United States v. Twine , 385 F. App'x 27 ( 2010 )

09-1204-cr
U nited States v. Tw ine
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 14 th day of July, two thousand ten.
PRESENT: REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 09-1204-cr (Lead)
10-0709-cr (Con)
10-2043-cr (Con)
SYLVESTER TWINE, also known as TWAN,
Defendant-Appellant,
TERRANCE REED, also known as SUPREME,
SHAMEEK SUGGS, also known as SHA,
Defendants.*
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SUBMITTING FOR APPELLANT: Michael H. Sporn, New York, New York.
SUBMITTING FOR APPELLEE: Licha M. Nyiendo, Assistant United States
Attorney (David C. James, Stephen J. Meyer,
Assistant United States Attorneys, on the brief),
for Loretta E. Lynch, United States Attorney for
the Eastern District of New York, Brooklyn, New
York.
*
The Clerk of the Court is directed to amend the caption to read as shown above for
purposes of this order.
Appeal from the United States District Court for the Eastern District of New York
(Dora L. Irizarry, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court entered on March 13, 2009, is AFFIRMED.
Defendant Sylvester Twine appeals from an order denying him bail pending trial on
a charge of conspiracy to distribute and possess with intent to distribute 50 grams or more
of crack cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A).1 We review a district
court’s bail determination for clear error and will not reverse “unless on the entire evidence
we are left with the definite and firm conviction that a mistake has been committed.” United
States v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation marks omitted); see
also United States v. LaFontaine, 210 F.3d 125, 130 (2d Cir. 2000); United States v. Ferranti,
66 F.3d 540, 542 (2d Cir. 1995). We detect no such error in this case.
Because Twine is charged with serious drug offenses, a rebuttable presumption arises
that “no condition or combination of conditions will reasonably assure” his appearance or
“the safety of any other person and the community.” 18 U.S.C. § 3142(e); see also United
States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001). The record convincingly supports the
district court’s finding that Twine failed to rebut this presumption. See 18 U.S.C. § 3142(g)
1
On April 22, 2010, a grand jury returned a superseding indictment charging Twine
with two counts of possession with intent to distribute crack cocaine in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(C), and one count of conspiracy to distribute cocaine and crack cocaine
in violation of 21 U.S.C. § 846. We review the district court’s order based on the conspiracy
charge pending at the time, but we note that the subsequently added charges only strengthen
the basis for detention.
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(identifying relevant factors to include (1) the nature and circumstances of the offense
charged, (2) the strength of the government’s case, (3) the defendant’s history and
characteristics, and (4) the nature and seriousness of the danger to the community posed by
pre-trial release). The conspiracy charge pending at the time of the district court’s detention
order carries a prison term of ten years to life, see 21 U.S.C. §§ 841(a), (b), 846, providing
a strong incentive to flee. This conclusion is reinforced by the strength of the government’s
case, which is largely based on recorded evidence. The defense may be able to challenge the
meaning of what was said, but not the fact that it was said.
Further, Twine’s alleged commission of the charged crime while on supervised release
and his extensive history of criminal activity, often committed while on probation or
supervised release and sometimes threatening violence, strongly indicate Twine’s inability
to conform his conduct to the law, augmenting concerns as to both his ability to abide by bail
conditions and his posing a danger to the community. In these circumstances, the district
court acted within its discretion in concluding that Twine’s proposal of house arrest and four
suretors with no assets and minimal income was insufficient to overcome the presumption
of flight and danger.
Because we detect no error, let alone clear error, in the district court’s determination
that the proposed bail conditions could not reasonably assure Twine’s appearance at trial or
the safety of the community, the detention order is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
3