Opinion
Case No.: 3:19-cr-113/MCR
2019-12-02
UNITED STATES of America v. Kadeem INGRAM a.k.a. "Cody"
Michelle Kathleen Daffin, Northern District Of Florida, Panama City, FL, for United States of America.
Michelle Kathleen Daffin, Northern District Of Florida, Panama City, FL, for United States of America.
DECISION AND ORDER
Michael J. Frank, United States Magistrate Judge
On November 26, 2019, this court conducted a detention hearing pursuant to the Bail Reform Act of 1984, 18 U.S.C. § 3141, et seq. Based upon the information contained in the Pretrial Services Report, the evidence presented at the hearing, and the arguments of counsel, this court finds that Defendant should be detained pending trial because there is no condition or combination of conditions that reasonably would assure his appearance at trial and the safety of the community.
I —Eligibility for Detention
The " ‘Government has a substantial interest in ensuring that persons accused of crimes are available for trials.’ " Maryland v. King , 569 U.S. 435, 452-53, 133 S. Ct. 1958, 1972-73, 186 L.Ed.2d 1 (2013) (quoting Bell v. Wolfish , 441 U.S. 520, 534, 99 S. Ct. 1861, 1871, 60 L.Ed.2d 447 (1979) ). To safeguard victims, witnesses, and the community, and to ensure that defendants are present at their trials, defendants "legitimately may be incarcerated by the Government prior to a determination of their guilt or innocence ...." Bell , 441 U.S. at 523, 99 S. Ct. at 1865. To detain a defendant prior to trial, however, "the Government must comply with constitutional requirements ... and any applicable statutory provisions." Bell , 441 U.S. at 534 n.15, 99 S. Ct. at 1871 n.15.
In this case, under the Bail Reform Act of 1984 as amended, the Defendant is eligible for detention because he has been charged via an indictment with an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act ( 21 U.S.C. § 801 et seq. ). Specifically, a grand jury charged Defendant with four qualifying offenses: (1) conspiracy to distribute 500 grams or more of cocaine and 28 grams or more of cocaine base, in violation of 21 U.S.C. § 846 ; (2) two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ; and (3) possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii).
II —Standard
"The Bail Reform Act of 1984 provides a federal court with two choices when dealing with a criminal defendant who has been ‘charged with an offense’ and is awaiting trial ...." Reno v. Koray , 515 U.S. 50, 57, 115 S. Ct. 2021, 2025, 132 L.Ed.2d 46 (1995). A court may either release a defendant on appropriate conditions or detain the defendant. Id. In determining whether detention is appropriate, courts must keep in mind that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno , 481 U.S. 739, 755, 107 S. Ct. 2095, 2105, 95 L.Ed.2d 697 (1987). The policy of the Bail Reform Act of 1984 "is to permit release under the least restrictive condition compatible with assuring the future appearance of the defendant" and the safety of the community. United States v. Price , 773 F.2d 1526, 1528 (11th Cir. 1985) (per curiam).
"A criminal defendant must be released before trial on personal recognizance or upon execution of an unsecured bond, unless the court determines that release will not reasonably ensure his appearance or will endanger the safety of others." Taylor v. Pekerol , 760 F. App'x 647, 653 (11th Cir. 2019) (citing 18 U.S.C. § 3142(b) ). On the other hand, a defendant must be detained pending trial if he presents a serious risk of flight or poses a danger to another person or members of the community. Salerno , 481 U.S. at 749, 107 S. Ct. at 2102 ; see United States v. Montalvo-Murillo , 495 U.S. 711, 717, 110 S. Ct. 2072, 2077, 109 L.Ed.2d 720 (1990) (noting that the Bail Reform Act "directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight"). Before detaining a defendant pending trial, however, the government must establish by a preponderance of the evidence that a defendant poses a serious risk of flight, or show by clear and convincing evidence that he is a danger to another person or the community. See Salerno , 481 U.S. at 750, 107 S. Ct. at 2103 ; United States v. Quartermaine , 913 F.2d 910, 917 (11th Cir. 1990) ; United States v. King , 849 F.2d 485, 488-89 (11th Cir. 1988) ; United States v. Medina , 775 F.2d 1398, 1402 (11th Cir. 1985).
It is important to note that "danger to the community" "was not meant to refer only to the risk of physical violence." United States v. Tortora , 922 F.2d 880, 884 (1st Cir. 1990). "The concept of safety of the community under § 3142(e) is not limited to the danger of physical violence, but rather ‘refers to the danger that the defendant might engage in criminal activity to the detriment of the community.’ " United States v. Boy , 322 F. App'x 598, 600 (10th Cir. 2009) (quoting United States v. Cook , 880 F.2d 1158, 1161 (10th Cir. 1989) ); United States v. Abdullahu , 488 F. Supp. 2d 433, 438-39 (D. N.J. 2007) (noting that "danger to the community does not only include physical harm or violent behavior"); United States v. Gotti , 219 F. Supp. 2d 296, 298 (E.D.N.Y. 2002) ("Danger to the community is not limited to violent crimes; it includes crimes that would harm the community."). For example, "the harm to society caused by narcotic trafficking is encompassed within Congress' definition of ‘danger.’ " United States v. Leon , 766 F.2d 77, 81 (2d Cir. 1985) ; see United States v. Hare , 873 F.2d 796, 798 (5th Cir. 1989) (stating that the "risk of continued narcotics trafficking on bail constitutes a risk to the community"); United States v. Stone , 608 F.3d 939, 947 n.6 (6th Cir. 2010) (noting that "drug trafficking is a serious offense that, in itself, poses a danger to the community"). The probability that a released defendant will continue to engage in narcotics trafficking constitutes a risk to the community. United States v. Rueben , 974 F.2d 580, 586 (5th Cir. 1992) ; United States v. Majors , 932 F. Supp. 853, 857 (E.D. Tex. 1996) ("The very nature of drug offenses themselves constitutes a non-physical danger to the community.").
Clear and convincing evidence exists when the evidence induces "an abiding conviction that the truth of its factual contentions are ‘highly probable.’ " Colorado v. New Mexico , 467 U.S. 310, 316, 104 S. Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). Accordingly, to show by clear and convincing evidence that a defendant poses a danger to the community, the United States need not prove that there is a 100% chance that a defendant will commit harmful acts. Rather, the concept of danger entails probability of harm and, thus, demonstrating a substantial risk of harm is sufficient. United States v. Shea , 749 F. Supp. 1162, 1167 (D. Mass. 1990) ("The term ‘danger’ invokes a concept of probability (commonly referred to as risk of harm) rather than certainty of harm.").
As noted above, if the government satisfies its burden of demonstrating dangerousness or risk of flight, the Bail Reform Act requires the detention of a defendant. Montalvo-Murillo , 495 U.S. at 717, 110 S. Ct. at 2077 ("The Act ... requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight."); United States v. Smith , 79 F.3d 1208, 1209 (D.C. Cir. 1996) ("The Bail Reform Act requires that a defendant be detained prior to trial if there is clear and convincing evidence that no conditions placed upon his release would reasonably assure the safety of the community."). A defendant may be detained based either on the risk of nonappearance or his dangerousness; the government is not required to establish both. King , 849 F.2d at 488-89 ; see United States v. Apker , 964 F.2d 742, 743 (8th Cir. 1992) (per curiam); United States v. Dillon , 938 F.2d 1412, 1417 (1st Cir. 1991) ("Because we conclude that detention is required on risk of flight grounds, we need not address the issue whether appellant also presents a danger to the community."); Rueben , 974 F.2d at 586 ("For pretrial detention to be imposed on a defendant, the lack of reasonable assurance of either the defendant's appearance, or the safety of others or the community, is sufficient; both are not required.").
III —The Presumption of Risk of Flight and Danger to the Community
Because Defendant is charged in an indictment with four offenses "for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act," there is a rebuttable presumption that no condition or combination of conditions will reasonably assure Defendant's appearance at trial and the safety of the community. See 18 U.S.C. § 3142(e)(3)(A). In "order to trigger section 3142(e)'s rebuttable presumption, the government need not make a showing of probable cause independent of the grand jury's indictment." King , 849 F.2d at 487-88 ; United States v. Vargas , 804 F.2d 157, 163 (1st Cir. 1986) ; United States v. Hurtado , 779 F.2d 1467, 1479 (11th Cir. 1985). That is, "an indictment returned by a duly constituted grand jury conclusively establishes the existence of probable cause for the purpose of triggering the rebuttable presumptions set forth in § 3142(e)." United States v. Contreras , 776 F.2d 51, 55 (2d Cir. 1985) ; see Quartermaine , 913 F.2d at 916 ("A grand jury indictment provides the probable cause required by the statute to trigger the presumption.").
In light of the statutory presumption, the Defendant bears the burden of producing evidence to rebut the presumption. See United States v. Stricklin , 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). "Once the presumption arises, the ball is in the defendant's court, ... and it is incumbent on the defendant to come forward with some evidence to rebut the presumption." Cook , 880 F.2d at 1162 ; see Quartermaine , 913 F.2d at 916 ("Once the statutory presumptions are raised, the defendant carries the burden of production to come forward with evidence to rebut the presumptions."). Specifically, the defendant has the burden of producing evidence demonstrating that he is not a risk of flight and he is not a danger to another person or the community. Quartermaine , 913 F.2d at 916 ; Hurtado , 779 F.2d at 1479.
"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 1355 ; Quartermaine , 913 F.2d at 916 ; King , 849 F.2d at 488. "The presumption remains as a factor because it is not simply an evidentiary tool designed for the courts. Instead, the presumption reflects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial." Stone , 608 F.3d at 945 ; United States v. Dominguez , 783 F.2d 702, 707 (7th Cir. 1986) (noting that the presumption of dangerousness "represents Congressional findings that certain offenders ... are likely to continue to engage in criminal conduct undeterred either by the pendency of charges against them or by the imposition of monetary bond or other release conditions"). Nevertheless, "the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government." Stricklin , 932 F.2d at 1354-55 ; Quartermaine , 913 F.2d at 916 ("The defendant's obligation to come forward with evidence does not shift to the defendant the government's burden of persuasion."); King , 849 F.2d at 488 (noting that the "statutory presumption imposes only the burden of production" on the defendant "and does not shift the burden of persuasion concerning risk of flight and dangerousness").
In determining whether there are conditions of release that reasonably might assure the appearance of the Defendant at trial and the safety of the community, courts must consider:
(1) "the nature and circumstances of the offense charged, including whether the offense is a crime of violence ... or involves ... a controlled substance";
(2) "the weight of the evidence against the person";
(3) "the history and characteristics of the person," including "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"; and
(4) "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." 18 U.S.C. § 3142(g).
IV —Findings of Fact and Statement of Reasons for Detention
The following factors support the presumption, and this court's finding, that no condition or combination of conditions reasonably would assure Defendant's appearance at trial and the safety of the community:
A. NATURE AND CIRCUMSTANCES OF THE OFFENSES CHARGED
As noted above, the government charged Defendant with participating in a narcotics distribution conspiracy and substantive narcotics-distribution offenses between January 1, 2019 and July 13, 2019. At the detention hearing, the government also proffered that Defendant was the leader of the narcotics-trafficking conspiracy.
The possession, use, and distribution of illegal drugs represent "one of the greatest problems affecting the health and welfare of our population." Treasury Employees v. Von Raab , 489 U.S. 656, 668, 109 S. Ct. 1384, 1392, 103 L.Ed.2d 685 (1989). Drug distribution causes "grave harm to society." Harmelin v. Michigan , 501 U.S. 957, 1002, 111 S. Ct. 2680, 2706, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part). Thus, the substantial risk that Defendant would engage in drug trafficking if released constitutes a substantial danger to the community. Cook , 880 F.2d at 1161 ; United States v. Strong , 775 F.2d 504, 506-07 (3d Cir. 1985) (noting that in the Bail Reform Act, Congress equated drug trafficking with danger to the community).
Indeed, a "seller of addictive drugs may inflict greater bodily harm upon members of society than the person who commits a single assault." Rummel v. Estelle , 445 U.S. 263, 296 n.12, 100 S. Ct. 1133, 1150 n.12, 63 L.Ed.2d 382 (1980) (Powell, J., dissenting). Therefore, "an indictment for a drug trafficking offense is strong evidence that the defendant is a risk to the community." United States v. Allen , 891 F. Supp. 594, 599 (S.D. Fla. 1995). Furthermore, studies "demonstrate a direct nexus between illegal drugs and crimes of violence." Harmelin , 501 U.S. at 1003, 111 S. Ct. at 2706 (Kennedy, J., concurring). Additionally "serious drug offenders pose unusual risks of flight." United States v. Martir , 782 F.2d 1141, 1145 (2d Cir. 1986) ; see King , 849 F.2d at 488 (noting that "those charged with narcotics offenses often pose an especially high risk of flight").
Defendant's affiliation with and leadership of a conspiracy also is relevant to an analysis of the risk of danger to the community and Defendant's risk of flight. United States v. Marino , 396 F. App'x 728, 730 (2d Cir. 2010) (holding that the defendant's leadership role in a criminal enterprise was one factor that provided "clear and convincing evidence of the present danger he posed"). Leaders of criminal organizations pose a greater danger to the community. Through concerted activity, they can act through co-conspirators. See United States v. Feola , 420 U.S. 671, 693, 95 S. Ct. 1255, 1268, 43 L.Ed.2d 541 (1975) (noting the need to protect "society from the dangers of concerted criminal activity"); United States v. Moran , 984 F.2d 1299, 1302-03 (1st Cir. 1993) ("A multiplicity of actors united to accomplish the same crime is deemed to present a special set of dangers, either that the criminal end will be achieved, ... or that the conspiracy will carry over to new crimes, ... or both ...."). Leaders of criminal conspiracies often can command the commission of crimes—particularly narcotics trafficking—without necessitating their direct participation in criminal transactions. See Shea , 749 F. Supp. at 1169, 1170 (holding that evidence of a "defendant's leadership role is relevant in evaluating the nature of the charges ... and the seriousness of the danger that his release would pose," and that it "simply is not possible to fashion and enforce conditions sufficient to reasonably assure that" the leader of a narcotics distribution organization would not supervise his associates in narcotics distribution). "[W]here there is a strong possibility that a person will commit additional crimes if released, the need to protect the community becomes sufficiently compelling that detention is, on balance, appropriate." United States v. Colombo , 777 F.2d 96, 100 (2d Cir. 1985). An alleged leadership role also indicates a greater commitment to criminal activity and a reduced inhibition to committing criminal acts. Leaders generally also enjoy the ability to rely on their comrades in crime to assist them in fleeing from justice, and organizers and leaders of criminal activity have greater incentive to flee insofar as they generally face stiffer punishments for their leadership role. See U.S.S.G. § 3B1.1 (authorizing an increase in a defendant's offense level for an aggravating role in the criminal activity). A "defendant facing a potentially lengthy prison sentence possesses a strong motive to flee." United States v. Khusanov , 731 F. App'x 19, 21 (2d Cir. 2018) ; Allen , 891 F. Supp. at 598 (noting that the probability of facing a lengthy sentence upon conviction provides a defendant "with a strong incentive to flee").
Accordingly, the nature and circumstances of the charged offenses indicates that no condition or combination of conditions reasonably would assure Defendant's appearance at trial or the safety of the community.
B. THE WEIGHT OF THE EVIDENCE AGAINST THE DEFENDANT
This court also must consider the weight of the evidence against the Defendant. Dominguez , 783 F.2d at 706. This factor primarily concerns "the weight of the evidence of dangerousness" or risk of flight, and not necessarily "the weight of the evidence of the defendant's guilt," although these concepts often will be related. Stone , 608 F.3d at 948 ; see United States v. Berkun , 392 F. App'x 901, 903 (2d Cir. 2010) (noting that when "the evidence of guilt is strong, it provides" a defendant "with an incentive to flee").
At the detention hearing, the government proffered some of the evidence that it possesses and likely will present at the Defendant's trial. This evidence includes:
"The rules concerning the admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at" a detention hearing. 18 U.S.C. § 3142(f). The government offered to have an agent of the Drug Enforcement Administration testify, but Defendant's attorney indicated that he had no objection to the government merely proffering the evidence that it would elicit on direction examination of the agent.
• Statements from law enforcement agents that allegedly observed Defendant conducting multiple narcotics transactions;
• Statements from co-conspirators indicating that Defendant is a narcotics distributor and the leader of a conspiracy to distribute narcotics;
• Statements from co-conspirators that Defendant and his co-conspirators converted powder cocaine into cocaine base;
• Over 100 recordings of telephone calls (obtained via court-authorized interceptions) involving Defendant relating to narcotics trafficking;
• Physical evidence recovered from a search of Defendant's primary residence, including approximately eight firearms, drug paraphernalia, a
Defendant claims that the firearms belong to his father—Kenneth Ingram. The federal grand jury that indicted Defendant also charged Defendant's father with participating in Defendant's narcotics-distribution conspiracy. Thus, even if Defendant's father owned the firearms, they were available for use by Defendant and at least one alleged co-conspirator (his father), including for use in narcotics distribution and to protect any proceeds. "Firearms are known ‘tools of the trade’ of narcotics dealing because of the dangers inherent in that line of work." See United States v. Simon , 767 F.2d 524, 527 (8th Cir. 1985) ; see United States v. Coslet , 987 F.2d 1493, 1495 (10th Cir. 1993) ("[G]uns are a ubiquitous part of the drug trade."). Congress has recognized that drugs and guns are "a dangerous combination." Muscarello v. United States , 524 U.S. 125, 132, 118 S. Ct. 1911, 1916, 141 L.Ed.2d 111 (1998).
press commonly used in the production of cocaine base, scales which could be used for weighing quantities of cocaine, and bags commonly used in packing narcotics for distribution;
• Evidence of a pattern of narcotics distribution activity, insofar as Defendant was arrested on May 29, 2019, in a vehicle in which officers also found less than 20 grams of marijuana and more than 28 grams of cocaine;
• Evidence directly tying Defendant to transporting a distribution quantity of cocaine insofar as Defendant was arrested on July 13, 2019, in a vehicle in which officers also found 1.715 kilograms of cocaine and $4,003 in U.S. currency; and
• Statements from an alleged co-conspirator that Defendant conducted a drug transaction in the presence of one of Defendant's minor sons.
The weight of the evidence, therefore, is substantial. Beyond demonstrating his danger to the community, the weight of the evidence also suggests that Defendant poses a risk of flight, because a defendant facing overwhelming evidence has a greater incentive to flee than a defendant facing a weaker case. See United States v. Al-Arian , 280 F. Supp. 2d 1345, 1358 (M.D. Fla. 2003) (noting that a defendant has incentive to flee commensurate with the strength of the prosecution's case, especially if he is facing a substantial sentence).
C. THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT
The history and characteristics of the Defendant also suggest that he poses a risk of danger to other persons and the community and a risk of flight.
1. Criminal History Involving a Sexual Offense with a Minor Victim
Defendant's criminal history suggests that he poses a danger to other persons. Specifically, an arrest report from Walton County, Florida, indicates that in 2008, Defendant entered a residence without permission while the victim—a girl who was between the age of 12 and 16 years—was babysitting her younger siblings. Defendant refused to leave until the victim "did something" with him. Defendant pushed the victim on to a bed and held up her legs. He began to undress and placed his thumb against the opening of the victim's vagina. He then performed a sex act on the minor victim. Defendant later pleaded nolo contendere to the charge of lewd and lascivious behavior with a victim between the age of 12 and 16 years. The Florida court sentenced Defendant to probation for six years.
"Child sex crimes are among the most egregious and despicable of societal and criminal offenses." United States v. Sarras , 575 F.3d 1191, 1220 (11th Cir. 2009). The harm caused by the sexual abuse of children is substantial and long-lasting. United States v. Mozie , 752 F.3d 1271, 1289 (11th Cir. 2014), superseded by statute , 18 U.S.C. § 1591, as recognized in United States v. Whyte , 928 F.3d 1317, 1322 (11th Cir. 2019) ("Sexual crimes against minors cause substantial and long-lasting harm ...."). In "cases involving sexual crimes against children, courts have repeatedly recognized a substantial risk that physical force will be used to ensure compliance." Chery v. Ashcroft , 347 F.3d 404, 409 (2d Cir. 2003). "A child has very few, if any, resources to deter the use of physical force by an adult intent on touching the child. In such circumstances, there is a significant likelihood that physical force may be used to perpetrate the crime." United States v. Velazquez-Overa , 100 F.3d 418, 422 (5th Cir. 1996).
Society has a "strong interest in preventing the sexual exploitation of children." United States v. Stokes , 726 F.3d 880, 893 (7th Cir. 2013) ; New York v. Ferber , 458 U.S. 747, 757, 763, 102 S. Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982) (noting that the "prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance"); United States v. Cobler , 748 F.3d 570, 580 (4th Cir. 2014) (same). This court also must take into consideration the fact that children are extremely vulnerable to sexual abuse. Thompson v. Barr , 922 F.3d 528, 533 (4th Cir. 2019) ("Sexual abuse of children always involves preying on the vulnerable ...."); United States v. Hughes , 632 F.3d 956, 962 (6th Cir. 2011) (noting the special vulnerabilities of children). "Children in particular—because of their naiveté, their dependence on adults, and their inability to understand, flee, or resist such advances—are vulnerable to adults who seek to take advantage of them sexually." Nicanor-Romero v. Mukasey , 523 F.3d 992, 1013 (9th Cir. 2008) (Bybee, J., dissenting).
Defendant's commission of a sex offense against a child, therefore, also suggests that the Defendant poses an increased risk of harm to other persons and the community.
2. Commission of Multiple Crimes While Released on Bail
Between January and mid-July 2019, Defendant was on pre-trial release for a narcotics-distribution offense in Walton County, Florida after having posted a bond. Despite being released on bail, according to the indictment, from January to mid-July 2019, Defendant was the leader of his conspiracy to distribute cocaine and cocaine base. Furthermore, as noted above, on July 13, 2019, the Walton County Sheriff's Office arrested Defendant in a vehicle in which law enforcement agents found 1.715 kilograms of cocaine and $4,003 in U.S. currency.
Defendant's alleged commission of multiple narcotics offenses after the Florida court released him on bail suggests that, were this court to release the Defendant and impose terms of supervision that would include not committing another offense, the Defendant would violate that condition. See United States v. Odegbaro , 655 F. App'x 630, 633 (10th Cir. 2016) (holding that the district court did not err in detaining a defendant who previously committed crimes while on probation); United States v. Wray , 980 F. Supp. 534, 535 (D.D.C. 1997) (holding that the defendant should be detained because, among other things, he committed crimes while on parole, which indicated that it was "highly unlikely that he would comply with the conditions to be imposed if he were released"). The fact that Defendant allegedly committed additional offenses "while other charges are pending inevitably leads to the conclusion that a defendant places his own self-interests above that of the community." United States v. Barnett , No. 5:03-CR-243, 2003 WL 22143710, at *12 (N.D.N.Y. Sept. 17, 2003). Accordingly, Defendant's commission of multiple narcotics offenses while on pretrial release strongly indicates that Defendant would disregard an order by this court not to commit additional crimes, and therefore, he poses a danger to the community and a risk of flight.
3. A Pattern of Narcotics Distribution Activity
As noted above in the discussion of the weight of the evidence, on May 29, 2019, the Walton County Sheriff's Office arrested defendant when it found Defendant in a vehicle with less than 20 grams of marijuana and more than 28 grams of cocaine. The State of Florida then charged Defendant with possession with intent to sell a controlled substance. On October 14, 2019, the State elected to dismiss these charges because the federal government had initiated the current prosecution of Defendant. Nevertheless, this court may consider prior arrests or charges brought against a defendant, even when those actions did not result in a conviction. See United States v. Vorrice , 277 F. App'x 762, 764 (10th Cir. 2008) ; United States v. Norris , 188 F. App'x 822, 830 (11th Cir. 2006) ; United States v. Jackson , 845 F.2d 1262, 1265 (5th Cir. 1988) ; United States v. Smith , 160 F. Supp. 3d 280, 284 (D.D.C. 2016).
Defendant's May 2018 narcotics offense is substantially similar—and temporally proximate—to the criminal conduct charged by the federal grand jury in this case, and suggests a pattern of narcotics trafficking. This pattern of willful criminal activity indicates that, if released, Defendant would continue to engage in narcotics distribution and would be unlikely to abide by this court's orders regarding appearance at his trial. United States v. Hill , 97 F. App'x 350, 352 (2d Cir. 2004) (stating that defendant's criminal activity demonstrated "that he would be unlikely to respect court orders directing his appearance" at trial); United States v. Moffitt , 527 F. Supp. 2d 474, 479 n.4 (W.D.N.C. 2006) (holding that detention was warranted where, among other things, the defendant's conduct demonstrated "a willful failure to obey the law").
4. Violation of the Terms of His Probation
As noted above, for the sex offense Defendant committed, a Florida court placed him on probation for six years. Subsequently, the state charged Defendant with two violations of the terms of his probation. The first involved his associating with a wanted fugitive. Defendant admitted that he committed this violation. The second violation alleged that Defendant possessed two firearms, but when the Defendant stated that the firearms belonged to his father, the violation was dismissed. The admitted violation of the terms of his probation further indicates that Defendant likely would not comply with terms of release imposed by this court. As to the violation relating to possession of firearms, this further demonstrates Defendant's longstanding access to firearms—discussed below—which further indicates that Defendant would pose a danger to the community if released.
5. Defendant's Occupation
Defendant's mother—Gloria Ingram—testified that Defendant worked for her power-washing company, Ingram's Cleaning and Pressure Washing. Her testimony was less than compelling, however. For example, she was unsure how often Defendant actually performed power-washing for her company. When pressed on this, she stated that it was "maybe one day a week, if we had something scheduled to clean." She also conceded that Defendant earned no taxable income—or at least none that was reported to the IRS—for his labor. Her testimony, therefore, indicates that Defendant was not employed by his mother in any real sense of the term, and at best was sporadically assisting her in the power washing business. The evidence, therefore, suggests that Defendant derived his income from some other source.
The State of Florida Division of Corporations has a record of a limited liability company known as "Ingram's Cleaning and Pressure Washing, LLC," which is listed as "inactive." The registered agent of this LLC is "Kadeem K. Ingram," and "Gloria J. Ingram" and "Kenneth Ingram" are listed as persons affiliated with this LLC. The listed address is the same address at which Defendant purportedly resided. The Defendant is listed as the registered agent of two additional LLCs: "Ingram's Cleaning and Pressure Washing and Lawn Care, LLC," and "Ingram's Cleaning Services, LLC."
In addition to being unlawful and detrimental to the safety of society, it is well known that drug dealing is "a violence-prone business." United States v. Lane , 252 F.3d 905, 907 (7th Cir. 2001) ; see United States v. Caro , 597 F.3d 608, 624 (4th Cir. 2010) ("[I]llegal drugs have long and justifiably been associated with violence."); United States v. Diaz , 864 F.2d 544, 549 (7th Cir. 1988) (noting that "the illegal drug industry is, to put it mildly, a dangerous, violent business"). There is a serious danger that, if released, the Defendant would return to drug trafficking to support himself. It is worth noting that "when a drug trafficker reoffends, he is most likely to commit another drug trafficking offense ...." Ovalles v. United States , 905 F.3d 1231, 1254 (11th Cir. 2018) (W. Pryor, J., concurring). Undoubtedly "society is endangered when courts release those individuals into the community whose past conduct indicates that they are likely to possess, control or distribute controlled substances." United States v. Anderson , 670 F.2d 328, 330-31 (D.C. Cir. 1982). Thus, in multiple ways, "drug offenders pose a special risk of flight and dangerousness to society." Rueben , 974 F.2d at 586. This further suggests the need to detain Defendant pending trial.
6. Defendant's Access to Firearms
The evidence also showed that Defendant has access to the multiple firearms discovered by law enforcement agents in July 2019 at the house that Defendant asserted was his primary residence. This further indicates that Defendant poses a danger to the community, especially in light of his apparent profession. See United States v. Abboud , 42 F. App'x 784, 784 (6th Cir. 2002) (while affirming the district court's pretrial detention order, noting that firearms were recovered in a search of the defendant's home and business); United States v. Portes , 786 F.2d 758, 765 (7th Cir. 1985) (holding that the defendant posed a threat to the community, warranting pretrial detention, in part because agents found firearms at his home). As courts have noted, "guns and drugs form a lethal combination that can lead to violence." United States v. Harris , 128 F.3d 850, 852 (4th Cir. 1997). Defendant's demonstrated access to firearms further demonstrates his dangerousness and the unlikelihood that he would abide by the conditions of release imposed by this court.
7. Likelihood of a Substantial Sentence if Convicted
If convicted of the charged offenses, Defendant faces two mandatory-minimum terms of five years of imprisonment and up to 120 years of imprisonment. "Assessment of the flight risk posed by a defendant often implies a calculation of the relative cost of remaining and submitting to trial or, in the alternative, fleeing the jurisdiction." United States v. Megahed , 519 F. Supp. 2d 1236, 1242 (M.D. Fla. 2007). A defendant facing a substantial term of imprisonment has commensurate incentive to flee insofar as the cost of taking his chances at trial is great in comparison to the cost of fleeing. See United States v. Valentin-Cintron , 656 F. Supp. 2d 292, 296 (D.P.R. 2009) (noting that "the steeper the sentence, accompanied by a strong case against him, and an extensive prior criminal history increases the probability of risk of flight"). The Defendant, therefore, certainly has strong incentive to flee. Khusanov , 731 F. App'x at 21 (noting that a "defendant facing a potentially lengthy prison sentence possesses a strong motive to flee"); United States v. Tomero , 169 F. App'x 639, 641 (2d Cir. 2006) (acknowledging that a "defendant's potential for a fifteen-year sentence created a substantial risk of flight").
8. Defendant's Ties to his "Godfather" in Miami, Florida
The government also indicated that, while Defendant was incarcerated in the Walton County Jail in July 2019, the Jail recorded telephone conversations between Defendant and his co-defendant father. In at least one such call, Defendant and his father discussed Defendant moving to south Florida, with the assistance of his "godfather," whom the government contends supplied Defendant with cocaine. According to the government, this telephone conversation indicates that, if released, Defendant would flee to south Florida to escape prosecution. Presuming that this "godfather" is his source of cocaine, his "godfather" certainly would have incentive to assist Defendant in evading a prosecution, particularly because the current federal prosecution provides Defendant strong incentive to identify his "godfather" to the government and offer to testify against him. This evidence further suggests that Defendant poses a risk of flight if released.
Defendant asserts that this "godfather" is Defendant's "religious leader" and that Defendant's comments about going to Miami were simply an expression of Defendant's desire to get a fresh start in a new location.
D. THE NATURE AND SERIOUSNESS OF THE DANGER POSED BY RELEASE
As the discussion above indicates, release of the Defendant poses a serious risk of danger to the community, including a risk of violence, a risk that Defendant will commit a sex offense against children, the risk of his continued drug distribution, and the danger of the possession or use of firearms. See Hare , 873 F.2d at 798 (observing that the "risk of continued narcotics trafficking on bail constitutes a risk to the community); Leon , 766 F.2d at 81 ("[I]t is clear that the harm to society caused by narcotics trafficking is encompassed within Congress' definition of ‘danger’ ").
Based on this short summary of some of the information elicited at the detention hearing, having considered the statutory factors and the findings of fact above, and for the reasons articulated on the record, this court finds that Defendant has not overcome the presumption that no condition or combination of conditions will reasonably assure his appearance as required, nor the presumption that he poses a danger to the community. Accordingly, Defendant shall be detained pending trial.
Because this court is ordering Defendant's detention, its findings and analysis focused on the factors that warrant detention. Some factors weighed in favor of releasing the Defendant—for example, the fact that the Defendant resided in the Northern District of Florida his entire life, and the fact that his mother, father, and two sons also reside in the Northern District. This court also considered the letters of Defendant's friends and family, which stated that Defendant generally was a good person.
V—Directions Regarding Detention
Defendant is committed to the custody of the Attorney General or his designated representative 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 afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the government, the person in charge of the corrections facility shall deliver Defendant to the United States Marshals Service for the purpose of an appearance in connection with a court proceeding.
SO ORDERED , at Panama City, Florida, this 2nd day of December, 2019.