Opinion
Case No. 3:09-mj-143.
July 20, 2009
DECISION AND ORDER
This case is before the Court on Defendant's Motion to Enter Treatment Facility (Doc. No. 10).
The Motion was filed ex parte by Defendant's counsel. Although it contains a Certificate of Service indicating it was served on Assistant United States Attorney William F. Schenck "by court filing," the Certificate is not correct. As the Notice of Electronic filing shows, notice of the filing was given electronically only to Defendant's counsel. Because the Court is unaware of any authority for such a motion to be considered ex parte, the Court has furnished a printed copy to Brent Tabacchi, the Assistant United States Attorney actually assigned to this case. It would have been unethical for the Court to consider the Motion without doing so. Canon 3(A)(4), Code of Judicial Conduct.
When Defendant appeared for the detention hearing in this case on July 8, 2009, his counsel requested that he be accorded substance abuse treatment while detained and the Court on the record directed the United States Marshal to the extent practicable to confine Defendant in a facility which offered such treatment. The Marshal did so and in fact the Court is aware that the Marshal (and not a deputy) made a personal effort to have Defendant enrolled in the abuse treatment program which was currently ongoing in the place of confinement, rather than waiting for the beginning of another cycle of that program.
Defendant now asserts that "the class or classes they [the Miami County Incarceration Facility] offer are not of a nature the Defendant needs to attend." (Motion, Doc. No. 10, at 2.) Instead, Defendant wishes to be transferred to Christopher House, a facility run by TCN Behavioral Health Services, Inc. No opinion by a mental health or substance abuse professional is offered in support of Defendant's asserted "need" to be at Christopher House instead of in the program at MCIF. When Defendant was interviewed by Pretrial Services, "[h]e reported no past or present use of . . . illicit drugs. The defendant's godmother [with whom he has been residing for the past fourteen months] . . . added that he does not . . . use any illicit drugs." Defendant is currently on supervised release in Case No. 3:02-cr-97 in this Court and his Probation Officer reports that he has been "providing clean urines."
Whatever Defendant's use of illicit drugs may be, he has a serious history of providing drugs for others to abuse. He was convicted of aggravated trafficking in 1994, of felony drug abuse in 1995, and of possession of felony quantities of cocaine and its preparation for sale in 2000. The current charges are possession of heroin with intent to distribute and possession of a firearm in furtherance of that crime.
From the description provided, Christopher House is not a secure facility. In determining that Defendant should be detained pending trial, the Court decided that the need of the community to be protected from Defendant's drug trafficking crimes was greater than Defendant's need to do whatever he might do if at liberty, including obtaining drug treatment at a facility of his choice. The Court is certainly willing to have him receive whatever treatment is available at whatever secure facility the Marshal has available for detaining those committed to his custody, but it is not willing to order Defendant transferred to a facility of his choosing.
The Motion to Enter Treatment Facility is denied.