UNITED STATES OF AMERICA, ) CR.No. 99CR-0000-NMG
Plaintiff ) MOTION FOR
) PRETRIAL RELEASE
v. ) MEMORANDUM IN
) SUPPORT THEREOF
JANE SMITH )
Defendant.)
_____________________________)
This motion is made on the ground that there exist conditions or combination of conditions that would reasonably assure defendant JANE SMITH's appearance at trial; that she is not a flight risk and that she is not a danger such that she would continue to engage in criminal activity that would be to the detriment of the community.
"Each Defendant is unique and each is entitled to have his case decided with a recognition of that." United States v. Patriarca,776 F. Supp. 593,597(D.C.Mass. 1991) remanded 948 F.2d 789 (1st Cir. 1991). "Detention determinations ...must be based on the evidence which is before the court regarding the particular defendant." United States v. Tortora, 922 F 2d.880, 888 (1st Cir. 1990).
JANE SMITH stands charged with her co-defendants in a multi-count cocaine base conspiracy. According to the Indictment, other than the general conspiracy in count I which alleges total transactions by all co-defendants, in excess of fifty grams, it is alleged that Ms. SMITH participated with others in a transaction on May 28,1999 (Count 2) and another on August 10,1999. Based on the notice of applicability filed it would appear that Count 1 alleges activity greater than 5 grams and Count 11 alleges activity greater than 50 grams. At this time it is completely unknown what role the government is alleging that Ms.SMITH engaged in during the alleged transactions. What is known is that Ms. SMITH is a young mother of a 9 month old child who goes to school and is gainfully employed in a training program. What is also known is that the government has not considered her a danger to the community in that they made no attempts to arrest her for her alleged activity until the early morning hours of December 10, 1999 some five months after the alleged activity.
The United States Court of Appeals for the First Circuit has made clear in United States v. Patriarca, supra at 597. that "Danger ... means more than physical violence. This also refers to the danger Defendant might engage in criminal activity to the detriment of the community." Id. See also United States v. Tortora, supra at 884 wherein the court stated: "Requiring that release conditions guarantee the community's safety would fly in the face of Congress's intent that only a limited number of defendants be subject to pretrial detention...[T]he courts cannot demand more than an objectively reasonable assurance of community safety," citations and internal quotation omitted, emphasis added.
Although the instant case, on the face of the indictment, is
one where there is a rebuttable presumption that no combination of
conditions of release will reasonably assure defendant's appearance
or the safety of the community, cf contra e.g. United States v.
DiGiacomo, 746 F.Supp.1176, 1181 (D.C.Mass. 1990), Ms. JANE SMITH,
per the expected Pre-Trial Services report, and other evidence
expected to be presented at the hearing on this motion, will submit
substantial evidence which demonstrates that at a minimum
conditions of release can be formulated which would assure her
appearance and alleviate any concern for public safety. While
under 18 U.S.C. §§ 3142(e), a district court is to presume that no
condition(s) would reasonably assure defendant's appearance at
trial or the safety of the community absent sufficient rebuttal
evidence, Ms. SMITH has submitted evidence that she has strong ties
to the Fitchburg area and a willingness to submit to various
restrictive conditions of release. Such satisfies her burden of
production, see, e.g., United States v. Jessup, 757 F.2d 378, 384
(1st Cir. 1985)(defendant need only produce "some evidence" to
rebut presumption). The burden of persuasion remains on the
government.. See id.; see also United States v.Perez-Franco, 839
F.2d 867,870(1st Cir. 1988)(per curiam).
As for risk of flight, the government must establish by a
preponderance of the evidence that no set of conditions of release
will reasonably assure the presence of the defendant as required.
See United States v. Patriarca, supra at 793 (preponderance of
evidence standard applies to risk of flight determinations). To
measure whether the government has met this burden, the district
court is required to take into account the relevant factors set
forth in §§ 3142(g): (1) the weight of the evidence as to guilt;
(2) the nature and circumstances of the crime charged; and (3) the
characteristics of the accused, including community and family
ties, past history, financial resources and employment United
States v. Kattar, No. 92-1126 (1st Cir. 04/21/1992).
Under the Bail Reform Act liberty is the norm, release is favored and release is mandated in the least restrictive manner that will adequately assure a defendant's appearance at trial. See generally: United States v. Himler, 797 F.2d 156,159(3rd Cir. 1986); United States Montamedi, 767 F.2d 1403,1405(9th Cir. 1985);18 U.S.C. § 3142(c)(B). Any doubts concerning release should be resolved in favor of the defendant. United States v.Townsend, 897 F.2d 989,994(9th Cir. 1990).
Ms. JANE SMITH is a life long resident of the Central Massachusetts area with numerous ties to the community. She respectfully requests and submits that there are reasonable conditions of release that this Honorable Court could impose that would assure his appearance at trial and the safety of the community.
Date: December 13, 1999 Respectfully submitted,
MICHAEL C. BOURBEAU, BBO # 545908
21 Union Street
Boston, MA 02108
(617) 722-9292
Attorney for Defendant
JANE SMITH
I, MICHAEL C. BOURBEAU, hereby certify that I have caused to be served a copy of the within motion upon all counsel of record, this date by hand, fax, or mailing said motion by first class mail to each said person.
Dated: December 13, 1999 ____________________________
MICHAEL C. BOURBEAU