15-1767-cr
United States v. Artis


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY 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 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 23rd day of June, two thousand fifteen.

PRESENT: PIERRE N. LEVAL,
                 CHESTER J. STRAUB,
                 REENA RAGGI,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                         v.                                               No. 15-1767-cr

SOLOMON ARTIS, AKA Light, AKA Spaz,
                                 Defendant-Appellant.*
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APPEARING FOR APPELLANT:                         LAWRENCE MARK STERN, ESQ., New
                                                 York, New York.

APPEARING FOR APPELLEE:                          ALLON LIFSHITZ (Peter A. Norling, Rena
                                                 Paul, on the brief), Assistant United States
                                                 Attorneys, for Kelly T. Currie, Acting United
                                                 States Attorney for the Eastern District of
                                                 New York, Brooklyn, New York.

*
 The Clerk of Court is respectfully directed to amend the official caption to conform
with the above.

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       Interlocutory appeal from an order of the United States District Court for the

Eastern District of New York (Dora L. Irizarry, Judge; James Orenstein, Vera M.

Scanlon, Magistrate Judges).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order entered on May 18, 2015, is AFFIRMED.

       Defendant Solomon Artis, who stands indicted for conspiracy to commit murder in

aid of racketeering and possession of a firearm in furtherance of a crime of violence, see

18 U.S.C. §§ 1959(a)(5), 924(c)(1)(A)(i), 2, appeals from the district court’s order

detaining him without bail pending trial, see 18 U.S.C. §§ 3142, 3145(c).         We review

the district court’s findings of fact—including its ultimate findings as to risk of flight and

danger to the community—for clear error, see United States v. English, 629 F.3d 311,

319–20 (2d Cir. 2011), 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). We

review questions of law de novo. See United States v. English, 629 F.3d at 319–20.

We assume the parties’ familiarity with the facts and the record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

1.     Legal Standard

       The Bail Reform Act of 1984 ordinarily requires pre-trial release under such

conditions as the court “determines 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(b), (c).   If, however, the court finds “that no condition or combination of

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conditions will reasonably assure the appearance of the person as required and the safety

of any other person and the community,” the court “shall order the detention of the

person before trial.” Id. § 3142(e)(1); see United States v. English, 629 F.3d at 318–19;

United States v. Sabhnani, 493 F.3d at 75. The government bears the burden of proving

risk of flight by a preponderance of the evidence, but it must prove danger to the

community by clear and convincing evidence. See 18 U.S.C. § 3142(g); United States

v. Sabhnani, 493 F.3d at 74–75.

      Where probable cause supports a charge that the person seeking bail committed

certain offenses, including violations of § 924(c), there is a rebuttable presumption that

no conditions of release will reasonably assure against flight or dangerousness. See 18

U.S.C. § 3142(e)(3).    “[A]n indictment returned by a duly constituted grand jury

conclusively establishes the existence of probable cause for the purpose of triggering the

rebuttable presumptions set forth in § 3142(e).” United States v. English, 629 F.3d at

319 (internal quotation marks omitted). Such a presumption shifts to the defendant “a

limited burden of production—not a burden of persuasion” to adduce “evidence that he

does not pose a danger to the community or a risk of flight.” United States v. Mercedes,

254 F.3d 433, 436 (2d Cir. 2001). Such production does not eliminate the presumption;

rather, the presumption “remains a factor to be considered among those weighed by the

court,” id., which factors are delineated in the statute, see 18 U.S.C. § 3142(g). “At all

times, however, the government retains the ultimate burden of persuasion.” United

States v. English, 629 F.3d at 319 (internal quotation marks omitted).



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2.     The District Court’s Findings Are Not Clearly Erroneous

       Artis argues that the facts alleged in the original charging complaint do not

establish probable cause to think he committed a § 924(c) offense triggering the statutory

presumption.    That question is now rendered moot by Artis’s indictment, which

conclusively establishes probable cause for the firearm charge. See United States v.

English, 629 F.3d at 319.

       At the detention hearing, Artis attempted to rebut the § 3142(e)(3) presumption in

favor of detention by pointing to the purported weakness of the government’s case and

his own lack of a prior criminal record. These circumstances are not so compelling as to

defeat the presumption or to manifest clear error in the district court’s determination that

no combination of release conditions, and specifically not the conditions proposed by

Artis, could reasonably assure against dangerousness and the risk of flight.

       We have considered Artis’s remaining arguments, and we conclude that they are

without merit. Accordingly, the order of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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