UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 07-mj-048

Derek Potocki

ORDER OF DETENTION PENDING TRIAL

In accordance with Section 3142(f) of the Bail Reform Act,

18 U.S.C. §§ 3141 et seq., a hearing was conducted on August 9,

2007, for the purpose of determining whether to detain defendant,

Derek Potocki, who has been charged with committing a bank

robbery, at a bank whose accounts were then insured by the FDIC,

in violation of 18 U.S.C. § 2113(a). 

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,

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

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 a preponderance of the evidence to prove risk

of flight. See Patriarca, 948 F.2d at 792-93. Facts necessary

to find that no combination will reasonably assure the safety of

any person and the community require satisfaction of the “clear

and convincing” standard. 18 U.S.C. § 3142(f)(2). 

In the case at hand, I have made a finding of probable cause

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to believe that the offense charged has been committed and that

the defendant has committed the same. 

Here, I find that the government has met its burden with

regard to risk of flight. Specifically, the offense was

committed within 90 days of the defendant being sentenced on

state charges for burglary and drug convictions and having

received suspended sentences. It is anticipated that those

suspended sentences will be imposed. The details of the offense

and strength of the government’s case gravitate toward this

finding, notwithstanding the defendant’s exculpatory statements

to the contrary.

I am satisfied from the representations offered during the

hearing that no condition or combination of conditions will

reasonably assure the appearance of the defendant as required. 

Upon full consideration of the arguments offered by the

government and defense, I am satisfied that the defendant poses a

risk of flight. 

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 confinement in a

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corrections facility separate, to the extent practicable, from

persons awaiting or serving sentences or being held in custody

pending appeal. The defendant shall be afforded a reasonable

opportunity for private consultation with defense counsel. On

order of a court of the United States or on request of an

attorney for the Government, the person in charge of the

corrections facility shall deliver the defendant to the United

States Marshal for the purpose of an appearance in connection

with a court proceeding.

SO ORDERED.

/s/Justo Arenas 

Justo Arenas

United States Magistrate Judge

Date: August 10, 2007

cc: Terry L. Ollila, AUSA

 Jonathan Saxe, Esq.

 U.S. Marshal

 U.S. Probation

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