Opinion
Case No. 06-30070-01-DRH.
September 27, 2006
ORDER
In accordance with 18 U.S.C. § 3148, on September 27, 2006, defendant Walter C. Smith, III, represented by counsel appeared for a hearing on the government's motion to revoke the Court's May 30, 2006, order setting the conditions of his pretrial release and bond. (Doc. 22).
The Court notes that defendant Smith was specifically cautioned at the original detention hearing that if he violated any of the conditions of his release there was no doubt that his bond would be revoked. At the hearing the government proffered evidence that on two occasions Smith failed to call the On-Site Drug Testing program as required, and subsequently tested positive for cocaine. Therefore, the Court finds by clear and convincing evidence that Smith has violated the terms of his release and bond. ( See Doc. 11, ¶¶ (7)(I) and (q)). The Court further finds, for the reasons indicated below, that Smith has demonstrated that he is unlikely to abide by any additional condition(s) of release.
Statement of Reasons for the Detention
The Court orders the defendant's detention because it finds:
X By a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant as required.
X By clear and convincing evidence that no condition or combinations of conditions will reasonably assure the safety of any other person and the community.Finding of Fact
The Court's findings are based on the evidence which was presented in Court and that which was contained in the Pretrial Services Report, and includes the following:
X (1) Nature and circumstances of the offense charged:
X (a) The crime:
COUNT 1 :
Conspiracy to Distribute Cocaine Base ("Crack") 21 U.S.C. §§ 841(a)(1) and 846
Penalties:
Not less than 10 nor more than life imprisonment, a $4,000,000 fine, or both, and at least 5 years supervised release
COUNT 2 :
Possession with Intent to Distribute Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not less than 5 nor more that 40 years imprisonment, a $2,000,000 fine, or both, and at least 4 years supervised release
COUNT 3 :
Possession with Intent to Distribute Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not less than 5 nor more that 40 years imprisonment, a $2,000,000 fine, or both, and at least 4 years supervised release
COUNT 4 :
Distribution of Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not more than 20 years imprisonment, a $1,000,000 fine, or both, and at least 3 years supervised release
COUNT 5:
Distribution of Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not more than 20 years imprisonment, a $1,000,000 fine, or both, and at least 3 years supervised release
COUNT 6:
Distribution of Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not more than 20 years imprisonment, a $1,000,000 fine, or both, and at least 3 years supervised release
COUNT 7:
Distribution of Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not more than 20 years imprisonment, a $1,000,000 fine, or both, and at least 3 years supervised release
COUNT 8:
Possession with Intent to Distribute Cocaine Base ("Crack") 21 U.S.C. § 841(a)(1)
Penalties:
Not less than 5 nor more that 40 years imprisonment, a $2,000,000 fine, or both, and at least 4 years supervised release
____ (b) The offense is a crime of violence.
____ (c) The offense is a federal crime of terrorism.
____ (d) The offense involves a minor victim.
____ (e) The offense involves a controlled substance, firearm, explosive, or destructive device.
X (f) The offense involves a narcotic drug.
X (g) The offense involves a large amount of controlled substance, to wit: in excess of 50 grams of Cocaine Base ("Crack")
X (2) The weight of the evidence against the defendant is high.
X (3) The history and characteristics of the defendant including:
(a) General Factors:
____ The defendant appears to have a mental condition which may affect whether the defendant will appear.
____ The defendant has no family ties in the area.
____ The defendant has no steady employment.
X The defendant has no substantial financial resources.
____The defendant is not a long time resident of the community.
____ The defendant does not have any significant community ties.
____ Past conduct of the defendant: __________________________________ _________________________________________________________________
X The defendant has a history relating to drug abuse.
____ The defendant has a history relating to alcohol abuse.
____ The defendant has a significant prior criminal record.
____ The defendant has a prior record of failing to appear at court proceedings.
(b) Whether the defendant was on probation, parole, or release by a court:
At the time of the current offense, the defendant was on:
____ Probation
____ Parole
____ Release pending trial, sentencing, appeal or completion of sentence
(c) Other Factors:
____ The defendant is an illegal alien and is subject to deportation.
____ The defendant is a legal alien and will be subject to deportation if convicted.
____ Other: ___________________________________________ ______________________________________________________
____ (4) The nature and seriousness of the danger in releasing the defendant include:
The aforementioned failure to comply with terms of release ______________________________________________________ ______________________________________________________
X (5) Rebuttable Presumptions:
The Court finds the defendant is subject to and has not rebutted the rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, as set forth in 18 U.S.C. § 3142(e). In determining that the defendant is subject to the rebuttable presumption(s) set forth in 18 U.S.C. § 3142(e), the Court finds:
X (a) Probable Cause to believe that the defendant committed a controlled substance offense for which a maximum term of imprisonment of 10 years or more is prescribed under Title 21 or 46; or
____ (b) Probable cause to believe that the defendant committed an offense under 18 U.S.C. § 924(c); or
X (c) The defendant is charged with:
____ (1) A crime of violence; or
____ (2) A crime for which the maximum penalty is either death or life imprisonment; or
X (3) A drug offense for which the maximum penalty is 10 years imprisonment or more; or
(4) Any felony if the defendant has been convicted of two or more offenses described in paragraphs (1) through
(3) above (or the state or local equivalent), or any combination of such offenses;
and the defendant has a prior conviction for one of the crimes described in subparagraphs (1) through (3) above, and said conviction, or the release from imprisonment therefor, is less than five years old and was committed while the defendant was on pretrial release.
The Court, in finding that there are no conditions or combination of conditions which reasonably will assure the defendant's appearance and the safety of any other person and the community has considered and rejected alternatives. Among the alternatives considered, the Court has rejected house arrest and a daily reporting scheme. In rejecting these alternatives, the Court notes the gravity of the offense and the substantial penalties which may possibly be imposed. In addition, the Court notes that this judicial district does not have the equipment to provide for home detention with electronic monitoring.
IT IS THEREFORE ORDERED that for the aforementioned reasons, the government's motion to revoke defendant Walter C. Smith, III's pretrial release and bond (Doc. 22) is GRANTED in accordance with 18 U.S.C. §§ 3148(b)(1)(B) and 3148(b)(2)(B).
IT IS SO ORDERED.