Opinion
No. 03-40065-01-SAC.
July 27, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant Kenneth Wayne Poole's motion to review (Dk. 16 the order of detention pending trial issued by a magistrate judge in the Eastern District of Michigan. The court held a hearing on July 13, 2004, at which time both sides presented evidence and arguments. Having reviewed and considered all submitted matters, the court is ready to rule.
PROCEDURAL BACKGROUND
The original indictment in this case was filed on July 17, 2003, and an arrest warrant was issued the same day. The defendant was arrested in April of 2004 in the Eastern District of Michigan and appeared before United States Magistrate Judge Mona Majzoub. The magistrate judge entered an order of detention on April 8, 2004, that included the following findings by a preponderance of evidence as the written reasons for detention:
This defendant's past record of failing to appear to answer to charges, his arrests and convictions on a regular basis for drug activity (illegal) all constituting a history of criminal activity and allegations similar to the instant alleged offense. Defendant poses a risk of danger to the community and a risk of flight requiring that an order of detention be issued.
(Dk. 3, Order of Detention Pending Trial). Following the defendant's transfer from the Eastern District of Michigan to the District of Kansas, he appeared before the magistrate judge in Topeka, Kansas, on May 11, 2004. The defendant was remanded into custody pursuant to the detention order entered in Michigan. (Dk. 6). Almost two months later, the defendant now seeks review of the detention order.
STANDARD OF REVIEW
In United States v. Cisneros, 328 F.3d 610, 614 (10th Cir. 2003), the panel identified in the Bail Reform Act the "two avenues through which a release or detention order can be reconsidered prior to review on appeal by a court of appeals." The first way is a motion to reopen the detention hearing pursuant to 18 U.S.C. § 3142(f) that is filed with the same judicial officer who entered the initial order and that must be based on "new information" material to the release determination. Id. The second way is a motion for revocation pursuant to 18 U.S.C. § 3145(a) and (b) that is filed with the court having original jurisdiction of the offense and that requires the prior order to have been entered by a magistrate judge or someone other than the judge of the court having original jurisdiction, but that is not dependent upon new material information being available. Id. Based on the parties' representations of what happened before the magistrate judge in Michigan and later before Magistrate Judge Sebelius here in Kansas, the court is confident that § 3145(b), review of a detention order, is the appropriate basis for the defendant's motion here.
By statute, 18 U.S.C. § 3145(b), a defendant detained by a magistrate judge may seek review before the district court having original jurisdiction of the charged offense. This is a de novo review of the magistrate judge's order. United States v. Lutz, 207 F. Supp.2d 1247, 1251 (D. Kan. 2002) (and cases cited therein). The district court decides both the facts and the propriety of detention anew without deference to the magistrate judge's findings. Id. De novo review does not require a de novo evidentiary hearing. Id. The district court may elect to "start from scratch" and hear the relevant evidence, or it simply may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. Id. In its discretion, the district court may conduct evidentiary hearings if "necessary or desirable" whether or not new evidence is to be offered. United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990).
CONTROLLING LAW
Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., the court must order an accused's pretrial release, with or without conditions, unless it "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 community." See 18 U.S.C. § 3142(b),(c), and (e). The government must prove risk of flight by a preponderance of the evidence. United States v. Burks, 141 F. Supp.2d 1283, 1286 (D. Kan. 2001) (and cases cited therein). The government must prove dangerousness to any other person or the community by clear and convincing evidence. Id. In making these determinations, the court is to consider "the available information" on the following four factors: the nature and circumstances of the offense, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence; the history and characteristics of the person; and the nature and seriousness of the danger to any person or the community posed by a release on conditions. 18 U.S.C. § 3142(g).
The Bail Reform Act, specifically 18 U.S.C. § 3142(e), recognizes a rebuttable presumption of risk of flight or danger to the community upon a finding "that 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 by the Controlled Substances Act ( 21 U.S.C. § 801 et seq.) . . . or an offense under § 924(c), . . . of title 18 of the United States Code." A grand jury indictment charging such an offense is enough to trigger this presumption. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991); United States v. Walters, 89 F. Supp.2d 1217, 1220 (D. Kan. 2000). The presumption operates as follows:
Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.Stricklin, 932 F.2d at 1354-55 (citations omitted). The defendant properly concedes the rebuttable presumption applies here, as counts 1-4, 6, 7, and 10 charge drug offenses that carry maximum terms of imprisonment of ten years or more and count 9 charges a violation of 18 U.S.C. § 924(c), all of which trigger the rebuttable presumption. The defendant's initial "`burden of production . . . is to offer some credible evidence contrary to the statutory presumption.'" United States v. Walters, 89 F. Supp.2d at 1220 (quoting United States v. Miller, 625 F. Supp. 513, 519 (D. Kan. 1985)). Of course, the burden of proof remains with the government to show there is no condition or combination of conditions that would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community. United States v. Lutz, 207 F. Supp.2d at 1251.
ANALYSIS AND RULING
The court's ruling relies principally on the evidence admitted and arguments advanced at the hearing on review, as well as the pretrial services report prepared for the magistrate judge in Michigan. In his memorandum, the defendant objects that the magistrate judge erred by (1) finding that the defendant posed a danger to community based only on a preponderance of evidence standard; and (2) finding that the defendant posed a flight risk based largely on the defendant's failure to appear in several misdemeanor cases where notice had not been sent to the defendant's current residence. The magistrate judge's detention order reflects that she applied only a preponderance of evidence standard in finding that the defendant was not only a flight risk but also a danger to the community and third persons. As for the defendant's other argument, the district court will evaluate all of the evidence without deference to the magistrate judge's findings.
Nature and Circumstances of the Offense
The ten counts in the indictment charge the defendant with distributing cocaine base on six different occasions from May through October of 2002, with possessing with the intent to distribute larger amounts of cocaine base on two separate occasions in July and October of 2002, with possessing and carrying a firearm during and in relation to a drug trafficking offense in October of 2002, and with again possessing with the intent to distribute cocaine base in January of 2003. These charges evidence a clear and convincing pattern of frequent and continuous sales of cocaine base and a deep involvement in drug trafficking activity that would endanger a community. Nine of the counts charge narcotic violations, and the § 924(c) charge is considered a crime of violence. United States v. Burks, 141 F. Supp.2d at 1287 (and cases cited therein). In addition to the gun found by officers on October 12, 2002, resulting in § 924(c) charge, the confidential informant who completed the controlled purchase on September 25, 2002, told officers that during the transaction at the defendant's residence, the defendant had a handgun laying on the coffee table next to four small packages of cocaine base. This factor plainly favors detention.
Weight of the Evidence
The weight of the evidence against the defendant is quite substantial. Each of the distribution counts is based on a confidential informant's controlled purchase of cocaine base from the defendant on six separate occasions between May and September of 2002. In July, officers found 22.77 grams of cocaine base in the defendant's car. In October, officers responded to a domestic violence call at the defendant's residence. Officers were greeted by a woman who said she was the defendant's girlfriend and the victim of the defendant's battery and who later said that after she called the police the defendant had removed some drugs and a gun from the residence. Officers subsequently found in a neighbor's backyard a plate with drugs and a gun which the woman identified as the defendant's possessions which he had taken from the residence before the police arrived. The third possession with intent to distribute count involves the defendant's arrest in Wichita, Kansas, in January of 2003, following his purchase of cocaine base from a probable supplier. The defendant in a post- Miranda statement told officers that he had been selling cocaine base for the past twelve months and that he had made numerous trips to Wichita to purchase cocaine base. This factor weighs in favor of detention.
History and Characteristics of the Defendant
While the defendant appears to have resided in the Eastern District of Michigan most of his life, his employment history and his frequent moves show his lifestyle is anything but stable and probably best described as transient. He told pretrial services that he had used marijuana daily and cocaine on occasion but had stopped using all substances several months before his arrest. The urinalysis performed at the time of his arrest showed positive results for marijuana. Besides the arrest for domestic violence, the defendant on another occasion resisted arrest resulting in an altercation and the defendant trying to flee the scene.
At the time of his arrest, there were four outstanding warrants on the defendant in Michigan, three of which were bench warrants for the defendant's failure to appear. The defendant blames the bench warrants on notices not being sent to his current residences without acknowledging his responsibility to keep the courts informed of his current address and without offering any meaningful excuse for not fulfilling this responsibility. The defendant also argues that the court should not attach much significance to these prior instances of his neglect, because they involved mere misdemeanors. In government's exhibit one, an NCIC report shows that in August of 2002 the defendant was charged twice in Kansas with failure to appear on misdemeanor crimes. These charges were not mentioned during the hearing, but the defendant presumably would offer the same arguments in defense of his neglect. Whatever the defendant's excuses for and arguments in defense of his repeated failures to appear in criminal proceedings, the court remains convinced from these uncontested facts that either or both the defendant's transient lifestyle and his attitude toward the judicial system are such that he constitutes a flight risk as to warrant detention.
Nature and Seriousness of Danger to Any Other Person or the Community
The court believes the defendant's pattern of criminal conduct demonstrates a very real threat of continued involvement in drug trafficking and in the use of firearms in those illegal ventures. Ongoing drug trafficking presents a serious danger to the community. There is nothing in the record from which the court can find assurance that the defendant would abandon his drug trafficking activities and support himself and his family through lawful and gainful employment. This factor supports detention.
Conclusion
The defendant argues he has a large and supportive family in Michigan and proposes a release plan whereby he would live with his mother and would submit to supervision and/or more intensive monitoring as set by the court. The court, however, has little confidence in such a plan offering anything more than a roof over the defendant's head. Such a plan does not address the more important concerns of the danger the defendant poses to the community and others through his continued drug dealing and his risk of flight as evidenced in his attitude toward the judicial system. The court also notes from the record that shortly after his arrests on state court drug charges in Kansas the defendant saw fit to return to Michigan, and it took federal authorities nearly nine months to locate and arrest the defendant on the federal drug counts that were apparently based on the same offense conduct charged in the state cases. Whatever the reasons or the explanations, the court cannot help but infer that the defendant showed little desire to stay in Kansas to see the results of his drug arrests.
Based upon its de novo review of the record and evidence submitted, the court finds that a preponderance of the evidence shows there is a serious risk the defendant will flee and that clear and convincing evidence establishes there are no set of conditions of release which will protect the community from the danger of the defendant engaging in additional drug trafficking crimes. The defendant's proffered excuses for not appearing in the Michigan criminal proceedings that resulted in bench warrants were not credible evidence as to rebut the presumption of risk of flight or danger to the community. After careful consideration of all matters submitted at the hearing within the framework required by the Bail Reform Act, the court concludes that the government has carried its burden of proving that pretrial detention is warranted in this case.
IT IS THEREFORE ORDERED that the motion to review (Dk. 16) the detention order is granted insofar as the court has conducted its de novo review and is denied as to all relief requested therein;
IT IS FURTHER ORDERED that the defendant will be detained pending trial pursuant to this order and to the order of detention entered by the magistrate judge.