UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal No. xx-0467(JGP)
:
xxxxxxxxxxxxxxxxxxx, :
:
Defendant. :
:
MOTION FOR MODIFICATION OF PRETRIAL DETENTION ORDER
AND INCORPORATED MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT THEREOF
xxxxxxxxx, through undersigned counsel, respectfully moves this Honorable Court for a modification of the Court's pretrial detention order, and requests that he be released into the Intensive Supervision Program of the Pretrial Services. Alternatively, he requests that he be placed in a halfway house.
As grounds for this motion, Mr. xxxxxx, through counsel, states:
1. Mr. xxxxxx was seized and arrested without a warrant on October 28, 1997, at August 21, 1997 at approximately 11:20 p.m.
2. Mr. xxxxxx's arrest took place after police officers responded to a complaint allegedly related to Mr. xxxxxx's dogs. 3. Police officers approached Mr. xxxxxx and questioned him concerning the complaint. They allege that Mr. xxxxxx became "nervous and refused to obey our instructions," and on that basis one police officer attempted to perform a patdown upon Mr. xxxxxx.
4. When Mr. xxxxxx allegedly became unxxxxxxative, a struggle ensued and Mr. xxxxxx was held and searched, at which time police officers discovered a gun in Mr. xxxxxx's pocket. Mr. xxxxxx was then arrested.
6. Mr. xxxxxx stands indicted on two charges of violating 18 U.S.C. Sec. 922(g), possession of a firearm by a convicted felon, and possession of ammunition by a convicted felon, respectively. 7. On November 10, 1997, Magistrate Judge Alan Kay concluded that Mr. xxxxxx presented a danger to the community, and his release would pose a danger of flight. Mr. xxxxxx was ordered held without bond.
8. At Mr. xxxxxx's arraignment, the Court denied his request for modification of the detention order.
9. Mr. xxxxxx is married, and his common law spouse has given birth to his 2-week old son. He is employed by Woodward Condominiums, and is the sole support of his wife and child. There is no likelihood that Mr. xxxxxx poses any risk of flight under these circumstances.
10. Although Mr. xxxxxx has a criminal history, his last violation dates over a year ago, for which he is serving probation. His probation officer has indicated that Mr. xxxxxx's adjustment has been satisfactory, and that he reports as required.
11. Mr. xxxxxx has been evaluated by a representative of the Intensive Supervision Program, through the Pretrial Services Agency. The Agency has informed undersigned counsel that Mr. xxxxxx qualifies for the program. A representative of the Agency will attend a bond review hearing if requested, and explain the program to the court. Considering the gravity of the charges he faces, Mr. xxxxxx has every reason to comply with any restrictions this Court places on his liberty, including placement in the Intensive Supervision Program of the Pre-Trial Services Agency), or in the third-party custody of the Department of Corrections for halfway house placement.
AUTHORITIES
Congress enacted the Bail Reform Act of 1984 to give courts the authority to consider factors such as the likelihood of flight and community safety in making release determinations. In passing the Act, however, Congress did not intend to authorize the wholesale pretrial incarceration of all persons accused of criminal offenses. Indeed, the Act expressly provides that "[n]othing in this section shall be construed as modifying or limiting the presumption of innocence." 18 U.S. Code Section 3142(j). To the contrary, the passage of the pretrial detention provision of the 1984 Act bespeaks a recognition that "there is a small but identifiable group of particularly dangerous [persons] as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons. It is with respect to this limited group ... that the courts must be given the power to deny release pending trial." S. Rep. No. 225, 98th Cong., 1st Sess. 6-7, reprinted in U.S. Code Cong. & Ad. News 3189 (emphasis supplied). Mr. xxxxxx is not within that limited group. It is apparent from the Act's legislative history, as well as the statutorily mandated consideration of the least restrictive alternatives to detention, that Congress contemplated pretrial detention of only a small percentage of the individuals awaiting trial.
The legislative history of the Act also stresses that '[t]he decision to provide for pretrial detention is in no way a derogation of the importance of the [accused's] interest in remaining at liberty prior to trial. It is anticipated that [pretrial release] will continue to be appropriate for the majority of federal defendants." Id. at 7, 12, reprinted in, 1984 U.S. Code Cong. & Ad. News 3189. Mr. xxxxxx is among that majority for whom a combination of conditions short of detention without bond can be fashioned to "reasonably assure" the safety of the community and his appearance for trial. United States v. Orta, 760 F.2d 887 (8th Cir. 1985). See also 18 U.S.C. §3142(c)(1)(B) (judicial officer shall order the pretrial release of an accused "subject to the least restrictive further condition or combination of conditions, that such judicial officer shall determines will reasonably assure the appearance of the person as required and the safety of any other person and the community") (emphasis supplied).
Courts have recognized that, consistent with the intent expressed in the 1984 Act's legislative history, the statutory scheme of Section 3142 continues to favor release over pretrial detention. See United States v. Orta, 760 F.2d 887, 890-892 (8th Cir. 1985); United States v. Miller, 625 F. Supp. 513, 516-17 (D.Kan. 1985). In Mr. xxxxxx's case, his continued detention without bond is not the least restrictive alternative available that will assure the community's safety and his return for future court dates. See U.S. v. Xulam, 84 F.3d 441 (D.C. Cir. 1996).
Title 18 U.S.C. Section 3142(e) provides for pretrial detention if the government is able to show that no condition of release will reasonably assure the accused's appearance as required and the safety of any other person or the community. See United States v. Salerno, 481 U.S. 739, 741 (1987).
WHEREFORE for the foregoing reasons, any which
may appear at a full hearing on this matter, and any others this Court deems just and
proper, xxxxxx, through counsel, respectfully requests that he be released into the
Intensive Supervision Program of the Pretrial Services Agency or, alternatively, released
to the third party custody of the Department of Corrections, for placement in a halfway
house.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
Valencia R. Rainey
Assistant Federal Public Defender
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that this 26th day of January 1998, a copy of
the foregoing Motion for Modification of Pretrial Detention Order and Incorporated
Memorandum of Points and Authorities in Support Thereof was served by first-class postage
prepaid mail upon the Office of the United States Attorney, 555 Fourth Street, N.W.,
Washington, D.C. 20001, for Assistant United States Attorney Sima Sarrafan.
Valencia Rainey
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Criminal No. xx-0467(JGP)
:
xxxxxx, :
:
Defendant. :
:
ORDER
Upon consideration of the Motion for Modification of Pretrial Detention Order and Incorporated Memorandum of Points and Authorities in Support Thereof filed herein on January 15, 1998, it is this ____ day of ________, 1998,
HEREBY ORDERED that this Motion is granted.
______________________________
JOHN GARRETT PENN
UNITED STATES DISTRICT JUDGE
Copies To:
Valencia Rainey, Esq.
Office of the Federal Public Defender
625 Indiana Avenue N.W. Suite 550
Washington, D.C. 20004
Sima Sarrafan, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001