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.
-------------------------------------------------------------
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.

                                              2
(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




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