Opinion
Case No. 13-CR-00136-WJM
05-02-2013
UNITED STATES OF AMERICA, Plaintiff, v. JAMES ALI SMITH, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS
FOR ORDER OF DETENTION
This matter was before the court for detention hearing on May 2, 2013. The court has taken judicial notice of the court's file and the pretrial services report. In addition, the court has considered the proffer by defendant and the arguments by counsel. The court now being fully informed makes the following findings of fact, conclusions of law and order for detention.
In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant's presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. The former element must be established by a preponderance of the evidence, while the latter requires proof by clear and convincing evidence.
If there is probable cause to believe that the defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.
The Bail Reform Act, 18, U.S.C, § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community:
(1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including -
(A) 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.
(B) whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
In making my findings of fact, I have taken judicial notice of the information set forth in the pretrial investigation report and the entire court file. In addition, I have considered the proffer by defendant. Weighing the statutory factors set forth in the Bail Reform Act, I find the following:
First, I find that the defendant has been charged in the Indictment with Felon in Possession of a Firearm and Ammunition in violation of 18 U.S.C. § 922(g)(1) and 924.
Second, I find that probable cause exists that the defendant committed the charged offense based upon the Indictment.
Third, I find that the nature and circumstances of this case involves a felon in possession of a firearm and ammunition.
Fourth, I find that Defendant has suffered seven prior failures to appear, four prior failures to comply and four prior failures to pay which resulted in the issuance of warrants. Defendant has had his probation revoked on three separate occasions. Defendant has previously absconded from Denver County District Court Case No. 05-cr-5600 and was arrested in Grandview, Illinois. Defendant has self-admitted recent illicit drug use [marijuana]. Defendant's Colorado Driver's License is suspended. Defendant has been diagnosed with Schizotypal (personality disorder), major depressive disorder and cannabis dependent. Defendant is currently taking psycho tropic medication and seeing a psychiatrist once a month through the Mental Health Center of Denver. Defendant is unemployed and he has not financial ties to Colorado. Defendant has suffered three felony convictions for Possession of Marijuana 8 Ounces, Weapon Possession by Previous Offender, and Weapon Possession on School Grounds. Defendant has suffered misdemeanor convictions for Criminal Tampering, False Information, Threats to Person/Property, Trespass, Interference, Resisting Arrest Enforcement Fleeing and Disturbing the Peace. Defendant has pending a felony charge for Motor Vehicle Theft/ Aggravated $20,000 or Less in Denver County District Court, Case No. 13-cr-840.
WHEREFORE, based upon the above findings, I find, by clear and convincing evidence, that the defendant is a flight risk and a danger to the community. I further find that there are no condition or combination of conditions of release will reasonably assure the presence of the defendant at future court hearings and the safety of the community. Accordingly, I order defendant detained without bond.
BY THE COURT
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Michael J. Watanabe
U.S. Magistrate Judge