Opinion
Case No. 3:06-mj-067.
March 24, 2006
BINDOVER AND DETENTION ORDER
This case came on for hearing on March 24, 2006, for preliminary examination and on motion of the United States to determine whether any condition or combination of conditions set forth in 18 U.S.C. § 3142(c) will reasonably assure the appearance of the Defendant as required in this case and the safety of the community.
Upon the evidence adduced, the Court finds there is probable cause to believe Defendant committed the offense alleged in the Complaint — possession, by one previously convicted of a felony, of a firearm which has moved in or affected interstate commerce — and orders that he be bound over to the grand jury to answer that charge.
In requesting detention, the United States relied on the report of the Pretrial Services Officer and the probable cause determination. Defendant presented no testimony.
Based upon the evidence presented, the Court finds by clear and convincing evidence that no condition or combination of conditions set forth in 18 U.S.C. § 3142(c) will reasonably assure the appearance of the Defendant as required and the safety of the community. Defendant is unemployed. Defendant is 31 years old and reports a history of daily crack cocaine use since the age of 18. Defendant's first felony conviction was twelve years ago when he was 19 and convicted of grand theft auto. Sentenced to probation, he absconded from supervision. In July, 1994, he was convicted of abuse of crack cocaine (broken down from aggravated trafficking); he also absconded from probation on this charge. In 1996 and 1998 he was again twice convicted of felony drug possession of cocaine. In January, 2003, he was sentenced to five years probation and a term at the Monday program on an aggravated burglary conviction. In August, 2005, he was again convicted of felony possession of cocaine. In addition to these convictions, he has had numerous misdemeanor convictions during this time. On at least thirteen occasions in the last twelve years, courts in this community have been required to issue arrests warrants to obtain Defendant's appearance to answer charges, usually for failure to appear in response to a summons or failure to appear after having been released on bond. He and his co-defendant were arrested with drug paraphernalia and a shotgun in an abandoned apartment at Parkside Homes, a Dayton Metropolitan Housing Authority project being demolished, largely because it has become the site of repeated drug-related violence. On at least one occasion, Defendant has been arrested for trespass at DMHA property. At the present time. Defendant has five other pending criminal cases, all drug or trespass related.
That Parkside has been the site of much drug-related violence is sufficiently notorious in the community as to allow of judicial notice, which is hereby taken.
The term "safety of the community" refers to the community's security from criminal conduct by the Defendant, whether violent or not. United States v. Redd, Case No. CR-3-00-92 (S.D. Ohio January 22, 2001), citing United States v. Ramsey, 110 F. 3d 65, 1997 WL 135443 (6th Cir. March 24, 1997) (unpublished) (when considering the "safety of the community" in the context of pre-trial release, "the courts look to more than whether the defendant has been guilty of physical violence"); United States v. Vance, 851 F. 2d 166, 169 (6th Cir. 1988) (recognizing that community safety concerns focus on not only the safety of particular individuals, but also on the safety of the community as a whole).
The Government's Motion to detain is GRANTED.
Accordingly, it is hereby ORDERED that:
1) the Defendant be committed to the custody of the Attorney General of the United States for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal;
2) the Defendant be afforded reasonable opportunity for private consultation with counsel; and
3) on order of a court of the United States or on request of an attorney for the United States, the person in charge of the facility in which the Defendant is confined deliver the Defendant to a United States Marshal or his deputy for the purpose of an appearance in connection with a court proceeding.
Defendants who appeal to a district judge from this Order must, at the same time as filing the appeal, order a transcript of the detention hearing from the court reporter.