Opinion
MJ No. 1:21-MJ-02082
2021-03-23
UNITED STATES of America, Plaintiff, v. Rodric BEARD, Defendant.
Khalida A. Sims, Catherine Adinaro Shusky, Office of the Federal Public Defender, Northern District of Ohio, 750 Skylight Office Tower, 1660 West Second Street, Cleveland, OH 44113, for Defendant. Robert J. Kolansky, Office of the U.S. Attorney, Northern District of Ohio, Ste. 400, 801 Superior Avenue, W, Cleveland, OH 44113, for Plaintiff.
Khalida A. Sims, Catherine Adinaro Shusky, Office of the Federal Public Defender, Northern District of Ohio, 750 Skylight Office Tower, 1660 West Second Street, Cleveland, OH 44113, for Defendant.
Robert J. Kolansky, Office of the U.S. Attorney, Northern District of Ohio, Ste. 400, 801 Superior Avenue, W, Cleveland, OH 44113, for Plaintiff.
OPINION AND ORDER
J. Philip Calabrese, United States District Judge
This appeal from the decision of the Magistrate Judge denying detention of Rodric Beard pending trial presents close and difficult questions. Consistent with the Constitution's protection of liberty, federal law favors release, unless the defendant presents a flight risk or presents a danger to himself or others. Congress has declared that certain offenses carry a rebuttable presumption of dangerousness, and Mr. Beard faces charges (for distribution and possession of controlled substances with the intent to distribute) giving rise to such a presumption. Even then, given the centrality of liberty to our constitutional order and the presumption of innocence, the United States must prove by clear and convincing evidence that detention is warranted.
Here, like the Magistrate Judge, the Court finds that Mr. Beard has rebutted the presumption in favor of detention with sufficient evidence. Still, Congress's judgment retains evidentiary force, and the United States presents evidence that Mr. Beard poses a danger to the community. One of the difficulties of this case is that Mr. Beard poses a danger of largely middling and non-violent criminal activity. And detention works a great disadvantage to Mr. Beard as he prepares his defense and attempts to show the Court that an appropriate sentence might be something less than what the guidelines ultimately recommend (assuming any conviction does not carry a mandatory minimum sentence). But the Court cannot say that the criminal activity in which Mr. Beard has allegedly engaged does not count as dangerous within the meaning of the statute, even though non-violent. Then, the question becomes whether the United States has carried its burden by clear and convincing evidence. Though that question is close, the Court believes it has. For these reasons as more fully explained below, the Court REVOKES the order of the Magistrate Judge setting bond and ORDERS the detention of Rodric Beard pending trial.
STATEMENT OF FACTS
Mr. Beard was arrested on March 3, 2021 on a criminal complaint alleging he violated the Controlled Substances Act on three occasions, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The complaint (ECF No. 1) includes an affidavit from a special agent for Homeland Security Investigations who is a former police officer and narcotics detective in Lorain, Ohio, where Mr. Beard is a lifelong resident (ECF No. 1-1). The affiant sets forth facts establishing his belief that there is probable cause Mr. Beard committed the charged offenses. (ECF No. 1-1, ¶ 3, PageID #2–3.) He describes three controlled purchases of fentanyl from Mr. Beard a reliable confidential informant made on December 29, 2020, January 4, 2021, and January 7, 2021. The confidential informant initiated each purchase by making a controlled and recorded phone call to Mr. Beard, then meeting Mr. Beard in person to complete the exchange. (Id. , ¶¶ 4, 12 & 20, PageID #3, 5 & 7.)
After the third controlled sale, Lorain Police narcotics detectives arrested Mr. Beard. (Id. , ¶ 28, PageID #9.) In a search incident to arrest, detectives found $1,225 cash along with $40 from the controlled buy earlier that day. (Id. , ¶ 29.) Detectives also found two cell phones that rang when the officers dialed the numbers called to initiate the controlled buys. (Id. ) Officers conducted a strip search and discovered several plastic bags containing narcotics. (Id. , ¶ 32, PageID #9–10.) Lab results returned in February 2021, after Mr. Beard's arrest, confirmed the substances purchased at each controlled buy included fentanyl and other controlled substances. (Id. , ¶¶ 11, 19 & 27, PageID #5, 6 & 8.) In total, the quantity of illicit drugs at issue in the three controlled sales amounted to approximately 0.77 grams. (Id. )
STATEMENT OF THE CASE
On March 3, 2021, the United States filed a criminal complaint charging Mr. Beard with distribution and possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). (ECF No. 1.) Federal authorities arrested him that day, and Mr. Beard appeared in federal court by video after his arrest. At Mr. Beard's initial appearance, the United States moved for Mr. Beard's pretrial detention.
The Magistrate Judge held a detention hearing on March 8, 2021. Based on the waiver of the preliminary hearing and the information before it, the court found "sufficient probable cause to believe that the violations alleged in the criminal complaint were committed by the defendant" and bound over the matter to the grand jury. (ECF No. 1 5, PageID #51:4–10.) A grand jury has not yet convened to consider an indictment.
A. The Detention Hearing
The United States proffered the pretrial services report and the affidavit accompanying the criminal complaint (ECF No. 1-1). In addition, it proffered two exhibits. The first was a Lorain Police Narcotics Investigation Report, dated February 25, 2017, detailing the facts underlying a State case in which Mr. Beard was convicted of corrupting another with drugs, a second-degree felony under Ohio law, and trafficking in heroin, a fifth-degree felony, and sentenced to two years in prison. (ECF No. 17-1.) Mr. Beard was 23 at the time. (ECF No. 15, PageID #53:11-22.) The corruption charge was the result of Mr. Beard selling drugs that resulted in a fatal overdose. (Id. , PageID #59:16–24.)
The second exhibit proffered was a Lorain Police Department Field Case Report, dated February 25, 2021, explaining the facts underlying a charge of receiving stolen property, a fourth-degree felony under State law. (ECF No. 15, PageID #53:23–54:1–8; ECF No. 17-2.) Leading up to that charge, Mr. Beard was involved in a car accident and was apprehended a short distance away, fleeing from the scene while released on bond from the State court charges that led to this federal matter. (ECF No. 15, PageID #65:15–25.) Defense counsel pointed out, however, that he was not charged with fleeing or eluding law enforcement after the incident. (Id. , PageID #70:13–23.)
The United States also proffered facts related to Mr. Beard's 2012 conviction for felonious assault, a second-degree felony, for which he was sentenced to two years of community control (probation) and 90 days in jail. The United States stated the conviction arose from gang-related activity in Lorain during which Mr. Beard "provided a handgun to another individual who subsequently fired multiple shots at three individuals in a vehicle ...." (Id. , PageID #54:17–24.)
The United States argued Mr. Beard did not produce evidence to rebut a presumption of danger and urged the Court to detain Mr. Beard. (Id. , PageID #57:1–6.) In support of detention, the United States argued that (1) Mr. Beard is charged with distributing dangerous controlled substances; (2) the serious nature of the crimes charged and possible "lengthy prison sentence if convicted" presents a risk of flight; (3) the evidence in support of the charged conduct demonstrates he is a danger to the community; (4) he sold drugs in three controlled purchases and was in possession of additional drugs and money when arrested at a time when he was on supervision by the Adult Parole Authority in Ohio for his prior convictions of corrupting another with drugs and trafficking in drugs; (5) Mr. Beard appears to be in good physical and mental health without strong evidence of any current drug addictions; (6) his family ties to the community "have done very little to stop him from engaging in this very dangerous conduct"; (7) he is currently unemployed since March 2020 and has no financial resources; (8) his prior 2012 conviction for felonious assault related to local gang activity; (9) there is some record of failing to appear for court and probation dates; and (10) he was "arrested fleeing from a stolen vehicle" while on bond. (Id. , PageID #57:14–64:20.)
Mr. Beard proffered the pretrial services report, highlighting its recommendation of bond for Mr. Beard. (Id. , PageID #55:10–13.) In addition, defense counsel proffered Mr. Beard's "history, residence, and daily ties and connection with the community" as described in the pretrial services report. (Id. , PageID #54:14–16.) During argument, defense counsel represented that Mr. Beard has been compliant with his post-release control, other than the conduct giving rise to the charges at issue in federal court. Following his release from prison in May 2019, defense counsel represented that Mr. Beard was employed at a temp agency until March 2020, when the Covid-19 pandemic resulted in his unemployment. (Id. , PageID #68:16–21.) With respect to danger to the community, defense counsel stated, "we can't dispute his record." (Id. , PageID #67:21.) But counsel emphasized that the pretrial services report nevertheless recommended conditional release and urged the court not to punish Mr. Beard now for past criminal conduct. (Id. , PageID #67:22–23.)
The pretrial services representative did not offer any additional information for the court to consider. (Id. , PageID 56:3–7.)
After the close of arguments, the Magistrate Judge found probable cause to support the allegations in the criminal complaint and, as a result, that he must consider the statutory rebuttable presumption in favor of detention. (Id. , PageID #71:8–20.) The Magistrate Judge went on to find that Mr. Beard presented sufficient evidence to rebut the presumption. (Id. , PageID #71:21–72:9.) Noting that the presumption does not disappear upon the defendant's production of evidence, the court took the matter under advisement to determine "whether the government has shown by clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of the community, or, in the alternative, whether the government as shown by a preponderance of the evidence that no condition or combination of conditions would reasonably assure the defendant's appearance as required ... pursuant to the ... Bail Reform Act." (Id. , PageID #72:10–20.)
B. The Bond Hearing
The Magistrate Judge held a bond hearing on March 15, 2021, at which he denied the motion of the United States for detention and instead granted conditional release. (ECF Nos. 16 & 18.) The court considered "all the evidence presented by the parties" and denied the motion for pretrial detention. (ECF No. 16, PageID #79:24–80:1.) In particular, the court noted the pretrial services report evidenced "substantial community ties, a suitable residence to reside ... and characteristics that do not persuade this court that there are no conditions or combination of conditions that would ... not reasonably assure the defendant's appearance or the safety of the community should he be released." (Id. , PageID #79:6–14.) The court was guided by the presumption of innocence and that "detention is only appropriate if there is clear and convincing evidence that no conditions or combination of conditions would reasonably assure the safety of the community or the appearance of the defendant at future court proceedings ...." (Id. , PageID #79:15–23.) The court found the exhibits the United States presented did not outweigh the factors in favor of pretrial release. (Id. , PageID 80:8–21.) Accordingly, the court ordered pretrial release on the standard and special conditions set forth in the pretrial services report (Id. , PageID #87:1–5; ECF No. 18.) C. Appeal by the United States
At the conclusion of the bond hearing, the United States stated its intent to appeal the release order. (ECF No. 16, PageID #89:15–16.) The court stayed the pretrial release order pending the appeal. (Id. , PageID #22:1–5; ECF No. 18, PageID #120.) The United States formally appealed the release order on March 16, 2021 pursuant to 18 U.S.C. § 3145(b), which permits review of a magistrate judge's detention or release order by a federal district court with original jurisdiction. (ECF No. 17.) It argues Mr. Beard failed to rebut the presumption of detention based on the danger he presents to the community and that no set of release conditions will assure the community's safety.
This Court promptly held a hearing on this appeal on March 18, 2021. The United States proffered six exhibits in addition to the transcripts from the proceedings before the Magistrate Judge: (1) the Lorain Police Narcotics Investigation Report, dated February 25, 2017; (2) Lorain Police Department Field Case Report, dated February 25, 2021; (3) a Lorain Municipal Court docket sheet for the original State charges, showing bond was set at $75,000 on January 8, 2021; (4) a Lorain County Court of Common Pleas Docket Sheet for the State case with the same underlying facts as this matter, indicated the $75,000 bond was posted on February 10, 2021; (5) a Lorain Municipal Court docket sheet for the receiving stolen property arrest on February 26, 2021; and (6) the conditions of supervision for Mr. Beard's release on parole in May 2019 from his conviction for corrupting another with drugs. Of these six exhibits, only the first two were before the Magistrate Judge.
In addition to these exhibits, the United States proffered additional facts regarding Mr. Beard's felonious assault conviction. On September 12, 2012, Mr. Beard and another individual shot at a moving vehicle with four passengers. Mr. Beard later handed a gun to his friend, who fired several shots at the vehicle. The vehicle was damaged. The United States represented that this incident was part of an ongoing gang feud between Lorain's rival South Side and West Side gangs. Finally, the United States proffered that when preparing the pretrial services report, the department does not look at all the details and underlying facts of prior convictions.
The United States then presented the testimony of Matthew Sedivy, a narcotics detective in the Lorain Police Department familiar with the investigation and arrest of Mr. Beard in this matter and his prior criminal history. First, the Detective recited the details of the controlled buys leading up to Mr. Beard's arrest. Then, he shared details of the investigation leading to Mr. Beard's conviction for corrupting another with drugs, in which fentanyl, among other drugs, was identified as the cause of an accidental overdose. Also, the Detective expounded on Mr. Beard's gang affiliations and the gang activity that contributed to his felonious assault conviction. According to the Detective, Mr. Beard affiliated himself with his current gang on social media as recently as December 2020.
On cross-examination, the detective clarified that Mr. Beard was only arrested after the third controlled buy, that Mr. Beard was not charged with homicide in connection with the events resulting in his conviction for corrupting another with drugs, and that Mr. Beard is not currently being investigated for any gang-related activity.
Upon questioning from the Court, the Detective explained that the drug amounts purchased at each of the three controlled buys were typical user amounts normally purchased "on the street without the police presence." He stated that less than a tenth of a gram of fentanyl can cause an overdose. Regarding the gang activity in Lorain, the detective explained that the gangs involved did not have national affiliations and typically engaged in drug trafficking and crimes, like robberies.
The United States argues for detention. It concedes Mr. Beard rebutted the presumption of risk of flight, but maintains he has not rebutted the presumption of dangerousness to the community. As to dangerousness, the United States argued Mr. Beard's criminal history of violence and drug trafficking is "the best indicator of what's to come" if Mr. Beard is released. Further, it argued home incarceration will not be a sufficient condition of release to assure community safety because Mr. Beard could still use a telephone to complete drug deals from his home. In response, defense counsel reiterated that the corruption case did not involve charges for homicide, that Mr. Beard's strong ties to the community and lack of passport diminish any risk of flight, that Mr. Beard was not arrested after the first two controlled buys, and that his past substantial compliance with supervised release reflects he is not a danger to the community. The Court took the matter under advisement at the conclusion of the hearing. Although Mr. Beard and his counsel appeared by video, the Court notes that that fact did not impede Mr. Beard's ability to proffer evidence, cross-examine the witness the United States presented, or argue to the Court and address the Court's questions. Nor did the remote appearance of Mr. Beard and his counsel affect the Court's view of the information presented.
STANDARD OF REVIEW
District courts review a magistrate judge's release or detention order de novo. United States v. Tripplett , No. 1:19CR700, 2020 WL 6702118, at *1 (N.D. Ohio Nov. 13, 2020) (citing United States v. Alexander , 742 F. Supp. 421, 423 (N.D. Ohio 1990) ). On review, the district court engages "in the same analysis, with the same options, under § 3142 as the magistrate judge." United States v. Yamini , 91 F. Supp. 2d 1125 (S.D. Ohio 2000) (citing United States v. Maull , 773 F.2d 1479, 1482 (8th Cir. 1985) ).
ANALYSIS
Under the Bail Reform Act, "a defendant may be detained pending trial only if a judicial officer ‘finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]’ " United States v. Stone , 608 F.3d 939, 947 (6th Cir. 2010) (quoting 18 U.S.C. § 3142(e) ).
Where, as here, "there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act," a rebuttable presumption arises that no condition or combination of conditions on release will assure the defendant's appearance or the safety of the community. 18 U.S.C. § 3142(e)(3)(A). The parties do not dispute this presumption initially applies. To rebut this presumption, the defendant must produce some "evidence that he does not pose a danger to the community or a risk of flight." Stone , 608 F.3d at 945 (quoting United States v. Mercedes , 254 F.3d 433, 436 (2d Cir. 2001) ). This is not a heavy burden. Id.
"Even where a defendant satisfies his burden of production, however, ‘the presumption favoring detention does not disappear entirely, but remains a factor to be considered among those weighed by the district court.’ " Id. (quoting Mercedes , 254 F.3d at 436 ). The other factors a district court considers are: (1) the nature and circumstances of the offense, including whether the offense is a controlled substances offense; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that the defendant's release would pose. 18 U.S.C. § 3142(g)(1)–(4).
The United States retains the burden of persuasion. Stone , 608 F.3d at 945 (citing Mercedes , 254 F.3d at 436 ). It must "prove that no conditions of release can assure the defendant will appear and to assure the safety of the community." Id. at 946. Courts look to the factors enumerated in 18 U.S.C. § 3142(g) when determining whether the United States has carried its burden of persuasion. In meeting this burden, the government may proceed by proffer or hearsay. Stone , 608 F.3d at 948–49 (citation omitted). Consideration of these factors does not modify or limit the presumption of innocence. Id. at 946 (citing 18 U.S.C. § 3142(j) ).
As to risk of flight, the United States must carry its burden by a preponderance of the evidence. United States v. Hinton , 113 F. App'x 76, 77 (6th Cir. 2004). With respect to dangerousness, however, the United States must present clear and convincing evidence to prevail. Stone, 608 F.3d at 946 (citing 18 U.S.C. § 3142(f)(2)(B) ). Clear and convincing evidence requires a firm belief or abiding conviction that what is alleged is highly probable. Kelley v. Apria Healthcare, LLC , 232 F. Supp. 3d 983, 1003 (E.D. Tenn. 2017) ; Automotive Techs. Int'l., Inc. v. Delphi Corp. , 776 F. Supp. 2d 469, 477 (E.D. Mich. 2011) ; Cooney v. Bob Evans Farms, Inc. , 645 F. Supp. 2d 620, 629 (E.D. Mich. 2009) ; In re Bowling , 314 B.R. 127, 135 (Bkrtcy. S.D. Ohio 2004).
I. Whether the Presumption of Detention Arises
Under 18 U.S.C. § 3142(e)(3), the United States bears the burden to show probable cause that Mr. Beard committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. Stone, 608 F.3d at 945. A grand jury indictment establishes probable cause, id. , but an indictment has not been returned in this case which instead has proceeded by criminal complaint. Based on the information in the criminal complaint, accompanying affidavit, and the evidence presented to the Magistrate Judge and in connection with the hearing, the Court agrees with the Magistrate Judge that the requisite probable cause exists, and the presumption of detention arises.
II. Defendant's Burden of Production to Rebut the Presumption
Mr. Beard has produced some evidence tending to demonstrate that he is not a flight risk or a danger to the community. Regarding the former, Mr. Beard lives with his grandmother in Ohio, has three children and three siblings in the area in addition to his parents, does not have a passport, and has spent his life in and around the area. Regarding the risk of danger, defense counsel primarily relies on the recommendation of the pretrial services report for a bond pending trial. Further, counsel also points out that Mr. Beard was arrested based on controlled buys involving a confidential informant, that he has not been charged with murder or other violent conduct, and that this case does not involve an offense of violence. Therefore, Mr. Beard has put forward sufficient evidence to satisfy his burden of production to rebut the presumption of detention. In this respect, the Court also agrees with the Magistrate Judge.
III. The United States’ Burden of Persuasion
Next, the Court weighs the factors in Section 3142(g) with the presumption of detention imposed by Congress, which retains evidentiary force, to determine whether the United States has met its burden of persuasion that Mr. Beard should be detained. To merit an order of detention, the United States must prove either (1) by a preponderance of the evidence, Mr. Beard poses a risk of flight; or (2) by clear and convincing evidence, he poses a risk to the safety of others and the community.
Here, the record does not support a finding that Mr. Beard poses a risk of flight, given his ties to the community and his history of appearances in other proceedings with only minor issues at most. Therefore, the inquiry turns on whether, by clear and convincing evidence, the record establishes that there are conditions of release that will assure the safety of the community. In making this assessment, the Court considers each of the factors in Section 3142(g).
III.A. Nature and Circumstances of the Offense Charged
This factor considers whether the offense charged is a crime of violence, has a minor victim, or involves a controlled substance. 18 U.S.C. § 3142(g)(1). There is no dispute the offenses charged involve a controlled substance. This factor weighs in favor of detention.
III.B. Weight of the Evidence
This factor considers the likelihood the defendant will pose a risk of flight or danger to the community and is not a pretrial determination of guilt. Stone , 608 F.3d at 948. On appeal, the United States presented additional evidence not previously submitted to the Magistrate Judge regarding Mr. Beard's prior convictions for drug-related offenses and felonious assault and the extent of Mr. Beard's ongoing drug-and gang-related activities. The detective testified to Mr. Beard's gang-related conduct and represented that he affiliated himself with his local gang as recently as December 2020, shortly before his arrest. Additionally, the United States presented evidence that, at the time of the offense, Mr. Beard was on post-release control from a State conviction and on a bond on pending State charges. These facts tip the scale toward detention.
III.C. History and Characteristics of the Person
The history and characteristics of a defendant include "the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings." 18 U.S.C. § 3142(g)(3)(A). Additionally, they include whether the defendant was on probation or parole at the time he committed the offense. Id. at § 3142(g)(3)(B).
Mr. Beard showed he has many personal ties to the community throughout his lifelong residence in and around Lorain, Ohio. And the other considerations in Section 3142(g)(3)(B) generally weigh in his favor. But the Court must also consider whether he was on supervision at the time of the offense. Here, the record shows he was. At the time, the State had Mr. Beard on a term of post-release control from a prior conviction, and a State court had released Mr. Beard on bond. At best, these considerations under Section 3142(g) weigh equally.
III.D. Nature and Seriousness of the Danger Release Poses
Considering the record as a whole, the Court finds it likely that Mr. Beard will continue to engage in criminal conduct, including selling drugs. To be sure, the quantity of drugs in transactions involving Mr. Beard is not that high. Further, the record establishes that the criminal conduct in which he has typically engaged is non-violent and generally constitutes nuisance- or quality-of-life-type offenses. Accordingly, this case raises a difficult legal question regarding the meaning of the "danger" the statute references when directing the Court to consider the nature and seriousness of the danger release poses. 18 U.S.C. § 3142(g)(3)(B).
At one level, the term "dangerous" implies some risk of physical injury or harm. For example, one dictionary defines the term as meaning "involving possible injury, pain, harm, or loss" or "able or likely to inflict injury or harm." Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/dangerous (last visited Mar. 22, 2021). But the term is not strictly limited to such a meaning—harm need not be violent or even tangible. Indeed, "[t]he purchase and sale of narcotics is an inherently dangerous activity" and poses a danger to the community. United States v. Bethea , 763 F. Supp. 2d 50, 54 (D.D.C. 2011). For this reason, the Sixth Circuit "routinely affirms, on dangerousness grounds, the pre-trial detention of run-of-the-mill drug dealers, even without any indication that the defendant has engaged in violence." Stone , 608 F.3d at 947 n.6 (collecting cases).
Although these considerations raise some challenging legal questions, particularly given the liberty interest involved when Mr. Beard enjoys a presumption of innocence, the record shows that Mr. Beard is likely to continue to engage in criminal conduct. Though that conduct is likely to be non-violent and of a middling level of seriousness, it meets the legal definition of dangerousness that the Sixth Circuit would likely apply. In this respect, the statute comports with the rebuttable presumption Congress enacted for drug offenses.
RELEASE CONDITIONS AND BURDEN OF PROOF
Section 3142(c)(1)(B) provides that, if a judicial officer determines the pretrial release of a defendant will endanger the safety of the community, the court must use "the least restrictive further condition, or combination of conditions" to reasonably assure the safety of the community. The statute goes on to provide an illustrative list of the types of conditions that the court may use to effect this purpose. 18 U.S.C. § 3142(c)(1)(B)(i)–(xiv). Because Defendant has rebutted the presumption in favor of detention, some question remains how to read the evidentiary force the presumption retains under Section 3142(e)(3) together with the factors under Section 3142(g) in light of the directive of the Bail Reform Act in Section 3142(b) and (c) that defendants are to be released subject to the provisions of Section 3142(c)(1)(B) discussed above. And these statutory commands arise against the backdrop of the requirement that the United States carry its burden of persuasion by clear and convincing evidence.
In this case, the Court reluctantly determines that less restrictive conditions to ensure the safety of the community will not reasonably do so. In particular, the Court gave serious consideration to home incarceration with suspension of electronic communication privileges. Defendant has a place to live (with his grandmother), and such a placement would allow Mr. Beard to assist in his defense against the charges consistent with his strong liberty interest and the presumption of innocence. But the record establishes that (1) Mr. Beard has not complied with any other conditions of supervision, whether post-release control or pretrial release on bond in State court, and there is no reason to believe things will be different now; (2) limiting cell phone use, even if permissible, is not practicable because of the many sophisticated means for communicating electronically that make enforcing such a condition impractical, if not impossible—in the Court's view, such a condition would be necessary given Mr. Beard's use of cell phones to transact the controlled buys at issue; and (3) the record does establish some gang activity, albeit a fairly minor or low-level affiliation. Overall, the record as a whole leaves the Court with a firm belief that it is highly probable Mr. Beard will, if released, engage in criminal activity and pose a danger to the safety of the community.
CONCLUSION
Based on the record before the Court, and the evidentiary force the congressional presumption in favor of detention retains, the Court determines that no condition or combination of conditions will reasonably assure the safety of the community. Therefore, the Court orders the detention of Mr. Beard pending trial. In doing so, the Court recognizes that this is a close call on this record that carries serious consequences for Mr. Beard. For all the foregoing reasons, the Court REVOKES the order of the Magistrate Judge setting bond and ORDERS the detention of Rodric Beard pending trial.