United States District Court, D. Massachusetts
MEMORANDUM AND DECISION ON UNITED STATES' MOTION TO REOPEN DETENTION HEARING
DAVID H. HENNESSY, Magistrate Judge.
The United States moves (Doc. 24) to reopen the detention hearing in the above-captioned case. Defendant, Gary S. Spring ("Spring") has filed an opposition (Doc. 25). This matter is ripe for decision. For the reasons stated below, the motion to reopen the detention hearing is denied.
On September 19, 2014, Spring was arrested and made an initial appearance on a criminal complaint charging him with Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252A(a)(5). (Doc. 3). The United States moved for detention. Id. At the conclusion of a detention hearing on September 22, 2014, this court entered an order releasing Spring on a secured bond and other conditions. (Doc. 5 and 7). On October 27, 2014, Spring appeared before the court again for an arraignment on an indictment charging him with Possession of Child Pornography, in violation of 18 U.S.C. §2252A(a)(5)(B). (Doc. 14, 20). At the arraignment, the United States moved orally for reconsideration of Spring's release on conditions and, at the court's direction, filed the written motion now under consideration. (Doc. 20).
The United States moves pursuant to 18 U.S.C. § 3142(f). In relevant part, it provides:
The [bail] hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of hearing and that has a material bearing on [release or detention].
In support of its motion to reopen, the United States cites the following information which it asserts it learned after the detention hearing and Spring's release:
1. That two children lived with their mother in one of the condominium units that comprise the Victorian-style home in which Spring's unit is located. The children routinely pass by the door to Spring's condominium unit.
2. That the neighborhood in which Spring resides is populated with children who walk past Spring's residence.
3. That Spring resides within three blocks of a school and park.
(Doc. 24 at pp. 2-3).
Spring opposes the motion of the United States. He notes that the investigation that led to his arrest and the execution of a search warrant of his condominium unit has been ongoing since June 30, 2014 - some 85 days before the detention hearing - and that the United States had ample time during the investigation to discover the information cited above. Similarly, he notes that agents had followed Spring from his residence to a nearby business on the morning of Spring's arrest and thus were familiar with his neighborhood, the nature of foot traffic in the neighborhood, and its proximity to a school and park. Finally, Spring contends that, during the execution of a search warrant at Spring's residence on the morning of Spring's arrest, law enforcement officers interacted with the mother of the children the United States claims it did not know about before the original detention hearing. Spring separately argues that even if the information cited by the United States were found to be new, it is not material because the children have been removed from the house in which the condominiums are located, and because Spring is in the process of selling his unit and moving. (Doc. 25 at pp. 2-3).
In applying Section 3142(f) of the Bail Reform Act, courts have interpreted the language "not known to the movant at the time of the hearing" to include information about which the litigant should have known and presented at the original detention hearing. For example, in United States v. Dillon 938 F.2d 1412 (1st Cir. 1991), the Court of Appeals affirmed an order denying Dillon's motion to reopen a detention hearing where the alleged new information comprised affidavits and letters attesting to Dillon's good character from relatives and associates who attended the original detention hearing. Id. at 1415. It did not matter that the affidavits and letters themselves had not been written; the relatives and associates had been available at the original bail hearing to provide the information, and Dillon simply did not present it. Id. Similarly, in United States v. Cartagena-Mederos, 888 F.Supp.2d 211 (D.P.R. 2012) (Besosa, J), cited by Spring, the district court upheld a magistrate judge's denial of a motion to reopen where Cartagena had "had sufficient time to prepare for witness questioning and [had] failed to ask questions of the witnesses... that should have been raised during the initial hearing." Id. at 213. By contrast, in United States v. Peralta, ...