United States v. Calabrese

911 F. Supp. 287, 1995 U.S. Dist. LEXIS 20390, 1995 WL 762147
CourtDistrict Court, N.D. Ohio
DecidedSeptember 6, 1995
DocketNo. 1:95 CR 281
StatusPublished

This text of 911 F. Supp. 287 (United States v. Calabrese) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Calabrese, 911 F. Supp. 287, 1995 U.S. Dist. LEXIS 20390, 1995 WL 762147 (N.D. Ohio 1995).

Opinion

ORDER

DOWD, District Judge.

The defendant was indicted on July 28, 1995 along with three other defendants for conspiracy to commit offenses against the United States in violation of 18 U.S.C. § 371. The defendant was arrested and arraigned. The government has moved for an order of detention of the defendant. The court conducted a hearing on August 24, 1995 in response to the government’s motion. The government presented the testimony of FBI special agent David Drab who offered testimony in support of the government’s position that the defendant was a danger to the community. The parties have submitted post-hearing briefs. (See Dockets 23 & 24).

Pretrial detention under the provisions of 18 U.S.C. Section 3142 is available on alternative grounds. The first is that no condition or combination of conditions will reasonably assure the appearance of the de[288]*288fendant, and the second ground is that no condition or combination of conditions will reasonably assure the safety of any other person and the community. In this case, the defendant is on federal parole and subject to a warrant issued by the Parole Commission for parole violations. Consequently, the government’s motion for detention is limited to the second ground. Its case for detention rests on the proposition that the defendant is a LCN (La Costra Nosta) associate; that he is a violent man committed to the restoration of the LCN as a power in the Cleveland area by violent means if appropriate (see FBI Agent Drab’s testimony — Docket 26), and the provisions of 18 U.S.C. § 3142(f) which provide in part as follows:

(f) Detention hearing. The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the person as required and the safety of any other person and the community—
(1) upon motion of the attorney for the government in the case that involves— (D) any felony if the person has been convicted of- two or more offenses described in subparagraphs (A) through (C) of this paragraph ...

In sum, 18 U.S.C. § 3142(f)(1)(D) and the defendant’s criminal history are advanced as the predicate for the government’s motion for an order of detention. 18 U.S.C. § 3142(g) sets forth the factors to be considered by the judicial officer in determining whether there are conditions of release that will reasonably assure the safety of any other person in the community. Specifically, in this case, the provisions of 18 U.S.C. §§ 3142(g)(3)(A) and (B) and (4) apply.

The defendant’s criminal record is extensive.1 It includes convictions for armed bank robbery, which is a crime of violence, and a conviction for conspiracy and distribution of cocaine, which is a controlled substance violation with a maximum term of imprisonment of 10 years or more. Consequently, the defendant is subject to an order of detention pursuant to 18 U.S.C. § 3142(f)(1)(D).

On the issue of whether the defendant is a danger to the safety of any other person and the community, the testimony of FBI agent Drab is compelling.2 Moreover, the defendant is presently on federal parole. On the other hand, consistent with the issue of defendant’s family ties, length of residence in the community and community ties, all factors to be considered, it is apparent that the defendant, while not incarcerated, has been a life-long resident in the Cleveland area. He is presently married to his second wife and maintains contact with his three children from his first marriage and had been regularly employed for the two years preceding his arrest on the indictment in this ease.

United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) teaches that pretrial detention on the basis of “future dangerousness” does not violate the constitution.

In this case, the lengthy criminal record of the defendant, combined with the unrebutted [289]*289testimony of Agent Drab, leads the Court to find that the defendant represents a threat to the safety of the community.

However, the Court has the obligation to consider whether any conditions or combination of conditions will reasonably assure the safety of any other person and the community even where the court finds that the defendant poses a threat to the safety of the community. United States v. Dominguez, 783 F.2d 702, 706-707 (7th Cir.1986).

18 U.S.C. § 3142(f) directs that “the facts the judicial officer uses to support a finding pursuant to subsection (e) that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.” (emphasis added)

The government cites United States v. Tortora, 922 F.2d 880 (1st Cir.1990) for the proposition that a defendant, while on parole and connected to the LCN, “is precisely the type of defendant Congress had in mind when it wrote of the ‘small but identifiable group of particularly dangerous defendants 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.’ ” 922 F.2d at 886.

The defendant has proposed a set of restrictions which include house arrest complete with electronic monitoring, no visitation rights except for immediate family and his lawyer. Additionally, the defendant is agreeable to electronic surveillance of all telephone communications except with his lawyer. The government opposes such a set of restrictions arguing that they are not sufficient to protect the community.

In Tortora, the district court imposed a series of restrictions in lieu of an order of detention that the government successfully challenged on appeal. The restrictions included:

(1) remain at home twenty-four hours a day, except for a reasonable number of visits to doctors and lawyers, wearing an electronic bracelet; (2) refrain from communicating with any person not approved by the prosecutor and defense counsel; (3) meet with codefendants only in the presence of counsel for the purpose of preparing a defense; (4) allow only one telephone line into his residence, hooking it up to a pen register; and (5) post the residence — a house owned by his brother (who, apparently, agreed to execute the necessary documents) — as security.

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Related

United States v. Salerno
481 U.S. 739 (Supreme Court, 1987)
United States v. Carmen A. Tortora
922 F.2d 880 (First Circuit, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
911 F. Supp. 287, 1995 U.S. Dist. LEXIS 20390, 1995 WL 762147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-calabrese-ohnd-1995.