Opinion
NO. 1:07-CV-00093.
August 23, 2007
OPINION AND ORDER
This matter is before the Court on Defendant's Motion for Review of Detention Order (doc. 41), and the Response of the United States in Opposition (doc. 44). The Court held a hearing on the motion on August 22, 2007.
Defendant argued in his motion and at the hearing that the Court should vacate the detention order issued by the Magistrate Judge, as the Pretrial Services Office has recommended release with certain enumerated conditions (doc. 41). Defendant argues he has substantial ties with the jurisdiction, as his entire family resides in Cincinnati, and he has a successful record company here (Id.). Defendant argues he is not a threat to the safety of the community, as the underlying offense was non-violent, and he characterizes it as a stupid mistake that he will not repeat (Id.). Defendant further argues that his co-Defendants in the case, the Munoz brothers, have less of a connection to this jurisdiction, and were allowed to go free on O.R. bonds (Id.).
The government responds that the statutory presumption in 18 U.S.C. § 3142(e) was triggered in this case such that Defendant should be detained, as there is probable cause that Defendant's offense involves a potential maximum term of ten years or more under the Controlled Substances Act, 21 U.S.C. § 801 et seq. (doc. 44). The government argues the Court should give deference to the Magistrate Judge's pretrial detention order unless the Court should conclude its findings of fact are clearly erroneous or its conclusions are contrary to law (Id. citing U.S. v. Harris, 732 F.Supp. 1027 (N.D. Cal. 1990)). At the hearing, the United States further argued that Defendant can be differentiated from the Munoz co-Defendants, as the Munoz brothers are sixty-five and sixty-eight years old, have different medical conditions, and played a lesser role in the offense.
When the Court acts on a Motion to revoke or amend a Magistrate Judge's detention order, the Court acts de novo, and must make an independent determination of the proper pretrial detention or conditions for release. United States v. Rueben, 974 F.2d 580, 585 (5th Cir. 1992), United States v. Williams, 948 F.Supp. 692, 693 (E.D. Mich. 1996). After reviewing the record de novo, the Court concludes that revocation of pretrial detention is correct.
Title 18 U.S.C. § 3142(e) provides that a person shall be detained pending trial if after a hearing, the judicial officer finds that no condition or set of conditions will reasonably assure the person's appearance as required and the safety of any other individual and the community. Section 3142(e) further provides that if the judicial officer finds there is probable cause to believe the person has committed a criminal offense for which the maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. §§ 801 et seq., then there is a rebuttable presumption in favor of pretrial detention. Defendant does not dispute that the rebuttable presumption in 18 U.S.C. § 3142(e) applies to this case, as a result of the July 11, 2007 indictment charging him and his co-Defendants with conspiring to distribute in excess of five kilograms of cocaine. The indictment is sufficient to support a finding of probable cause triggering the Section 3142(e) rebuttable presumption.United States v. Lattner, 23 Fed Appx. 363 (2001).
The factors to be considered in determining whether to detain a defendant pending trial are set forth in 18 U.S.C. § 3142(g). They include: (1) the nature and circumstances of the offense charged and whether the offense is a crime involving a narcotic drug; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant, including his 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, and criminal history; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant's pretrial release. Once the presumption of pretrial detention is raised pursuant to 18 U.S.C. § 3142(e), Defendant bears the burden of producing probative, credible evidence to rebut the presumption and support his contention that he will appear in federal court when required and he does not pose a danger to community safety. The Section 3142(e) presumption imposes on Defendant Garnett only the burden of production of proof. It does not also shift to him the ultimate burden of persuasion concerning the risk of flight and danger to community safety. The government at all times retains the burden of persuasion. Lattner, 23 Fed. Appx. 363, 2001 WL 1450802; United States v. Travis, 129 F.3d 1266 (Table, text at 1997 U.S. App. LEXIS 30149, 1997 WL 678524 (6th Cir. Oct. 28, 1997)); Rueben, 974 F.2d at 586; United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990); Williams, 948 F. Supp. at 694. "The mere presentation of some evidence by a defendant contrary to the presumption in 18 U.S.C. § 3142(e) does not completely rebut the presumption. Rueben, 974 F.2d at 586, United States v. Hare, 873 F.2d 796, 798 (5th Cir. 1989). Upon the defendant's introduction of evidence in support of his release, the statutory presumption in favor of detention does not vanish. The presumption retains evidentiary weight and remains as one factor to be considered.
The government has the ultimate burden of persuasion by clear and convincing proof that detention is necessary because no condition or combination of conditions will reasonably assure the safety of the community. 18 U.S.C. § 3142(f). With regard to the risk of flight, the government must prove by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the defendant's appearance at trial.United States v. Yopp, 991 F.2d 797 (Table, text at 1993 U.S. App. LEXIS 8429, 1993 WL 106851 (6th Cir. April 9, 1993));Quartermaine, 913 F.2d at 916-17; Williams, 948 F. Supp. at 694.
Having reviewed this matter, the Court finds the factors to be considered under 18 U.S.C. § 3142(g) militate toward the finding that Defendant's appearance can be reasonably assured at trial, and that the safety of the community is not at risk with the imposition of a set of conditions tailored to this case. The Court is persuaded Defendant has proffered testimony rebutting the presumption in favor of detention.
A complete review of Defendant's record shows that although Defendant has had contact with the Court system, he has no record of failing to appear for court proceedings, and any convictions are more than ten years old. The Court further takes into account the evidence of Defendant's business interests in Cincinnati, and his family connections in the community. Such evidence indicates Defendant meets his burden of proof that he will appear at trial and will not pose any danger to the community, subject to restrictions. If Defendant is able to post a substantial cash bond, then the Court is willing to release Defendant under the following conditions:
(A) Defendant is to maintain his residence with his Aunt, Ms. Mona Dickson, at 6618 Sampson Lane, Cincinnati, Ohio, 45236, and shall be subject to electronic monitoring. Defendant shall remain restricted to home confinement at all times except for medical needs or treatment, religious services, and court appearances, all pre-approved by the Pretrial Services Officer.
(B) Defendant shall pay all costs associated with electronic monitoring.
(C) Under no circumstance shall Defendant leave the Southern District of Ohio.
(D) Defendant is prohibited from obtaining a new passport.
(E) Defendant is to report daily as directed by Pretrial Services.
(F) Defendant is to refrain from the use of alcohol, and any use or possession of a narcotic drug and other controlled substance unless prescribed by a licensed medical practitioner.
(G) Defendant shall submit to drug testing and treatment under the direction of Pretrial Services.
(H) Defendant shall not commit any local, state, or federal crime while on bond.
(I) Defendant shall execute an appearance bond, in the amount of fifteen thousand dollars ($15,000.00), in cash, to forfeit upon failure to appear.
(J) A violation of any condition of Defendant's bond may result in forfeiture of bond, and cause a bench warrant for his arrest to issue.
(K) Defendant shall sign a Conditions of Release at the Clerk's Office, in which he shall acknowledge that he has read the conditions of his bond and he fully understands the possible penalties for violation of any such conditions.
SO ORDERED.