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United States v. Oliveira

United States District Court, D. Massachusetts

February 21, 2017

UNITED STATES OF AMERICA
v.
CAETANO OLIVEIRA

          MEMORANDUM AND ORDER ON GOVERNMENT'S MOTION FOR DETENTION

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE.

         On or about September 23, 2016, defendant Caetano Oliveira (the "defendant") was arrested pursuant to an Indictment, returned by the Grand Jury sitting in the district of Massachusetts on September 14, 2016, charging that the defendant “having previously been convicted of a crime punishable by a term of imprisonment for a term exceeding one year, did knowingly possess in and affecting commerce a firearm and ammunition, to wit: a Sig Sauer P290 9mm handgun, bearing serial number 25B010535, and eight rounds of 9mm ammunition and a Taurus PT740, .40 caliber pistol, bearing serial number SEM37900, and twelve rounds of .40 caliber ammunition" in violation of Title 18, United States Code, Section 922(g)(1).

         The defendant had his initial appearance before the court on September 23, 2016 before the Honorable Judith G. Dein. The defendant was represented by court appointed counsel. The government moved to detain the defendant pursuant to 18 U.S.C. §§ 3142(f)(1)(A), (f)(1)(D), (f)(1)(E) and (f)(2)(A). A detention hearing before this court was scheduled for September 29, 2016. On that date defense counsel indicated that the defendant would enter into a period of voluntary detention without prejudice.

         On December 1, 2016, at the request of defense counsel, the clerk scheduled a detention hearing for December 13, 2016. On that date this court conducted a detention hearing. The defendant was represented by court appointed counsel. The government called one witness. The defendant did not call any witnesses. After hearing argument, this court made an oral ruling from the bench finding by that the defendant constituted a risk of danger to the community and ordered him detained. This court indicated that if defense counsel wished to appeal the order of detention the court would issue a written decision. On January 18, 2017 defense counsel filed a motion for written findings (Docket Entry # 31). This court allowed the motion on January 19, 2017 and this opinion addresses the request for written findings.

         DISCUSSION

         I. A. Under the provisions of 18 U.S.C. § 3142(c), "[t]he judicial officer may not impose a financial condition that results in the pretrial detention of the person." Thus, a defendant must be released under the provisions of 18 U.S.C. § 3142(b) or (c), or be detained pending trial under the provisions of 18 U.S.C. § 3142(e) and after a hearing pursuant to 18 U.S.C. § 3142(f). See 18 U.S.C. § 3142(a).

         Under 18 U.S.C. § 3142(e), a defendant may be ordered detained pending trial if the judicial officer finds one of the following three conditions to be true that: (1) by clear and convincing evidence, after a detention hearing under the provisions of § 3142(f), ". . . no condition or combination of conditions (set forth under 18 U.S.C. § 3142(b) or (c) will reasonably assure the safety of any other person or the community . . .;" (2) by a preponderance of the evidence, after a detention hearing under the provisions of 18 U.S.C. § 3142(f), ". . . no condition or combination of conditions (set forth under 18 U.S.C. § 3142(b) or (c) will reasonably assure the appearance of the person as required . . .;" or (3) there is a serious risk the defendant will flee.[1] This determination is made by the court at the conclusion of a detention hearing.

         B. The government is entitled to move for detention in a case that:

         (1) involves a crime of violence within the meaning of 18 U.S.C. § 3156(a)(4);[2]

         (2) involves an offense punishable by death or life imprisonment;

         (3) involves an offense prescribed by the Controlled Substances Act or the Controlled Substances Import and Export Act for which the maximum authorized punishment is imprisonment for ten years or more;[3] or

         (4) involves any felony alleged to have been committed after the defendant has been convicted of two or more crimes of violence, or of a crime, the punishment for which is death or life imprisonment, or a ten year [or more] offense under the Controlled Substances Act or the Controlled Substances Import and Export Act.

         Additionally, the government or the court sua sponte may move for, or set, a detention hearing where there is a serious risk of flight, or a serious risk of obstruction of justice or threats to potential witnesses. See 18 U.S.C. § 3142(f).

         C. In determining whether there are conditions of release which will reasonably assure the appearance of the person and the safety of any other person and the community, this court must take into account:

(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 accused;
(3) the history and characteristics of the person, including;
(A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, he was on probation, on parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any other person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g).

         D. The burden of persuasion remains with the government to establish "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." The burden then rests on the defendant to come forward with evidence indicating that these general findings are not applicable to him for whatever reason advanced. The government must satisfy its position with respect to risk of flight by a preponderance of evidence and with respect to dangerousness by clear and convincing evidence. See supra footnote 3. This court must then weigh all relevant factors [set forth under §3142(g)] and determine whether "any condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community." The decision is an individualized one based on all relevant factors. United States v. Patriarca, 948 F.2d 789, 794 (1stCir. 1991); see United States v. Jessup, 757 F.2d 378, 387-88 (1st Cir. 1985).

         Moreover, one may be considered a danger to the community even in the absence of a finding by clear and convincing evidence that the accused will engage in physical violence. Conversely, as noted by the Committee on the Judiciary (Report of the Committee on the Judiciary, United States Senate), on S. 215.98th Congress, Report No. 98-147 (May 25, 1983):

The concept of defendant's dangerousness is described throughout this chapter by the term "safety of any other person or the community." The reference to safety of any other person is intended to cover the situation in which the safety of a particular identifiable individual, perhaps a victim or witness, is of concern, while the language referring to the safety of the community refers to the danger that the defendant might engage in criminal activity to the detriment of the community. The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence.... The Committee also emphasizes that the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the "safety of any other person or the community."

Id. (Emphasis added; footnotes omitted); see United States v. Patriarca, 948 F.2d 789, 792, n.2 (1st Cir. 1991) (danger to community does not refer only to risk of physical violence); seealso United States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990) (stating danger in context of 18 U.S.C. § 3142(g) not meant to refer only to physical violence); United States v. Hawkins, 617 F.2d 59 (5th ...


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