UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 08-cr-19-01-SM

Anthony Seward

O R D E R

On September 14, 2011, defendant appeared for a preliminary 

hearing under Fed. R. Crim. P. 32.1 on three alleged violations 

of conditions of supervision, as charged in the government's 

petition dated July 15, 2011 (doc. no. 106). Defendant is on 

release from his 2010 conviction for Possession with Intent to 

Distribute Cocaine Base ("Crack") in violation of 21 U.S.C. § 

841(a)(1).

At the preliminary hearing, the following three witnesses 

testified for the government: (1) U.S. Probation Officer Matt 

DiCarlo, (2) U.S. Probation Officer Daniel Gildea, and (3) 

Officer Daniel Doherty of the Manchester Police Department. The 

government did not call the alleged victim (Sandra Alicia) as a 

witness, but instead introduced her hearsay statements through 

the testimony of Officers Gildea and Doherty. Defendant 

objected to the introduction of her statements on grounds of 

hearsay and sought the opportunity, pursuant to Rule 

32.1(b)(1)(B)(iii), to confront and cross-examine Ms. Alicia. At 

the close of the government's case, the court ruled orally from 

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the bench that the "interest of justice" did not require the 

government to produce Ms. Alicia for cross-examination. The 

court incorporates it oral ruling herein, and for the reasons 

stated on the record, allowed the hearsay testimony.1

Following the hearing, the court issued its findings orally 

from the bench that the government's evidence established 

probable cause that defendant had violated all three conditions, 

as charged in the petition. Those findings are incorporated 

herein.

 1 In addition to its confrontation argument, the 

defendant urged the court not to allow the alleged victim's 

hearsay statements on the basis of assertions made by the 

government at defendant's initial appearance before Magistrate 

Judge Lynch on September 9, 2011 ("September 9 hearing"). The 

court has reviewed a recording of the September 9 hearing. At 

that hearing, the government argued that it needed a continuance 

to procure the attendance of two witnesses to testify at the 

preliminary hearing: Officer Doherty and the alleged victim. 

Later in the September 9 hearing, however, the government 

indicated that it was prepared to go forward without those two 

witnesses. Defendant elected to agree to a three-day 

continuance to give the government time to procure the two 

witnesses. According to defense counsel's offer of proof, the 

government notified him on Monday, September 12, two days before 

this hearing, that it did not intend to call the alleged victim 

as a witness. The government did, as it stated at the September 

9 hearing, procure Officer Doherty's presence for this hearing. 

While it appears that defendant relied on the government's

assertion at the September 9 hearing (i.e., that it intended to 

call the alleged victim as a witness at the preliminary), there 

is nothing in the record to support a finding that the assertion 

was designed to "trick" or persuade the defendant into agreeing 

to the three-day continuance. Indeed, the continuance allowed 

defendant the opportunity to confront and cross-examine Officer 

Doherty. Thus, the court finds that the facts surrounding the 

continuance do not alter its "interest of justice" analysis 

under Rule 32.1(b)(1)(B)(iii). 

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Defendant sought release under Rule 32.1(a)(6). The 

government sought detention. Under Rule 32.1(a)(6), defendant 

bears the burden of establishing by clear and convincing 

evidence that he will not flee and that he poses no danger to 

any other person or to the community. The court issued its 

ruling orally from the bench. The court incorporates its oral 

ruling herein, and for the reasons stated on the record, finds

that defendant did not meet his burden to show by clear and 

convincing evidence that his release, even on strict conditions, 

would pose no danger to any other person or the community. 

Accordingly, it is ORDERED that the defendant be detained 

pending a final revocation hearing. 

The defendant is further ORDERED to have no contact, either 

direct or indirect, with Sandra Alicia or Charlene Stewart 

during the pendency of his revocation hearing. 

The defendant is committed to the custody of the Attorney 

General or his designated representative for confinement in a 

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 

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States Marshal for the purpose of an appearance in connection 

with a court proceeding. 

SO ORDERED.

 

Landya B. McCafferty

United States Magistrate Judge

Date: September 16, 2011

 

cc: Michael Ramsdell, Esq.

Debra M. Walsh, Esq.

Donald A. Feith, Esq.

U.S. Marshal

U.S. Probation

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