United States v. Horton, S1 16-cr-0212 (LAK)

• Decision Date: 20 October 2016
• Docket Number: S1 16-cr-0212 (LAK)
• Parties: UNITED STATES OF AMERICA, v. KAVONE HORTON, a/k/a "Styles," Defendant.
• Court: U.S. District Court — Southern District of New York

UNITED STATES OF AMERICA, v. KAVONE HORTON, a/k/a "Styles," Defendant.

S1 16-cr-0212 (LAK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 20, 2016

MEMORANDUM OPINION

Appearances:

Hagan Scotten

Rachel Maimin

Micah W.J. Smith

Jessica Feinstein

Drew Johnson-Skinner

Assistant United States Attorneys

PREET BHARARA

UNITED STATES ATTORNEY

Gary G. Becker

GARY G. BECKER, P.L.L.C.

Attorney for Defendant

LEWIS A. KAPLAN, District Judge.

Kavone Horton is one of 57 individuals indicted in this case. He and others are alleged to be members of 2Fly YGz ("2Fly"), a violent street gang. He is charged with (a) racketeering conspiracy, (b) narcotics conspiracy, (c) narcotics distribution within 1000 feet of a school, playground, and public housing development, and (d) use of firearms in furtherance of the racketeering and narcotics conspiracies.¹

Horton was arrested on April 27, 2016, and presented before the magistrate judge. The government sought an order of detention, which Horton opposed. Following a hearing on April 29, 2016, the magistrate judge ordered Horton released subject to certain conditions, including home detention, electronic monitoring, strict pretrial supervision, and drug testing, among other things.² The government sought review under the Bail Reform Act and this Court, after de novo review that included further proceedings, ordered Horton detained pending trial based on its finding "by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community if [Horton] were released from custody."³ Horton appealed. The Second Circuit, in a summary order, remanded the case with instructions that this Court vacate its prior detention order and hold further proceedings.⁴

Facts - The Prior Proceedings

I. April 29 Bail Hearing

During Horton's bail hearing before the magistrate judge, the government proffered, on the basis of cooperating witness testimony, social media postings, and New York City PoliceDepartment records, that Horton (a) is a member of 2Fly, (b) participated in street robberies and possessed guns, (c) was present at and participated in a March 2012 brawl with a rival gang that resulted in a fatal stabbing, (d) was present at an August 2012 nonfatal shooting involving three victims, at least two of whom were rival gang members, (e) was arrested in 2014 for possession of a "dangerous weapon," and (e) in April 2015 punched a then-girlfriend in the face and was escalating the violence at the time she reported the incident to the NYPD.⁵ The government submitted also two photographs of Horton as corroborating evidence of his gang involvement.⁶

Horton arguably contested some elements of the government's proffer and asked the magistrate judge not to credit it.⁷ But principal elements of Horton's contention that he should not be detained were the fact that he has no criminal record and a claim that he is not the same person in 2016 as perhaps he had been earlier. His counsel proffered that (a) the violent incidents at which he allegedly was present or involved took place several years ago, (b) Horton in 2014 moved from the Bronx, the locus of his alleged criminal activity, to Manhattan, (c) he has been employed continuously for the past three or four years, (d) he lived with his mother and sister, both of whomare employed gainfully, until the time of his arrest, and (e) he was enrolled full-time at the Borough of Manhattan Community College at the time of his arrest and recently had been offered employment.⁸

On that record, the magistrate judge ordered conditional release.⁹

II. May 3 Bail Hearing

The government applied for review of the release order. On May 3, 2016, this Court held a hearing to determine the matter de novo.¹⁰

During the May 3 hearing, the government proffered additional information in support of detention:

• Horton had admitted his presence at the March 2012 brawl and fatal stabbing to law enforcement officers.¹¹

• Information derived from the government's investigation will establish that 2Fly members engage in a practice called "mobbing," that is, gathering in large groups to travel to rival gang territory to commit violence.¹² 2Fly'spractice of mobbing, in the government's submission, tends to support Horton's membership in 2Fly and his involvement in the March and August 2012 incidents because each involved group violence against rival gang members.

• Cooperating witness testimony will establish that Horton held guns for the gang.¹³ Additionally, an intercepted March 9, 2016 call, the government claims, will establish that Laquan Parrish, the alleged leader of 2Fly, asked Horton to bring him a gun in Horton's possession on at least one occasion.¹⁴

• Social media activity, such as a March 2016 posting of "F L Y E R S" on Horton's Facebook account, evidences Horton's continued involvement with 2Fly.¹⁵

Horton again opposed the government's proffer and asked the Court not to credit it.¹⁶ In support of release, however, Horton largely stood on his original proffer and exhibits.¹⁷

During the hearing, the Court questioned defense counsel about his understanding of the showing a defendant must make to rebut the Bail Reform Act's presumption, in cases like this, in favor of detention and the subsequent significance of the presumption where rebutting evidence is presented. The Court engaged counsel in the following dialogue:

"THE COURT: Look, there is a statutory presumption that says unless I am really seriously convinced that letting your guy out on some conditions will reasonably ensure the safety of the community, he is in. You're telling me that the practical effect of that presumption is zero, that what has to happen here is in order to keep him in the government has to satisfy the burden of proof of the opposite proposition.

MR. BECKER: I don't think there is any question that [under Second Circuit case law], the presumption . . . once rebutted . . . even a minimal degree while it remains in the case does not carry the government's burden. . . .

THE COURT: So your position is that in a presumption case, the government comes in and says, Here is the presumption, and you stand up and you proffer that your client didn't do it, minimal evidence, and therefore he is entitled to be released?

MR. BECKER: Well, the question is whether or not that would rebut the presumption."¹⁸

This colloquy clarified for the Court (a) counsel's position that Horton need make only a minimal showing in order to rebut the statutory presumption, and (b) counsel's concession that the presumption, even once rebutted, remains a factor for the Court to consider in determining whether the government has sustained its burden of proof by clear and convincing evidence, although it is not, in counsel's view, alone sufficient to carry the government's burden.

The Court reserved decision at the conclusion of the May 3 proceedings. On May 4, 2016, however, it entered a written order that Horton be detained pending trial.¹⁹ It expressly noted that the grand jury found probable cause to believe that the defendant committed offenses thatgive rise, under the Bail Reform Act, to the presumption that "that no condition will reasonably assure the defendant's appearance and the safety of the community."²⁰ It went on to state:

"Without limiting the generality of the foregoing, the Court is persuaded that the bail conditions imposed by the magistrate judge, or any others that could be devised, would not address adequately that the grand jury found probable cause to believe that the defendant committed the four serious offenses charged in the indictment over a protracted period of time as part of a violent gang. The Court, although mindful of the possible length of pretrial detention in this case, finds, for that and additional reasons advanced by the government, [that there would be] a 'strong probability that [defendant] will commit additional crimes if released,' no matter the conditions imposed. See United States v. Colombo, 777 F.2d 96, 99 (2d Cir. 1985)."²¹

III. The Appeal

Horton appealed the Court's detention order.²² The Second Circuit expressly acknowledged that this Court had "stated the correct standards governing bail" in its written order of May 4, 2016.²³ Nonetheless, the panel construed the May 3 colloquy, in which the Court probed defense counsel on his understanding of the Bail Reform Act's rebuttable presumption, as perhaps evidencing a misplacement of the burden of persuasion. Notwithstanding the Court's application in the May 4 order of "the correct standards," the Second Circuit remanded the case for the Court to "reconsider bail under the correct burden of persuasion."²⁴

IV. Proceedings on Remand

Both sides made further submissions and reargued the matter extensively on remand.

A. Further Submissions by the Government

The government supplemented its proffer essentially as follows:

First, it said that, based on information from cooperating witnesses, Horton was "a full-fledged member of 2Fly who used the specialized greetings reserved—on pain of violent punishment—for 2Fly members, and affiliated with the leaders and core members of the gang."²⁵ That anticipated testimony, according to the government, is corroborated by a court-authorized wiretap that captured "Horton interacting with 2Fly's leaders and members."²⁶

Second, new sources of information now, according to the government, will establish that "Horton not only accompanied his fellow 2Fly members to commit [the August 2012] shooting, but personally fired at the victims."²⁷ A cooperating witness, who had not been cooperating with the government at the time of the initial bail hearings, is expected to testify that he heard from several 2Fly members that Horton fired shots.²⁸ This witness will testify also that Horton personally expressed to him a fear that someone would tell investigators about his role in the August 2012 shooting before he obtained bail.²⁹ Another cooperating witness will testify that other...