxxxx's parents and sister. Mr. xxxx is a United States citizen. He has lived in the Atlanta area since 1984. For the last eight years Mr. xxxxx has worked for the xxxx Marketing Company, where he is an Assistant Manager. Mr. xxxxx is married and has two children.
Despite this new evidence, the Magistrate Judge denied Mr. xxxxxxx's Motion. A copy of the Judge's Order is attached as Exhibit "B."
Mr. xxxxxxx had lived in the United States prior to his entry in February of 1995. While living in the United States, Mr. xxxxxxx was romantically involved with Adrienne Kearney. Ms. Kearney is a United States citizen and works for Allstate Financial Mortgage Company. Ms. Kearney has a two-year old daughter. Mr. xxxxxxx believes that he is the biological father of the child.
ARGUMENT AND AUTHORITY
A Court may only detain a criminal defendant pending trial upon a determination that "no condition or combination of conditions will reasonably assure the appearance as required and the safety of any other person and the community...." 18 U.S.C. 3142(e). This determination is predicated upon "the government's showing of dangerousness or risk of flight." United States v. Montalvo-Murillo, 495 U.S. 711 (1990).
Pursuant to 18 U.S.C. (3145b), a person ordered detained by a Magistrate Judge may seek review by the court having original jurisdiction over the offense. The court of original jurisdiction may revoke or amend the Order. The review by the District Court is de novo. United States v. Hurtado, 779 F.2d 1467, 1480-81 (11th Cir. 1985).
In engaging in the de novo review, the district court must provide its own findings of fact and statement of reasons for its decision. Id. at 1480.
Title 18 U.S.C. 3142(g) provides that the judicial officer "shall" consider the following four factors in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person in the community:
1. the nature and circumstances of the
offense charged, including whether the offense is a crime of violence or involves a
narcotic drug;
2. the weight of the evidence against the
person;
3. the history and characteristics of the
person; and
4. the nature and seriousness of the danger
to any person or the community that would be posed by the person's release.
Undersigned counsel submits that in view of all four factors that following a hearing and de novo review this Court will find that there are indeed conditions of release that will reasonably assure the appearance of Mr. xxxxxxx as required.
Specifically, Mr. xxxxxxx is not charged with a crime of violence. The government did not present any evidence that Mr. xxxxxxx is a danger to the community. Additionally, Mr. xxxxxxx has lived in Georgia for over a year. He was romantically involved with Adrienne Kearney, a United States citizen, and may be the father of Ms. Kearney's daughter.
Prior to his incarceration Mr. xxxxxxx submitted a saliva sample to be tested to determine if he is the biological father of Ms. Kearney's daughter. The samples are being held by Identigene, a company based in Houston, Texas. Identigene will not complete the paternity test until the balance of $450 is paid. Mr. xxxxxxx wishes to be released from jail so that he can, among other things, pay the balance due to Identigene and determine if he is indeed the father of the child.
Moreover, Mr. xxxxxxx has close friendships
with long-time Atlanta residents. One of his friends, Mr. xxxx, is w]' $7Q̙E
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