USA v. Busch et al

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
United States of America

Hon. Hugh B. Scott

09-CR-331-A
MATTHEW DEYNES Memorandum & Order
Defendant.

The Defendant seeks reconsideration of an order of detention entered by Magistrate Judge
H. Kenneth Schroeder relating to a predecessor indictment wherein he was charged with
conspiracy to distribute 5 kilograms or more of cocaine. In accordance with the Bail Reform
Act, 18 U.S.C. §3142(f), a detention hearing was held , and the defendant was thereupon
detained. The defendant now seeks reconsideration of the defendant’s detention based upon the
fact that Magistrate Judge Schroeder gave weight to the fact that the defendant was charged
before him with weapons possession, and the he had previously been charged with a number of
matters which alleged possession, a violent felony. Mr. Deynes now argues that the criminal
complaint charging weapons possession was dismissed on motion by the Government, and the
superceding indictment 09-CR-331A charges him with a racketeering violation and drug
distribution, not naming Deynes in Counts in the Superceding Indictment that charge violence.

Charges Against Defendant
In summary, the defendant among many others is charged by way of an indictment with
participation in a violent street gang known as the 10" Street Gang, operating since the1980s.
This defendant is accused of participation in the gang and its activities of a RICO conspiracy, and
conspiracy to distribute 5 kilograms or more of cocaine, 50 grams or more of crack and
marijuana from 2004 through 2010. The government is benefitted by a rebuttable presumption of
detention pursuant to 18 United States Code, Section 3142 (e).

Discussion

Pursuant to 18 U.S.C.§3142(g), the factors to be considered in the determination of a
detention motion are:

(1) the nature and circumstances of the offense charged:

(2) the weight of the evidence against the person;

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

(3) the history and characteristics of the person, including—
(A) _ the person's character, physical and mental
condition, family ties, employment, financial resources,
length of residence in the community, community ties, past
conduct, history relating to drug or alcohol abuse, criminal
history, and record concerning appearance at court
proceedings; and
(B) — whether, at the time of the current offense or
defendant, the person was on probation, on parole, or on
other release pending trial, sentencing, appeal, or

completion of sentence for an offense under Federal, State,
or local law; and

(4) the nature and seriousness of the danger to any person or
the community that would be posed by the person's release.
Findings & Conclusions

The court found after the initial detention hearing held in this matter that the government
had met its burden of showing the defendant’s risk of danger by clear and convincing proof, and a
risk if flight, by the preponderance of the proof. This court cannot ignore the defendant’s alleged
ties and his role in the 10'" Street Gang, his overall criminal history, the circumstances of the
offenses charged, and upon the period of incarceration he faces if convicted.

Upon the hearing for reconsideration of detention hearing held before this Court on
December 22, 2010, the arguments and post hearing submittals by the government and the
defense, and after weighing all of the factors set forth in 18 U.S.C.§ 3142(g), the Court finds that
detention is warranted based upon the following findings:

1. The Pretrial Services Report dated February 11, 2010
submitted by Zenaida M. Piottrowicz, Pretrial Services

Officer for the Western District of New York is hereby
incorporated into the record.

2. The defendant has strong ties to the 10" Street Gang.

3. The strength of the Government’s case and the alleged role
this defendant played in drug trafficking and as a
participant in the alleged RICO conspiracy.

4. The defendant has a substance abuse history.

5. The defendant has had multiple arrests while on probation
supervision, revocation of supervision. .

6. The nature of the offenses charged

The court has completely taken account the defense
proffer which certainly puts the defendant’s best case for release
before this court. Even as weapons charges are disregarded, the
court cannot find the government’s presumption of detention
rebutted.

Therefore, the court finds by clear and convincing evidence
that no condition or combination of conditions will reasonably
assure against the risk of danger.

The motion for reconsideration is denied.

For the reasons stated above, it is hereby ordered
that the defendant be detained pending trial of the charges against
him.

It is further ordered that pursuant to 18
U.S.C.§ 3142(i): (1) the defendant shall be committed to the
custody of the United States Attorney General, or his designated
representative, for confinement pending trial in a correctional
facility separate, to the extent practicable, from persons awaiting or
serving sentences or being held in custody pending appeal; (2) that
the defendant be afforded reasonable opportunity for private
consultation with counsel; and (3) that, on order of a court of the

United States or on request of an attorney for the Government, the
person in charge of the corrections facility in which the defendant
is confined shall deliver the defendant to a United States Marshall
for the purpose of an appearance in connection with these court
proceedings.

So Ordered. ZL 2 ft — :

HON. HUGH B. SCOTT
UNITED STATES MAGISTRATE JUDGE

Buffalo, New York
February 21, 2011