Opinion
04-CR-316S.
February 21, 2005
DECISION AND ORDER
I. INTRODUCTION
Defendant Harpal Singh Sidhu is presently detained pending trial pursuant to an order issued by United States Magistrate Judge Leslie G. Foschio on December 1, 2004. Presently before this Court is Defendant Sidhu's Motion for Revocation or Amendment of Judge Foschio's Detention Order pursuant to 18 U.S.C. § 3145(b).
In support of his motion, Defendant Sidhu filed his motion with attached exhibits, including a memorandum of law, the Affirmation of Steven M. Cohen, Esq., and a transcript of the detention hearing. In opposition to the motion, the Government filed the Affidavit of Thomas S. Duszkiewicz, Esq.
II. BACKGROUND
On December 1, 2004, a federal Grand Jury in the Western District of New York indicted each of the above-named defendants on two counts. The defendants are charged in Count 1 with knowingly, willfully and unlawfully conspiring to import from Canada to the United States 100 kilograms or more of a mixture or substance containing marijuana, a Schedule I controlled substance in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(2)(G), all in violation of 21 U.S.C. § 963.In Count 2 of the Indictment, the defendants are charged with knowingly, willfully and unlawfully conspiring to possess with intent to distribute and attempt to possess with intent to distribute 100 kilograms or more of a mixture or substance containing marijuana, a Schedule I controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), all in violation of 21 U.S.C. § 963. The defendants face a mandatory minimum of five years and a maximum of forty years of incarceration if convicted.
Briefly, the Government alleges that the defendants conspired together to import more than $1 million worth of marijuana into the United States for further distribution. Defendant Pryce drove a tractor-trailer over the border and was discovered transporting the marijuana. He cooperated with law enforcement agents and led them to the rendevous point in Pennsylvania, where Defendants Gill and Sidhu were arrested while attempting to unload the boxes of marijuana from Defendant Pryce's trailer.
During Defendant Sidhu's arraignment, the Government moved for his pretrial detention. Defendant Sidhu opposed the Government's motion. Judge Foschio held a detention hearing at that time and ordered Defendant Sidhu detained. Defendant Sidhu was present and represented by counsel during the hearing.
On December 16, 2004, Judge Foschio filed a written order setting forth the factual findings and conclusions of law supporting his detention order. With the exception of updated information regarding the United States' extradition treaty with India, neither the Government nor Defendant Sidhu has submitted any new information or evidence to supplement that which was presented during the detention hearing. Thus, the record developed before Judge Foschio constitutes the complete record of Defendant Sidhu's detention proceedings. See United States v. Davidson, No. 92-CR-35, 1992 WL 144641, at *2 (N.D.N.Y. June 18, 1992) (finding that district court may rely on the record before the magistrate judge). Familiarity with the proceedings before Judge Foschio is presumed.
III. DISCUSSION and ANALYSIS
A. Standard of Review
Eighteen U.S.C. § 3145(b) provides the mechanism by which a defendant may seek review of a magistrate judge's pretrial detention order by a district judge. See United States v. Harrison, No. 04-4725, 2005 WL 246538, at *1 (2d Cir. Feb. 3, 2005) (per curiam). Review of the magistrate judge's order is de novo. See United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985); United States v. Goba, 240 F.Supp.2d 242, 245 (W.D.N.Y. 2003). As such, this Court will judge the issues anew, but in doing so, use the factual and evidentiary record developed before Judge Foschio. Given the de novo standard, it is unnecessary for this Court to determine whether Judge Foschio committed any of the errors Defendant Sidhu ascribes to him. Rather, this Court will reach its own independent findings of fact and conclusions of law. See Leon, 766 F.2d at 80 (finding that on de novo review, a district court "should not simply defer to the judgment of the magistrate, but reach its own independent conclusion").
B. Bail Reform Act
Under the Bail Reform Act, 18 U.S.C. §§ 3141, et seq., pretrial detention is available only pursuant to § 3142(e). See 18 U.S.C. § 3142(a)(4); United States v. Dillard, 214 F.3d 88, 90-91 (2d Cir. 2000). That subsection expressly authorizes the pretrial detention of a defendant upon a judicial finding 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." 18 U.S.C. § 3142(e).
Pretrial detention under § 3142(e), however, must be predicated on at least one of the six categories or entry points enumerated in § 3142(f). The Government bears the burden of proving by a preponderance of evidence that the defendant falls into one or more of the six categories. See United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (per curiam). Satisfaction of any category triggers a mandatory detention hearing before a judicial officer. See 18 U.S.C. § 3142(f).
Assuming satisfaction of one of the six entry points, the court must then examine the factors set forth in § 3142(g) to determine whether any condition or combination of conditions set forth in § 3142(c) will reasonably assure the defendant's appearance and the safety of other persons and the community. See 18 U.S.C. §§ 3142(c) and (g); see also Friedman, 837 F.2d at 49.
Under certain circumstances, there is a statutory rebuttable presumption that no 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. See 18 U.S.C. § 3142(e). For example, the rebuttable presumption attaches if the judicial officer finds that there is probable cause to believe that the defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. § 801, et seq.), the Controlled Substances Import and Export Act ( 21 U.S.C. § 951,et seq.), or various other specified provisions of federal law. See id. "When the presumption is triggered, a strong probability arises that no form of conditional release will be adequate." United States v. Coleman, No. 5: 01-CR-77, 2001 WL 1249682, at *4 (N.D.N.Y. July 24, 2001) (internal quotation and citation omitted).
C. Defendant Sidhu's Motion to Vacate/Amend Judge Foschio's Detention Order
Defendant Sidhu is charged with offenses under the Controlled Substances Act and Controlled Substances Import and Export Act for which a maximum term of imprisonment of ten years or more is prescribed. He is therefore subject to pretrial detention under § 3142(e). See 18 U.S.C. § 3142(f)(1)(C). Moreover, Defendant Sidhu does not challenge Judge Foschio's finding that there is probable cause to believe that he committed these offenses. Indeed, the Grand Jury has returned an indictment against him.See United States v. Barnett, No. 5:03-CR-243, 2003 WL 22143710, at *10 (N.D.N.Y. Sept. 17, 2003) ("When a defendant has been indicted for such an offense, a grand jury has already found probable cause sufficient to trigger the presumption.") As such, the statutory presumption applies in this case.
The Government retains the burden of proof and persuasion on the ultimate issue of whether there are release conditions that can reasonably assure the defendant's appearance and protect the community. United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001) (per curiam). To rebut the § 3142(e) presumption, however, the defendant does carry a burden of production: "a defendant must introduce some evidence contrary to the presumed fact in order to rebut the presumption." United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (quoting United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986)); see also Mercedes, 254 F.3d at 436 ("a defendant bears a limited burden of production").
"Once a defendant introduces rebuttal evidence, the presumption, rather than disappearing altogether, continues to be weighed along with other factors to be considered when deciding whether to release a defendant." Rodriguez, 950 F.2d at 88. Generally, the factors include: (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, (3) the defendant's personal circumstances, including family and community ties, criminal history, any indication of drug and alcohol abuse, and whether at the time of the offense or arrest the defendant was on probation, parole, or conditional release, and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. See 18 U.S.C. § 3142 (g); Mercedes, 254 F.3d at 436 (noting that factors in § 3142(g) should be considered by the district court to determine whether statutory presumption is rebutted). In considering these factors in the context of a detention hearing, the court is not bound by the rules of evidence, and may rely on hearsay evidence. United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995); Goba, 240 F.Supp.2d at 247.
This Court has thoroughly reviewed the transcript of the detention hearing before Judge Foschio and has carefully considered the proffers made by both the Government and Defendant Sidhu at that time. In addition, this Court has reviewed and considered the papers filed on the instant motion. The following constitute this Court's findings on the relevant factors.
First, Defendant Sidhu is charged with serious offenses — conspiracy to import and possess 100 kilograms of marijuana with a retail value exceeding $1 million. If convicted, Defendant Sidhu faces a mandatory minimum of five years and a maximum of forty years of incarceration. (Tr. at 6.); cf. Coleman, 2001 WL 1249682, at * 6 (noting that while not determinative, "the severity of the punishment facing the defendant is still a relevant factor that bears upon the risk of flight"). Moreover, the nature of this offense suggests that it involved more than minimal planning. Two tractor-trailers were involved. (Tr. at 17-18.) Defendant Pryce crossed the border with the marijuana at Lewiston, NY, while Defendants Gill and Sidhu entered the United States at the Detroit, MI, border crossing. (Tr. at 16-17.) Two other individuals served as dispatchers who guided the defendants to their meeting point in Pennsylvania. (Tr. at 14, 21, 48.) Thus, this was an organized, pre-planned scheme to import and possess a narcotic drug. This Court finds that this factor weighs heavily against pretrial release.
Referring to the transcript of the December 1, 2004 detention hearing.
Second, the Government's proffer suggests that there is considerable evidence against Defendant Sidhu. Defendant Sidhu owned the truck that he and Defendant Gill were driving. (Tr. at 48.) They crossed from Canada into the United States at Detroit and proceeded to a Sam's Club parking lot in Erie, PA, where they met Defendant Pryce. (Tr. at 16, 48, 50.) When Defendant Pryce arrived at the parking lot, either Defendant Gill or Defendant Sidhu directed him to pull to the back of the Sam's Club building. (Tr. at 55-60.) Defendant Sidhu then entered the trailer of Defendant Pryce's truck and proceeded to the precise spot where the boxes of marijuana had been. (Tr. at 56.) Most significantly, Defendant Pryce cooperated with agents after he was discovered crossing the border with the boxes of marijuana and it appears that he continues to cooperate with the government.
Further, Defendant Sidhu's contention that he thought he was supposed to be picking up auto parts in Erie is unbelievable in light of the fact that Defendant Pryce's manifest did not list auto parts as cargo and Defendant Pryce admitted to agents that he knew the boxes he was carrying to Erie contained marijuana. (Tr. at 51, 55, 61; Order of Detention Pending Trial, at 2.) In addition, when asked what he was doing in Defendant Pryce's truck, Defendant Sidhu informed agents that he was going to offload mattresses and boxes. (Tr. at 56.) There is no mention of Defendant Sidhu looking for auto parts. Finally, although Defendant Gill did not admit to knowing that the boxes contained marijuana, he admitted to agents that he knew what he was supposed to transport was illegal. (Tr. at 20.)
This Court finds that the weight of the evidence is against Defendant Sidhu. Cf. Davidson, 1992 WL 144641, at *4 ("a government proffer need not always spell out in precise detail how the government will prove its case at trial, nor specify exactly what sources it will use"). Accordingly, this factor weighs in favor of detention.
Third, this Court finds that Defendant Sidhu's personal characteristics and history do not warrant pretrial release. Specifically, this Court finds that Defendant Sidhu is a risk of flight. It appears that Defendant Sidhu has no ties whatsoever to the Western District of New York or to the United States. (Tr. at 12.) He and his wife live in Brampton, Ontario, Canada. (Tr. at 36.) While Defendant Sidhu owns a home in Brampton, he has only lived in that area for five months, and has only lived in Canada since 1998. (Tr. 39, 40.)
Defendant Sidhu is a landed immigrant in Canada; he is not a Canadian citizen. (Tr. at 8.) He is a citizen of India, and has extensive familial ties to that country. (Tr. at 8, 12.) Most significantly, Defendant Sidhu's three-year-old son lives in India with relatives. (Tr. at 40.) Defendant Sidhu and his wife have traveled back to India to see their son four times since 2001. (Tr. at 43.) Defendant Sidhu's lawyer explained that Defendant Sidhu's son is living in India with relatives until Defendant Sidhu and his wife can find appropriate child care for him in Canada. (Tr. at 41-42.) Notably, however, Defendant Sidhu represented to pretrial services that his son resided with him and his wife in Canada, a false representation that his attorney was unable to explain. (Tr. at 43.)
This Court notes that there was much discussion before Judge Foschio about whether the United States has an extradition treaty with India and whether Defendant Sidhu would be able to legally travel from Canada to India if he surrendered his passport to this Court. (Tr. at 9, 44-47, 56-58.) The Government now concedes that it has an extradition treaty with India, but notes that it would be a long and difficult process to extradite Defendant Sidhu if he were to flee to India. (Duszkiewicz Aff., ¶ 6.) No definitive answer has been reached regarding whether Defendant Sidhu could legally enter India without his passport. Of course, whether Defendant Sidhu has a passport or not, the possibility always remains that he could return to India surreptitiously without a passport. In any event, this is not a definitive issue.
Balanced against Defendant Sidhu's lack of ties to this district and relatively weak ties to Canada, is the nature of Defendant Sidhu's offenses (conspiring to import and possess more than $1 million worth of marijuana). The nature of these offenses makes him an inherent flight risk. See Martir, 782 F.2d at 1146 (noting that Congress has found that serious drug offenders pose unusual risks of flight). Congress imposed the presumptions in § 3142(e) based on its findings that the risk of flight to avoid prosecution is "particularly high among those charged with major drug offenses" and therefore, "a strong probability arises" that no conditions will adequately secure future appearances.Martir, 782 F.2d at 1144 (quoting Senate Report at 20, reprinted at 1984 U.S. Code Cong. Ad. News 3202). The Second Circuit has expressly instructed courts to "consider those legislative findings among other factors to be weighed in deciding whether a defendant should be detained." Id. Accordingly, this Court finds that the third factor weighs in favor of detention.
Fourth, this Court must consider the nature and seriousness of the danger to any person or the community that would be posed by Mr. Sidhu's release. In this regard, the Government argues that the sheer magnitude of the shipment of marijuana and the fact that this conspiracy may extend beyond Mr. Sidhu suggests that there would be a danger to the community if Defendant Sidhu is released and given the opportunity to recidivate. (Tr. at 13-16.) Indeed, a breadth of authority supports the proposition that individuals who commit drug crimes present a danger to the community if released. See Davidson, 1992 WL 144641, at *5 (noting that dealing in drugs presents a danger); see also United States v. Hare, 873 F.3d 796, 798 (5th Cir. 1989) (risk of continued narcotics trafficking after release constitutes risk to community); United States v. Hawkins, 617 F.2d 59, 61 (5th Cir. 1980) (risk of continued illegal drug activities presents danger to community); United States v. Edwards, 685 F.Supp. 687, 688 (N.D.Ill. 1988) (risk of continuing to traffic narcotics endangers safety of community); United States v. Jeffries, 679 F.Supp. 1114, 1118 (M.D.Ga. 1988) (threat that defendant would continue to traffic in drugs presented danger to community).
In response to the Government's argument, Defendant Sidhu relies on his personal characteristics and points out that he has no criminal record. (Tr. at 58.) As discussed above however, this Court does not find Defendant Sidhu's personal characteristics compelling, and it is not necessary for the Government to show prior criminal conduct to carry its burden on dangerousness.See Rodriguez, 950 F.2d at 89 (noting that while a prior record of violence eases the Government's burden of showing dangerousness, it is not essential). Accordingly, this final factor also weighs in favor of detention.
In conclusion, while this Court finds that Defendant Sidhu put forth sufficient evidence to rebut the statutory presumption, this Court nonetheless finds that the Government has met its burden of proving (by a preponderance of the evidence) that Defendant Sidhu is a risk of flight, see United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987), and its burden of proving (by clear and convincing evidence) that he is a danger to others and the community, see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). Accordingly, this Court finds that no condition or combination of conditions will reasonably assure Defendant Sidhu's appearance as required and the safety of any other person and the community. See 18 U.S.C. § 3142(e).
IV. CONCLUSION
Accordingly, for the reasons stated above, Defendant Sidhu's Motion for Revocation of Judge Foschio's Detention Order is denied.
V. ORDERS
IT HEREBY IS ORDERED, that Defendant Sidhu's Motion for Revocation of Judge Foschio's Detention Order (Docket No. 12) is DENIED.
FURTHER, that Defendant Sidhu's pretrial detention shall be maintained pursuant to 18 U.S.C. § 3142(e).
SO ORDERED.