1It is not clear under the amended Federal Rules that

defendant is entitled to a detention hearing in the arresting

jurisdiction. See United States v. Zu Quan Zhu, 215 F.R.D. 21

(D.Mass. 2003) (no jurisdiction); United States v. Vega, 438 F.3d

801, 802 (7th Cir. 2006) (implicit recognition of jurisdiction).

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-mj-048-MJ

Howard Dennis Kelly

ORDER OF DETENTION PENDING TRIAL

Upon motion of defendant, without objection by the

government, a bail hearing was conducted on May 11, 2006, for the

purpose of determining whether to detain defendant, Howard Dennis

Kelly, who has been indicted on an escape charge, 18 U.S.C. §

876.1

Under 18 U.S.C. § 3142(b), a court, in making a

determination regarding detention, must evaluate the risk of the

defendant's flight, the risk to the safety of any other person,

and the risk to the safety of the community. In circumstances

when detention is not mandated by the court, the court is

nonetheless empowered to impose conditions on release. 18 U.S.C.

§ 3142(c). 

Pursuant to the provisions of 18 U.S.C. § 3142(g) a court,

in assessing the risks noted in 18 U.S.C. § 3142(b), shall

Case 1:06-mj-00048-JM Document 8 Filed 05/12/06 Page 1 of 3
2

consider the following: (1) the nature and circumstances of the

offense charged; (2) the weight of the evidence as to guilt; 

(3) the history and characteristics of the accused, including

family ties, past history, financial resources and employment;

and (4) the nature and seriousness of the danger to any person or

the community that would be posed by a release.

During the course of a hearing conducted pursuant to 18

U.S.C. § 3142, the government typically retains the burden of

persuading the court that “‘no condition or combination of

conditions will reasonably assure’ the defendant's presence at

trial.” United States v. Perez-Franco, 839 F.2d 867, 870 (1st

Cir. 1988) (quoting United States v. Palmer-Contreras, 835 F.2d

15, 17-18 (1st Cir. 1987)); United States v. Patriarca, 948 F.2d

789, 793 (1st Cir. 1991). For its part, the government is

required to offer clear and convincing evidence of dangerousness;

and a preponderance of the evidence to prove risk of flight. See

Patriarca, 948 F.2d at 792-93.

Here, I find that the defendant has met its burden. 

Specifically, the nature of the offense, “escape,” certainly

suggests a risk of flight. The indictment itself and the

furlough application provide sufficient weight. His prior

criminal record, new charges in Maine, and prior escape combined

with no ties to the community mandate detention.

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3

Accordingly, it is ORDERED that the defendant be detained

pending trial.

The defendant is committed to the custody of the Attorney

General or his designated representative for transport to the

Western District of New York to answer the indictment.

SO ORDERED.

/s/ James R. Muirhead 

James R. Muirhead

United States Magistrate Judge

Date: May 12, 2006

cc: Jonathan R. Saxe, Esquire

Mark E. Howard, Esquire

U.S. Marshal

U.S. Probation

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