Opinion
No. 3:08-CR-67, (PHILLIPS/SHIRLEY).
May 19, 2008
David P. Lewen, Assisant United States Attorney.
Angela Morelock, Attorney for the Defendant.
MEMORANDUM AND ORDER
All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This matter came before the undersigned on May 14, 2007 for a scheduled detention hearing. Assistant United States Attorney David Lewen was present on behalf of the government. Attorney Angela Morelock was present on behalf of Defendant Walker, who was also present. The government sought to have the Defendant detained pretrial, arguing that there were no conditions of release that would reasonably assure his appearance in future court proceedings and that Defendant Walker's release would pose a danger to the community.
Defendant is charged [Doc. 1] with one count of possession with the intent to distribute fifty grams or more of a mixture and substance containing cocaine base (crack). At the detention hearing, the government did not call any witnesses, instead proceeding by proffer on the issue of the detention. The defense called two witnesses: Defendant Walker and Defendant's sister, Latasha King. Attorney Morelock also made a proffer on behalf of her client on the issue of detention.
Following a detention hearing, a defendant may be detained pending trial if there is no condition or combination of conditions that will reasonably assure (1) the defendant's appearance as required in court and (2) the safety of the community or any person in it. 18 U.S.C. § 3142(e). In the present case, the detention issue turns primarily upon whether any combination of conditions of release could reasonably assure the community's safety. The government must establish the lack of such conditions by clear and convincing evidence. In addition, the government argues Defendant is a flight risk or risk of nonappearance. The burden of proof on this issue is a preponderance of the evidence standard. Given the charges in this case of possession with the intent to distribute drugs, the Bail Reform Act establishes a rebuttable presumption that no condition(s) will reasonably assure both the appearance of Defendant and the safety of the community.
In the Court's oral ruling in regard to Defendant's detention, a complete review and analysis of the parties' positions, issues, and facts were stated. That specific and detailed oral ruling is attached hereto and made a part of this Order as if stated herein verbatim. For the reasons stated therein, I find, pursuant to 18 U.S.C. § 3142, that the Defendant did not overcome the statutory presumption that there are no conditions of release that would reasonably assure the Court of the safety of the community and government has met the burden of establishing by clear and convincing evidence that Defendant Walker's release would pose a danger to the community. Furthermore, the Court finds that there are no conditions or combination of conditions of release that would reasonably assure the Court that Defendant would not pose a danger to the safety of any other person or the community. The Court makes no finding with regard to risk of flight in this matter.
It is therefore ORDERED that Defendant, Bernard Walker, be detained. Defendant will be committed to the custody of the Attorney General or his designated representative for confinement in a correction facility separate to the extent practicable from persons awaiting sentencing or serving sentences or being held in custody pending appeal. Defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. Upon order of this Court or a Court of the United States or upon request of the attorney for the government, the person in charge of the corrections facility shall deliver Defendant to the United States Marshals for the purpose of an appearance in connection with a Court proceeding.
IT IS SO ORDERED.
On the 14th day of May, 2008, the above-styled cause came on for hearing in the United States District Court for the Eastern District of Tennessee before the Honorable C. Clifford Shirley, Jr., United States Magistrate Judge presiding. After other proceedings in this matter, the following Ruling of the Court was had:
THE COURTROOM DEPUTY: Please come to order and be seated.
THE COURT: All right. This is the Court's ruling. And this is one of those hard cases for the Court because there's any number of places where you start. And I guess the place you start is that this is a presumption case. The statute presumes that there's no conditions that I could release Mr. Walker on. And then the Bail Reform Act asks me to go through a factor analysis under 3142(g). And I always do that. And I'm going to do that in this case. And that usually guides the Court as to where to go. But in this case, it still makes it difficult. And here's why.
The first factor is the nature and circumstances of the charge and whether or not it involves a narcotic drug. Well, clearly this charge does. And, so, that factor argues in favor of detention.
The second factor is the weight of the evidence against the defendant. Now, ordinarily that's deemed by this Court to be a wash because the probable cause to believe he's guilty supplied by the indictment is balanced against the presumption of innocence that he enjoys. And, so, generally, I — absent more, I find that to be a wash. Now, in this case, I've got a proffer. The Court's always concerned when it doesn't have any testifying witness with regard to any evidence. And I don't have that in this case. But the, but the proffer is pretty clear. And the proffer is unrebutted with regard to at least possession on the person of the defendant. And, accordingly, that condition or that factor would tip the scales of the weight of the evidence factor against the defendant and in favor of detention.
Now, with regard to the history and characteristics factor, there's actually ten subfactors there. And the first two, physical and mental condition and character, there really wasn't any proof. So, that's neither for or against. So, that's a wash. The next five, family ties, length of residence in the community, employment, financial resources, and community ties, all are flight issue factors and all five appear to argue in favor of the defendant and in favor of his release on that issue.
The next three factors, his past conduct, his history of drug abuse and his criminal history, is a little bit more difficult.
With regard to the past conduct, on the one hand, I have five positive drug tests while he was on supervised release in the past and his supervised release being revoked twice. But on the other hand, I also have him having complied with my pretrial order of release and Judge Varlan's pretrial order of release and his self report. So, for all that, I basically find that to kind of be a wash with regard to past conduct.
With regard to his history of drug abuse, I don't really have drug treatment, but I do have five positive drug tests while on supervised release, which to this Court constitutes a problem with drug use bordering on abuse. And obviously his criminal history, he has two prior felony drug convictions. So, those factors — subfactors would argue in favor of detention.
Then the 3(B) factor is whether at the time of this current offense that we're here on today, whether the defendant was on any kind of a pretrial or post trial release either pending trial or on probation or parole. And it does not appear that he was. So, that would argue in favor of release.
And, finally, the last one is the nature and seriousness of the danger to persons in the community which might be posed by his release. Obviously the cases are replete with findings that drug possession, drug use, positive drug tests, and even up to drug distribution are all very serious dangers and such a release of such a person is considered dangerous. And that factor would argue in favor of detention.
So, at the end of that analysis, it appears that overall, that the 3142(g) factors would argue in favor of detention for danger and argue in favor of release for flight.
The other arguments that Mr. Walker's counsel so ably made and which troubles the Court is that I released him in 2005 and he didn't violate my order then. Judge Varlan continued him on that order and he didn't violate then and he self reported. So, I went back and, and I've looked. And here's the problem. While that argument struck me as really good at first — and it really concerned me that I had done that and he had done well — as I got a little deeper, it appears that I didn't even really have a hearing back in '05, that for whatever reason, the parties agreed that he could be placed on release, that he was on my release less than a week. He just reported for an almost immediate hearing. And the only thing I know at the end of the time was that he appeared. I have no idea whether he was involved in drugs, whether he did anything right or wrong while he was out. All I know is that he appeared. He had no drug tests or anything during that time. And I know that he appeared because apparently, the most he was facing was about one year of jail time. Judge Varlan allowed him to self report, to stay out on the same conditions. But, again, he was out just about thirty days. Just about one month. During that time, it appears he had — didn't report for one drug test, but he did have one negative drug test. And he did report as scheduled, although, again, as the prosecution points out, he was only facing one year of jail time.
And, finally, the Court is troubled as much by this last matter as anything else. And that is the family need for him to be out. So, for all those reasons, it's very difficult for the Court to decide this matter. I've looked again to the Bail Reform Act and the fact that it is overall couched in a design that appears to allow a greater number of releases by setting different and more conditions with one exception — and that unfortunately is a very huge exception in this case — and that is except in drug cases. In drug cases, the Bail Reform Act is designed more for detention. And there is a presumption, in fact, that in "drug cases", that no condition of release will reasonably assure the Court that the defendant won't be a danger to the community. And that's important.
So, at the end of the day, I'm left with the fact that this case has a presumption that no conditions I could place on this defendant would reasonably assure me he wouldn't be a danger or reasonably assure me that the safety of the community or others would be protected. I'm left at the end of the day with the 3142(g) factors arguing in favor of detention with regard to danger. And I'm presented with a defendant who has been convicted twice of being a felony drug offender and who now has a third felony drug charge and a person who has, abeit not violated my previous order several years ago, has repeatedly violated the provisions of his supervised release conditions and who has continued to use drugs and possess drugs while on supervised release.
Accordingly, after considering all those factors, I simply find that the defendant has not rebutted the presumption. And I find that by clear and convincing evidence, he is a danger — his release would present a danger to the community and others. And I simply find there are no conditions that would reasonably assure me of the safety of the community or others. For the record and in case anybody decides to appeal, I do not find that he is a flight risk based on this evidence. I am detaining him on the basis of the danger. And the simple fact is, I simply don't know how to prevent this defendant from being around, using, possessing, and having access to drugs. He has a multi-year history of repeated use and possession. And he just seems determined to continue to be around drugs. And I don't know how to stop that.
And the final, the final problem, actually and ironically, is the living arrangements problem because, while it does create in me great compassion for his family and concern for them, from a strict pretrial supervision standpoint, I simply don't even know where he's going to be living and who he's going to be living with and what the situation's going to be, which makes the placing of conditions and supervision at this time virtually impossible and, pragmatically, such a situation, such an environment coupled with such temptations is just fraught with the likelihood of further violations.
So, for all those matters, respectfully I must find through that analysis that the defendant must remain in detention pending trial. I will put down an order to that effect in writing and either side can handle that appropriately.
Anything further, Mr. Lewen?
MR. LEWEN: No, Your Honor.
THE COURT: Anything further, Ms. Morelock?
MS. MORELOCK: Nothing further at this time, Your Honor.
THE COURT: All right. Mr. Walker, you will be remanded back to the custody of the Marshals. And I'll put down my order as soon as possible. Okay. Court will stand in recess until the next hearing.
THE COURTROOM DEPUTY: All rise. This Honorable Court stands in recess.
(End of proceedings in this matter.)