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United States of America v. Regis Possino

April 8, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
REGIS POSSINO, GROVER HENRY COLIN NIX IV, AKA "COLIN NIX," TARUN MENDIRATTA, IVANO ANGELASTRI, MARK HARRIS, EDON MORAL, JOSEPH SCARPELLO, JULIAN SPITARI, PETER DUNN, WILLIAM MACKEY, AND JOSEPH DAVIS, AKA "JOEY DAVIS," DEFENDANTS.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM AND ORDER GRANTING GOVERNMENT'S REQUEST FOR DETENTION OF TARUN MENDIRATTA

Before the Court is the Government's Request for Detention of Tarun Mendiratta pending trial, pursuant to 18 U.S.C. § 3142(e). The Government's Request for Detention first came on for hearing on March 14, 2013, but was continued to March 21, 2013. Testimony from FBI Special Agent Charles Koepke and Mendiratta's mother was received at the hearing, as well as documentary evidence, including wiretap intercepts. Based on all the information presented, the Court concludes that there are no conditions or combination of conditions that will reasonably assure Defendant's appearance or the safety of the community. The Court GRANTS the Government's Request for Detention based on the findings and conclusions set forth below.

BACKGROUND

On March 13, 2013, Defendant Tarun Mendiratta was arrested on a Central District indictment for "a pump and dump" securities fraud scheme, and charged with violations of 18 U.S.C. § 371 (conspiracy to commit securities fraud and wire fraud); 18 U.S.C. § 1348(1) (securities fraud); 15 U.S.C. §§ 78j(b), 78ff, 17 C.F.R. § 240.106-5 (securities fraud); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1350 (willful certification of false financial report); 18 U.S.C. § 1956(h) (money laundering conspiracy); and 18 U.S.C. § 1956(a)(2)(A) (international money laundering). Defendant is charged in 32 of the 37 counts in the indictment. He is also subject to a sentencing enhancement pursuant to U.S.C. § 3147 for committing the alleged offenses while on pretrial release for prior offenses of which he was subsequently convicted. A warrant is pending in Connecticut for a probation violation relating to the new charges.

APPLICABLE LEGAL STANDARDS

Federal law traditionally has provided that a person arrested for a non-capital offense shall be granted bail. United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985). Only in rare circumstances should release be denied. Id. Doubts regarding the propriety of release shall be resolved in favor of the defendant. Id.

The Bail Reform Act of 1984, 18 U.S.C. §§ 3146-3152, provides that a criminal defendant should be released under "the least restrictive condition or combination of conditions" that will reasonably assure his appearance at trial. Id.; 18 U.S.C. § 3142(c)(1)(B). The Act authorizes detention only in those cases in which a judge finds 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). In making his or her finding, the judge "shall" consider available information on four factors:

1. The nature and circumstances of the offense charged;

2. The weight of the evidence against the person;

3. The history and characteristics of the person; and

4. The nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.

18 U.S.C. § 3142(g)(1)-(4).

The Government bears the burden of demonstrating that a defendant poses a flight risk by a preponderance of the evidence, and by clear and convincing evidence that the defendant poses a danger to the community. Motamedi, 767 F.2d at 1406; United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); 18 U.S.C. § 3142(f) (danger to community). There are no formal evidentiary rules; the rules concerning admissibility of evidence in criminal trials are inapplicable. 18 U.S.C. § 3142(f). The Court may proceed based on proffer and hearsay. United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986).

There is a rebuttable presumption in favor of detention for certain crimes involving violence, drugs, minors, or for which the maximum sentence is life imprisonment or death.

18 U.S.C. § 3142(f). The Government concedes that this is not a presumption case.

DISCUSSION

The Government has presented a strong case for detention based on flight risk and danger to the community. Pretrial Services also recommends detention. Some of the defendants less culpable than Defendant have been detained based on probable sentence, weight of the evidence, flight, danger, history of non-compliance with release orders, and lack of candor.

Again, as the Government concedes, Defendant is not charged with offenses involving drugs, guns, violence, or minors that would create a presumption in favor of detention under 18 U.S.C. § 3412(f). Defendant also has offered a bail package of $500,000 in secured property and agreed to intensive supervision, home detention, electronic monitoring and other conditions to mitigate the risks of non-appearance and danger to the community.

Nonetheless, the Court concludes that there are no conditions or combination of conditions so far proposed that would ...


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