Archive | bail

Tuesday, November 14th, 2017

EDNY Holds That ICE Can’t Detain a Defendant for Criminal Prosecution

Chief Judge Irizarry recently issued the first EDNY decision holding that once a defendant has been granted pretrial release under the Bail Reform Act, the defendant may not be detained by ICE while his prosecution is pending. In United States v. Rosario Ventura, 17-cr-418, Judge Irizarry held that “the Government must either release Defendant under the bond conditions set in this case and continue the instant prosecution, or dismiss the indictment without prejudice, forego its illegal reentry prosecution, and proceed with Defendant’s removal.” The decision is available here. (As we’ve reported, Southern District Judge Caproni recently issued a similar decision.)

Mr. Rosario Ventura met the bail conditions set by a magistrate judge pursuant to the Bail Reform Act. Immediately after his release from criminal custody, however, ICE detained Mr. Rosario Ventura and held him in immigration custody. He then filed a motion to compel ICE to release …

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Monday, July 31st, 2017

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain A Defendant Held For Prosecution

In the first decision of its kind within the Second Circuit, Judge Caproni in the SDNY held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him.  You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.

Mr. Galitsa met the bail conditions set by Magistrate Judge Fox at presentment.  Because ICE had filed a detainer, he was transferred to ICE custody rather than released after meeting his bail conditions.  Six days later, the government had Mr. Galitsa transferred back to the MDC Brooklyn pursuant to a writ of habeas corpus ad prosequendum.  He moved to dismiss the indictment or, in the alternative, to compel his release from custody.  The government conceded that, since detaining Mr. Galitsa, ICE had taken no steps to …


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Wednesday, July 20th, 2016

Second Circuit Updates – July 20, 2016

There were three summary orders from the circuit today.

Remanded again: In United States v. White, the circuit reaffirmed that the district court must consider material post-sentencing conduct when resentencing a defendant. Ms. White’s case had already been remanded by the circuit once before because the district judge did not make factual findings to support a sentence enhancement. At the resentencing, the district court made ambiguous comments suggesting that it was ignoring her post-sentencing rehabilitation. The circuit, therefore, sent Ms. White’s case back to the district judge again. This time, the judge must consider whether the evidence of Ms. White’s rehabilitation merited a reduced term of supervised release.

Two affirmances: In United States v. Galanis, the circuit upheld the district court’s revocation of bail pending trial because there was probable cause that the defendant had continued his criminal activity; and, in United States v. Sturgis, the circuit …


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Friday, July 1st, 2016

Circuit Clarifies that Government Retains the Ultimate Burden When Seeking Detention in “Presumption” Cases

Late last week, the Second Circuit issued a short summary order in United States v. Horton, No. 16-1574, ordering that the District Court vacate its order of detention and remanding for further proceedings. Although it issued just a short summary order, the Circuit clarified that even in “presumption” cases, the government retains the ultimate burden of persuasion on the issue of remand based on a defendant’s dangerousness.

In certain types of cases, Title 18 U.S.C. 3142(e) creates a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the safety of the community.  The defendant bears the burden of producing evidence to rebut this presumption.  If the defendant does so, the presumption is not eliminated, but it remains a “factor” just like any other factor the district court has to consider and weigh.  “At all times,” though, “the government retains the ultimate burden of persuasion by …

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Wednesday, April 13th, 2016

EDNY Update: Judge Pohorelsky Finds Adam Walsh Act Mandatory Bail Provision Unconstitutional, Judge DeArcy Hall Reverses Bail Determination

On Friday, in the EDNY, Magistrate Judge Viktor V. Pohorelsky found that the Adam Walsh Amendments to the Bail Reform Act violate the Due Process Clause of the Fifth Amendment and the Excessive Bail Clause of the Eighth Amendment.  The case was United States v. Kim, 16-mj-280 (VVP), and the transcript is available here: Kim_16MJ280_Transcript 4.8.16.

For those charged with crimes involving a minor, Adam Walsh requires the nondiscretionary imposition of specific pretrial release conditions, including electronic monitoring and a curfew, depriving defendants of any opportunity to contest whether such conditions are necessary, and denying judges the ability to make individualized determinations as to the least restrictive bail conditions.  In this case, where the defendant is charged with receipt and possession of child pornography, the court found that electronic monitoring was not necessary to assure his appearance or the safety of the community.  Judge Pohorelsky ordered that the …


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Sunday, June 10th, 2012

PC World

United States v. Gowing and Scheringer, Nos. 10-4037-cr, 11-683-cr (2d Cir. June 6, 2012) (Winter, Straub, Lynch, CJJ) (per curiam)

The court’s latest per curiam looks at 18 U.S.C. § 3147, which enhances the sentence of a person “convicted of an offense committed while on release.”

The underlying case involved a massive oil contract fraud orchestrated by Scheringer. Gowing was an attorney who represented Scheringer in a civil fraud suit, who eventually joined the fraud. Although he initially refused to invest or refer others to the scheme, he eventually helped solicit funds from victims. Both defendants had been released on bail by 2006, but continued to engage in the scheme. Calls recorded by the government in 2008 captured them speaking about obtaining more money from victims. Even after Scheringer was remanded in 2009, his prison calls reflected Gowing’s efforts to continue raising money from victims.

On appeal, Gowing challenged the …

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Saturday, January 29th, 2011

You Can’t Go Home … Again

United States v. English, No. 10-3258-cr (2d Cir. January 18, 2011) (Kearse, Winter, Hall, CJJ).

The defendants in this case, charged with narcotics and firearms offenses, sought bail from a magistrate and two district judges. Each time they were ordered detained. This opinion is the result of their effort to get the circuit to release them. The circuit affirmed.

The defendants were arrested in April of 2010. They faced a twenty-plus kilogram cocaine conspiracy charge and two firearms offenses. They first sought bail from a magistrate judge. At the hearing, the AUSA cited several factors indicating that the defendants were a danger, including characterizing a gun recovered from the defendants’ stash house as appearing to be a machine gun. The magistrate ordered the defendants detained finding that they had not overcome the presumption that they posed a danger to the community.

The defendants then appealed to the Part I judge, …

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