Opinion
CRIMINAL ACTION NO. 05-10304-GAO.
December 5, 2006
ORDER
The defendant, Richard Duran, stands indicted on one count of conspiracy to distribute at least one kilogram of heroin and five kilograms of cocaine in violation of 21U.S.C. §§ 841(b)(1)(A)(i)-(ii), 846. After Duran's arrest, the government moved for his detention pending trial pursuant to 18 U.S.C. §§ 3142(f)(1)(B), (f)(2)(A). After hearing on February 8, 2006, Magistrate Judge Collings ordered the defendant detained. On June 13, 2006, the defendant moved for a second detention hearing, which was held before Magistrate Judge Hillman on August 1, 2006. On August 15, 2006, Magistrate Judge Hillman denied the defendant's motion for pre-trial release. The defendant subsequently has moved for review by this Court of the detention order, seeking to have it revoked or amended (dkt. #149).
I have reviewed the materials bearing on the question of detention that were previously submitted by the parties to the magistrate judges. In addition, I have listened to an audio recording of the hearing held before Magistrate Judge Hillman. After review of these matters and consideration of the arguments of the parties, I DENY the defendant's motion to revoke or amend the detention order.
Under the Bail Reform Act, 18 U.S.C. § 3142, release of the defendant is warranted if the court can reasonably be assured of "the appearance of the person as required and the safety of any other person and the community." Id. § 3142(b)-(c). In making this determination, the court must take into account:
(1) the 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 accused;
(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 the record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any other person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g).
A rebuttable presumption in favor of detention arises if the court finds that there is probable cause to believe that the defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. 18 U.S.C. § 3142(e) (2000). The defendant then has the burden of producing some evidence which suggests that the presumption is unwarranted given the particular facts of his case. See United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991); United States v. Jessup, 757 F.2d 378, 381-82 (1st Cir. 1985). Even if the defendant produces such evidence, the presumption in favor of detention does not disappear; it retains evidentiary weight and is considered along with the other factors enumerated in § 3142. See Dillon, 938 F.2d at 1416; United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988); United States v. Palmer-Contreras, 835 F.2d 15, 18 (1st Cir. 1987). Throughout, the government retains the ultimate burden of persuasion. Dillon, 938 F.2d at 1416.
A preponderance of the evidence standard applies to the proof of facts regarding the flight risk determination, but facts supporting a conclusion that the failure to detain the defendant would put the safety of the community at risk must be proved by clear and convincing evidence. 18 U.S.C. § 3142(f); see also United States v. Patriarca, 948 F.2d 789, 792-93 (1st Cir. 1991).
In this case, because the defendant is charged with a drug trafficking crime, the statutory presumption in favor of detention is present. It is also the case that the defendant has offered evidence of his ties to the community and minimal criminal record as a purported rebuttal to the presumption. The burden thus falls to the government to show that there is no condition or combination of conditions that will reasonably assure the defendant's appearance at trial and the safety of the community should the defendant be released.
The defendant proposes that he be released to the custody of a reliable third party with other conditions that might include electronic monitoring, travel restrictions, regular employment, and frequent reporting to Pretrial Services. He argues, in effect, that the proposed conditions would tend either to inhibit or create disincentives to flight or criminal activity harmful to the community, and they no doubt would, to some extent. The critical question is whether those inhibitions or disincentives would be sufficient to "reasonably assure" that the defendant would not flee or represent a danger to the community.
Focusing on the prospect of flight, I find that while it is true that the defendant has ties to the local community, those ties are not so binding that they might not be loosened to the point of disengagement if the defendant perceived a sufficient reason to leave. If he is convicted of the crime he is charged with, he is likely to receive a substantial prison sentence. (There is a potential of a mandatory minimum sentence of ten years.) Though the defendant has family in this area, he also has family in his native Dominican Republic. Evidence offered by the government warrants a finding that in the past at least the defendant has had, and has been with others who have had, substantial sums of money from the drug trade. Fleeing this District to other places in the United States or even to the Caribbean would not require a large sum of money.
Electronic monitoring makes flight somewhat more difficult, but it does not in any reliably effective way prevent it. Monitoring will notify authorities if a monitored defendant has fled, but it will not stop him from doing so. And it does not facilitate locating him after he has fled. Similarly, the third party custodian can have some effect in monitoring the defendant's compliance with conditions, but ultimately any obstacle to the defendant's flight presented by the custodian can be overcome or avoided without great difficulty.
The defendant may now have no actual intention of fleeing if released on the proposed conditions. I do not find that he has but intentions change, and the judgment I have to make has to take into account the full range of possible and likely events.
In the end, in light of the evidentiary value of the statutory presumption, and the considerations outlined about, I am persuaded by all the evidence before me on this issue that there is no condition or combination of conditions short of continued detention that will be sufficiently effective to reasonably assure the appearance of the defendant when required. Having come to this conclusion, it is not necessary to address whether conditions could be fashioned which would reasonably assure the safety of the community.
The defendant's motion to revoke or amend the order of detention is DENIED.
It is SO ORDERED.