USA v. Carlos Perozzi

2009 DNH 135

• Court: District Court, D. New Hampshire
• Decided: September 9, 2009
• Docket: 09-CR-117-SM
• Status: Published

Opinion

USA v . Carlos Perozzi 09-CR-117-SM 09/09/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 09-cr-117-16-SM Opinion N o . 2009 DNH 135 Carlos Perozzi

O R D E R

Based upon the government’s proffer, the Magistrate Judge

found probable cause to believe that the defendant conspired to

distribute in excess of 1,000 pounds of marijuana, for which

offense a maximum term of imprisonment of ten years or more may

be imposed. Defendant has since been indicted on the same

charge. Accordingly, a rebuttable presumption arises (18 U.S.C.

§ 3142(e)) that “no condition or combination of conditions will

reasonably assure [defendant’s] appearance . . . and the safety

of the community . . . .” See 18 U.S.C. § 3142(e), ( f ) ; 21

U.S.C. § 841(b)(1)(c); United States v . Vargas, 804 F.2d 1 5 7 ,

162-63 (1st Cir. 1986).

To rebut that presumption, defendant must present evidence

demonstrating that “what is true in general is not true in [his]

particular case.” United States v . Jessup, 757 F.2d 3 7 8 , 304

(1st Cir. 1985). The Magistrate Judge found that defendant

failed to rebut the presumption, and determined that the evidence against defendant was of sufficient weight (defendant was in a

house that was searched and in which a substantial amount of

marijuana, said to be at the heart of the distribution

conspiracy, was found, and he was shown to have demonstrable

connections to other alleged co-conspirators) that the risk of

flight to avoid a substantial sentence was greatly enhanced, and

that that risk was further enhanced by the facts that defendant

has few ties to the community and is a citizen or resident of

Canada.

Defendant seeks review of the detention order, but offers

nothing of substance warranting a different outcome.

Particularly, defendant offers nothing that might justify

reopening the detention hearing, i.e. he has presented nothing of

substance to show that “information exists that was not known to

the movant at the time of the hearing and that has a material

bearing on the issue whether there are conditions of release that

will reasonably assure the appearance of such person as required

and the safety of any other person and the community.” 18 U.S.C.

§ 3142(f)(2)(B).

In his motion to revoke the detention order, defendant

merely says that “the hearing on this motion will produce

sufficient evidence . . . mandating a revocation of the detention

2 order issued by the Magistrate Judge,” and, “following a hearing

[Defendant] will proffer to this Court a series of conditions

that will reasonably ensure his appearance at trial [, etc.,]

including, among other conditions, the execution of a waiver of

extradition rights, limitations on his travel including a

surrender of his passport [which probably negates the waiver of

extradition offer], residence and curfew restrictions.” Besides

the facts that the precise nature of the referenced new evidence

is undisclosed, and the proffers regarding suggested conditions

were available at the detention hearing, defendant’s suggestions

do not qualify as “material” information bearing on whether

release pending trial is warranted. Nor does defendant’s

subsequent filing of 16 substantially identical statement forms,

apparently prepared by counsel and completed by various people,

attesting to identical individual conclusions that defendant

poses neither a danger nor a flight risk, qualify as material

information bearing on the issue of pretrial release. New and

material information for Section 3142(f)(2)(B) purposes consists

of “something other than a defendant’s own evaluation of the

strength of the case against him: [i.e.] truly changed

circumstances, something unexpected, or a significant event.”

United States v . Rodriguez-Adorno, 606 F.Supp. 2d 2 3 2 , 239

(D.P.R. 2009) (citations omitted).

3 The court, having reviewed the matter de novo, agrees fully

with the Magistrate Judge’s detailed order of detention and

adopts that order. United States v . King, 849 F.2d 485, 490

(11th Cir. 1988); United States v . Femia, 983 F.2d 1046 (Table),

1993 WL 5893 (1st Cir. 1993). Defendant did not rebut the

presumption in favor of detention, has pointed to nothing new on

that score, and the Magistrate Judge properly weighed the

rebuttable resumption, the very real risk of flight given the

substantial sentence faced by defendant, and probable cause to

believe he committed the changed offense (now supported by

indictment), as well as the absence of community ties, and the

fact that defendant is a citizen or resident of Canada, in

deciding that no condition or combination of conditions would

assure his appearance or the safety of the public. I agree.

Finally, defendant has not met the statutory threshold for

reopening the detention hearing. His motion and representations

are unspecific, vague, and conclusory — nothing offered qualifies

as new information not available at the hearing and material to

the issue of pretrial release.

Conclusion

The motion to revoke the detention order is denied for the

reasons given by the Magistrate Judge and as set out above. The

4 motion to reopen the detention hearing is denied, and the

Magistrate Judge’s detailed order of detention is affirmed.

SO ORDERED.

Steven J./McAuliffe Chief Judge

September 9, 2009

cc: Debra M. Walsh, Esq. Anthony M. Cardinale, Esq. Michael J. Sheehan, Esq. Paul A. Maggiotto, Esq.