Order Granting in Part Government's Motion to Revoke Magistrate Judge's Order of Bond (S.D. Fla., Dkt. 18)

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Order in United States v. Kenny Terlent, Case No. 21-cr-20380-Scola, in the U.S. District Court for the Southern District of Florida, entered July 21, 2021 as Document 18. It grants in part the Government's motion (ECF No. 12) to revoke Magistrate Judge Edwin G. Torres's order of bond, reverses that order and revokes the defendant's bond. The Court finds by a preponderance of the evidence that the defendant poses a risk of flight and that no conditions will assure appearance, and it does not reach the Government's request for a finding of danger to the community. The order recites that the Indictment charged possession of fifteen or more unauthorized access devices, six counts of aggravated identity theft and illegal possession of a machinegun. It applies 18 U.S.C. § 3142(e) and § 3142(g) and orders the defendant detained pending trial.

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Case 1:21-cr-20380-RNS Document 18 Entered on FLSD Docket 07/21/2021 Page 1 of 4




                              United States District Court
                                        for the
                              Southern District of Florida

   United States of America                  )
                                             )
   v.                                        )      Case No. 21-cr-20380-Scola
                                             )
   Kenny Terlent, Defendant                  )
                  Order Granting in Part Government’s Motion
                  to Revoke Magistrate Judge’s Order of Bond

          The Government appeals United State Magistrate Judge Edwin G.
  Torres’s order denying motion for pretrial detention and releasing Defendant
  Kenny Terlent on bond. For the reasons stated below, the Court finds that the
  Government has established by a preponderance of the evidence that the
  Defendant poses a risk of flight if released and that no conditions or
  combination of conditions will assure his appearance. The Court does not
  reach that part of the Government’s motion which seeks a finding that the
  Defendant poses a danger to the community. The Government’s motion (ECF
  No. 12) is granted in part, Magistrate Judge Torres’s order is reversed, the
  Defendant’s bond is revoked, and the Defendant is ordered detained pending
  trial in this matter.

        1. Background
          On July 15, 2021, Terlent was charged by Indictment with: (1)
  possession of fifteen or more unauthorized access devices, (2) six counts of
  aggravated identity theft, and (3) illegal possession of a machinegun. (ECF No.
  11.)
          After his arrest Terlent was brought before Judge Torres for a detention
  hearing. The Government sought pretrial detention based on danger to the
  community and risk of flight. The Government further argued that no set of
  conditions, short of detention, could reasonably assure Terlent’s appearance
  before the Court or the safety of individuals and the community. In support of
  its request, the Government presented Secret Service Agent Natalya
  Kaczmarczyk. The Government also relied on the Pretrial Services Report that
  recommended that Terlent be detained pending his trial.
          After considering the evidence, Judge Torres denied the Government’s
  request for pretrial detention and ordered Terlent to be released on bond.
  Judge Torres granted the Government’s request to stay execution of the bond
  for a period of seven days. The Government appealed Judge Torres’s order of
  bond, arguing that Terlent poses a severe risk to the community and risk of
  flight.
      This Court held a hearing on the Government’s motion on July 21, 2021.
  Both sides were offered the opportunity to present additional evidence or
Case 1:21-cr-20380-RNS Document 18 Entered on FLSD Docket 07/21/2021 Page 2 of 4




  testimony and declined to do so. The Court conducted a de novo review and
  considered the written submissions of the parties, the transcript of the
  detention hearing held before Magistrate Judge Torres, and the arguments of
  counsel. The Court finds by a preponderance of the evidence that Terlent poses
  a risk of flight.

     2. Legal Standards

          Title 18 U.S.C. § 3145(a)(1) provides that, “[i]f a person is ordered
  released by a magistrate judge,” “the attorney for the Government may file, with
  the court having original jurisdiction of the offense, a motion for revocation of
  the order or amendment of the conditions of release.” The Court reviews the
  Government’s challenge to Judge Torres’s bond order de novo. United States v.
  Hurtado, 779 F.2d 1467, 1471-1472 (11th Cir. 1985); United States v. Rivera,
  90 F. Supp. 2d 1338, 1339-1340 (S.D. Fla. 2000). The Court must exercise
  independent judgment as to the facts before it and include findings of fact and
  reasons for detention. United States v. Gaviria, 828 F.2d 667, 670 (11th
  Cir.1987). Here, the Court considers the transcript of the hearing before Judge
  Torres, the Pretrial Services Report, the parties’ pleadings, and the arguments
  presented at the hearing on July 21, 2021.
          The Court notes that the Bail Reform Act, 18 U.S.C. § 3141, et seq.
  (hereinafter the “Act”) governs the release and detention of a defendant prior to
  trial. 18 U.S.C. § 3142(f)(1) entitles the Government to move for detention if the
  defendant has been charged with one of the offenses enumerated in the Act
  which Congress has determined warrant detention. Where a charged offense is
  described in 18 U.S.C. § 3142(f)(1), there is a rebuttable presumption that no
  combination of conditions will reasonably assure the safety of any other person
  or the community. See 18 U.S.C. § 3142(e). The Government concedes that
  Defendant has not been charged with an offense that triggers a presumption in
  favor of detention. (Tr. July 7, 2021, ECF No. 7 at 48.)
          Alternatively, as in the matter currently before the Court, the
  Government may move for detention where the matter involves a serious risk
  that the defendant will flee or obstruct or attempt to obstruct justice. See id. at
  § 3142(f)(2). When considering pre-trial detention, the Court must decide
  whether there are conditions of release that will reasonably assure the
  appearance of the defendant and protect the safety of any other person or the
  community. See 18 U.S.C. § 3142(e). Factors relevant to this inquiry are: (1)
  the nature and circumstances of the offense(s), including whether the offense(s)
  are a crime of violence or involve a narcotic drug, (2) the weight of the evidence,
  (2) the history and characteristics of the defendant and (4) the nature and
  seriousness of the danger posed by the defendant’s release. See 18 U.S.C. §
  3142(g).
          With regards to dangerousness, the Government must present clear and
  convincing evidence that no conditions of release will reasonably assure the
  safety of any other person or the community. United States v. Rodriguez, 897
Case 1:21-cr-20380-RNS Document 18 Entered on FLSD Docket 07/21/2021 Page 3 of 4




  F.Supp. 1461, 1464 (S.D. Fla.1995). Alternatively, regarding the risk of flight,
  the Government bears the burden of establishing by a preponderance of the
  evidence that no conditions will reasonably assure the defendant’s presence at
  trial. United States v. Medina, 775 F.2d 1398, 1402 (11th Cir.1985). A finding
  of either danger to the safety of any other person or the community or risk of
  flight is sufficient to detain the defendant pending trial. King, 849 F.2d at 488.
  If, based on the evidence presented, no conditions will reasonably assure the
  defendant’s presence or the safety of any other person or the community, then
  the Court must order detention. See 18 U.S.C. § 3142(e). Conversely, if there
  are conditions that will ensure the appropriate safeguards, then the Court
  must release the defendant subject to these conditions. See id. at § 3142(c).

     3. Analysis
         The Court finds that Terlent poses a risk of flight. Additionally, there are
  no conditions of release that will reasonably assure Terlent’s appearance and
  protect the safety of the community.
         Terlent poses a risk of flight. When law enforcement searched his
  residence in connection to this case, Terlent fled the scene and threw his cell
  phone into a nearby lake, presumably, in an attempt to destroy evidence.
  Additionally, Terlent had access to thousands of pieces of personal identifying
  information, which would allow him to commit access decide fraud and obtain
  proceeds to flee. The search of Terlent’s iCloud account revealed a voluminous
  PDF titled, “I’m Rich Bitch,” that contained thousands of social security
  numbers, credit card numbers, debit card numbers, names, dates of birth, and
  addresses.
         Terlent is also aware that the firearm found during the search of his
  residence, which forms the basis of one of the charges against him, has been
  connected to five other violent offenses. The Court notes that Terlent has not
  been charged with any offenses related to those crimes. Even so, the potential
  of being charged with additional and more serious offenses further incentivizes
  Terlent to flee if released on bond.
         Terlent has been charged with illegal possession of firearm that has been
  connected to several other crimes. Additionally, Terlent has also been linked to
  a violent street gang, 77th Street. Law enforcement’s investigation revealed that
  Terlent communicated via text message with 77th Street gang members within
  the hour of the murder of P.P. Terlent texted the address of the murder.
  Additionally, one 77th Street member (“Witness 1”) stated to law enforcement
  that Terlent had been involved with P.P.’s murder to avenge the death of a 77th
  Street gang member.
         The Court must also decide whether there are conditions of release that
  will reasonably assure the appearance of the defendant and protect the safety
  of any other person or the community. After careful consideration of the factors
  enumerated in 18 U.S.C. § 3142(g), the Court finds that there are no such
  conditions.
         Terlent is not charged with violations that would give rise to the
Case 1:21-cr-20380-RNS Document 18 Entered on FLSD Docket 07/21/2021 Page 4 of 4




  rebuttable presumption of 18 U.S.C. § 3142(e). In other words, Defendant has
  not been charged with a crime involving narcotics, nor has Defendant been
  charged with a crime involving violence. However, the nature of the charged
  offenses is nonetheless very serious. United States v. Manukyan, No. 15-80183-
  CR, 2016 WL 8674496, at *2 (S.D. Fla. Apr. 8, 2016) (Brannon, MJ.) report
  adopted (ECF No. 38) (S.D. Fla. April 27, 2016) (Middlebrooks, J.)
         The weight of the evidence is significant. A search of Terlent’s residence,
  revealed bank documents in other people’s names, burner phones, and a
  Chime card, a device commonly used to conduct fraudulent transfers. A search
  of Terlent’s iCloud account also included a PDF containing thousands of pieces
  of personal identifying information. During the search law enforcement also
  discovered a firearm that had been hidden in a hamper. Terlent had sent
  several text messages and pictures referencing a similar firearm.
         Terlent also has an extensive criminal record. However, even more
  concerning than his previous criminal charges, is a systemic pattern of
  disregard for court orders. Indeed, as recently as 2018 and 2019, there are
  records indicating that Terlent has not complied with the terms of supervised
  release in various state cases. Terlent has failed to appear on at least three
  occasions in those state cases. Accordingly, the Court is not confident that if
  released Terlent would comply with the terms of supervised release or appear
  in later hearings and trial.

     4. Conclusion
        For these reasons, the Court finds that Terlent poses a risk of flight. There
  are no conditions that could ensure his appearance at trial. Accordingly, the
  Government’s motion (ECF No. 12) to revoke Judge Torres’s order on bond is
  granted in part, Judge Torres’s order releasing Terlent is reversed, and Terlent’s
  bond is revoked.
        Defendant is committed to the custody of the Attorney General for
  confinement in a corrections facility separate, to the extent practicable, from
  persons awaiting or serving sentences or being held in custody pending appeal.
       Defendant shall be        awarded    reasonable    opportunity   for   private
  consultation with counsel.
         Upon order of the Court, the Defendant shall be delivered to the custody
  of the U.S. Marshal for the purpose of an appearance in connection with a court
  proceeding.
        Done and ordered in chambers, at Miami, Florida, on July 21, 2021.



                                              _______________________________
                                              Robert N. Scola, Jr.
                                              United States District Judge


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