Opinion
Case No. 2:09-cr-90.
June 24, 2009
ORDER
The defendant has filed a motion for reconsideration of the oral detention order made by the magistrate judge on June 1, 2009. Review of a detention order pursuant to 18 U.S.C. § 3145(b) is de novo. Under 18 U.S.C. § 3142(e), a judicial officer shall order the detention of the defendant pending trial if he finds that no condition or combination of conditions will reasonably assure the appearance of the defendant as required or the safety of the community. Under 18 U.S.C. § 3142(g), factors to be considered include the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the history and characteristics of the defendant, including family and community ties, residence in the community, employment and criminal history, and the nature of any danger to persons in the community which would be posed by defendant's release.
Subject to rebuttal by the defendant, there is a presumption in favor of pretrial detention if the judicial officer finds there is probable cause to believe that the person committed an offense for which a potential maximum term of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801 et seq. 18 U.S.C. § 3142(e). The indictment in this case, which charges defendant with three counts of distribution of over five grams of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), is sufficient to establish probable cause to believe that the defendant committed an offense that triggers the presumption in favor of detention.See United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985).
The presumption shifts the burden of production to the defendant to show that his release would not pose a flight risk or a danger to any person or the community. United States v. Woods, 230 F.3d 1361 (table), 2000 WL 1478370 (6th Cir. 2000). The government is then required to demonstrate risk of flight by a preponderance of the evidence and danger to the community by clear and convincing evidence. Hazime, 762 F.2d at 37. However, the presumption does not vanish simply because a defendant comes forward with evidence to rebut it. Rather, "the rebutted presumption retains evidentiary weight." United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991). The court may continue to give the presumption some weight by keeping in mind that Congress has determined "that drug offenders pose a special risk of flight and dangerousness to society." United States v. Hare, 873 F.2d 796, 798-99 (5th Cir. 1989). Thus, the court "should consider those legislative findings among the other factors to be weighed in deciding whether a defendant should be detained." United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986).
In the instant case, defendant is charged with three counts of distribution of over five grams of crack cocaine, an offense which carries a mandatory minimum term of incarceration of five years and a maximum of forty years incarceration. The weight of the evidence against the defendant is strong.
In regard to whether any conditions will reasonably assure the defendant's appearance, the court notes that defendant is a lifelong resident of Columbus, Ohio, and has family ties to that community. However, the information concerning defendant's employment status is conflicting. Defendant claims that he has worked part-time for his father for the past four years, but, according to defendant's girlfriend, defendant has been unemployed since 2007. Although defendant stated that he has resided with his mother for the past two years, his mother denied this when officers came to her house looking for defendant. Defendant also reported that he smokes marijuana and that he takes Percocet daily with no prescription.
Defendant has an extensive criminal record of arrests and convictions dating back ten years, including three convictions for drug offenses. His prior record includes several instances of failure to appear and probation violations. Defendant also tried to flee from the officers when they approached him on May 28, 2009, to arrest him on the indictment in the instant case.
On the issue of the potential for danger to the community which would be posed by defendant's release, the record shows that defendant has prior convictions for drug possession and drug trafficking. At the time of defendant's arrest, 4.1 grams of crack cocain was found in defendant's vehicle.
The court finds that the government has sustained its burden of showing by a preponderance of the evidence that the defendant's release on bond would pose a serious risk of flight. The government has also sustained its burden of showing by clear and convincing evidence that the defendant's release would pose a danger to the community. Considering all of the information in the record, the factors in § 3142(g), and the statutory presumption, the court agrees with the determination of the magistrate judge that no conditions or combination of conditions will reasonably assure the appearance of the defendant or the safety of the community. Defendant's appeal of the magistrate judge's order of detention is denied.