Opinion
2:20-CR-204-NR-4
11-16-2020
UNITED STATES v. MARCUS BEST, Defendant.
OPINION J. Nicholas Ranjan, United States District Judge
Following a detention hearing, Magistrate Judge Kelly ordered Defendant Marcus Best to be detained pending trial. Mr. Best now moves the Court to reconsider the detention order and to grant him pretrial release. [ECF 439]. For the reasons discussed below, the Court will deny Mr. Best's motion.
BACKGROUND
A grand jury indicted Mr. Best, along with 24 co-conspirators, for conspiring to possess with the intent to distribute 400 grams or more of fentanyl, in violation of 21 U.S.C. § 846. [ECF 3]. The indictment arose out of events from March 2019 to August 2020 in the Western District of Pennsylvania and elsewhere. [Id.].
On September 8, 2020, Magistrate Judge Kelly held Mr. Best's detention hearing. [ECF 355]. At the hearing, the government called FBI Special Agent Kevin Pacini as its witness. [ECF 437]. Agent Pacini is assigned to the Greater Pittsburgh Safe Streets Task Force, which focuses on, among other things, narcotics trafficking. [Id. at p. 9]. During the hearing, Agent Pacini testified about the government's investigation that led to Mr. Best's indictment, which included wiretaps. [ECF 437]. These wiretaps intercepted two of Mr. Best's cellphones, one from April 17, 2020 to April 26, 2020, and the other from May 15, 2020 to July 11, 2020. [Id. at pp. 9-10].
Agent Pacini testified that the government learned, from these wiretaps, of Mr. Best's involvement in a narcotics distribution ring. [Id. at pp. 10-11]. Specifically, Mr. Best distributed fentanyl to other suppliers as well as users. [Id.]. According to Agent Pacini, it's estimated that Mr. Best distributed over 1,800 grams of heroin or fentanyl over the course of the conspiracy. [Id. at p. 41]. This investigation led to Mr. Best's arrest on August 20, 2020. [Id.]. The government also executed a search warrant at an address where Mr. Best rented a room. [Id. at p. 42]. During the search of Mr. Best's room, the government found heroin-fentanyl, live ammunition, seven cellphones, cash, and indicia for Mr. Best. [Id. at p. 43].
Following Agent Pacini's testimony at the detention hearing, Mr. Best proffered evidence of his relationship with Ms. Dayona Cousar and her son as evidence supporting his pretrial release; he had also submitted a letter from Ms. Cousar before the hearing. [Id. at p. 56]. Mr. Best emphasized that Ms. Cousar was an approved third-party custodian, and he has a good relationship with her and her son. [Id.]. If Mr. Best were released, he would live with Ms. Cousar. [Id.]. Mr. Best proffered that because Ms. Cousar works from home, she could adequately ensure he abided by his release conditions. [Id.]. But during cross-examination, Ms. Cousar acknowledged that she was unaware of Mr. Best's narcotics distribution before his arrest. [Id. at p. 58].
During the hearing, Mr. Best also proffered that his mother could confirm he had a close relationship with his extensive family. [Id. at p. 56]. And his mother would confirm that he was the closest to her out of all his siblings. [Id.].
After the testimony and arguments, Magistrate Judge Kelly concluded that while a rebuttable presumption of detention applied to Mr. Best, he rebutted the presumption. [ECF 437, p. 7]; [ECF 356]. But Magistrate Judge Kelly concluded, after weighing the Section 3142(g) factors, that Mr. Best be detained pending trial. [ECF 356].
In applying the factors, Magistrate Judge Kelly first concluded that the nature and circumstances of the offense weigh in favor of detention because Mr. Best was a "key player in a very significant drug distribution ring." [ECF 437, pp. 68-69]. Next, she considered the weight of the evidence, finding that it also warranted detention because "the evidence is very clear" that Mr. Best committed the offense he's charged with. [Id. at pp. 69-70]. Magistrate Judge Kelly then considered Mr. Best's history and characteristics, finding that while Mr. Best has significant family and community ties and only minor drug use, he has an unstable employment history and a prior drug felony. [Id. at pp. 71-72]. Finally, Magistrate Judge Kelly considered the nature and seriousness of the danger to the community if Mr. Best were released. She found that this factor weighed in favor of detention because drug trafficking is dangerous to the community and fatal to individuals. [Id. at p. 72].
Magistrate Judge Kelly noted that while Pretrial Services recommended Mr. Best be granted pretrial release, Pretrial Services does not consider the nature and circumstances of the offense, nor the weight of the evidence, in making its recommendation. [ECF 437, p. 68].
Magistrate Judge Kelly thus concluded, despite noting that Ms. Cousar "would be a responsible and reliable third-party custodian," that there were no conditions that could be imposed that would assure the community's safety if Mr. Best were released. [Id. at pp. 72-73]. Magistrate Judge Kelly therefore ordered Mr. Best detained pending trial. [ECF 356].
Mr. Best now moves for this Court to reconsider the detention order and grant pretrial release. [ECF 439]. After Mr. Best filed a supplemental brief in support of his motion [ECF 469], the government filed its opposition. [ECF 470]. The matter is now ready for disposition.
LEGAL STANDARD
Under 18 U.S.C. § 3145(b), "If a person is ordered detained by a magistrate judge . . . the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." The district court then reviews the magistrate judge's detention order de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). If, as here, the record was fully developed before the magistrate judge, "and the parties have not proffered any additional evidence which would materially alter the decision of the Magistrate Judge . . . the [District] Court will rule on the record established before the Magistrate Judge." United States v. Bastianelli, No. 17-305, 2018 WL 1015269, at *4 (W.D. Pa. Feb. 22, 2018) (Fischer, J.). No "additional or independent evidentiary hearing [is required] by the district court, and the court may incorporate the transcript of the proceeding before the magistrate judge, including any admitted exhibits." United States v. Talbert, No. 20-266, 2020 WL 6048788, at *3 (W.D. Pa. Oct. 13, 2020) (Ranjan, J.) (citation omitted).
The defendant's detention pending trial is warranted if the Court "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[.]" 18 U.S.C. § 3142(e)(1). A presumption in favor of detention—subject to rebuttal by the defendant—arises if "there is probable cause to believe that the person committed . . . an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq.)." 18 U.S.C. § 3142(e)(3)(A). To rebut this presumption, the defendant "must produce some credible evidence forming a basis for his contention that he . . . will not pose a threat to the community" if released. United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986).
In determining whether the presumption in favor of detention is rebutted, as well as whether detention pending trial is ultimately warranted, the Court considers the four factors of Section 3142(g): (1) the nature and circumstances of the offense; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including his character, family, employment, finances, length of residence, ties to community, drug abuse history, criminal history, record of appearance at court proceedings, and whether he was on bond at the time of the charged offense; and (4) the nature and seriousness of the danger posed by the person's release. See, e.g., Carbone, 793 F.2d at 560-61; Talbert, 2020 WL 6048788, at *3. Further, especially in cases like here involving distribution of narcotics, it "is not only helpful, but is often crucial to an effective rebuttal of the statutory presumption" that the defendant show sufficient evidence of his "moral integrity, respect for the law, or personal reliability." United States v. Santiago-Pagan, No. 8-424, 2009 WL 1106814, at *5 (M.D. Pa. April 23, 2009); United States v. Johnson, No. 20-272, 2020 WL 6321578, at *5 (E.D. Pa. Oct. 28, 2020).
If the defendant provides sufficient evidence to rebut the presumption of detention, the evidentiary burden shifts back to the government to show that releasing the defendant would endanger the community. See United States v. Perry, 788 F.2d 100, 114-15 (3d Cir. 1986).
DISCUSSION & ANALYSIS
Mr. Best does not dispute that the statutory presumption favoring detention applies here. [ECF 469, p. 2]. Instead, he argues that he has rebutted the presumption, and the government has failed to show he would endanger the community or fail to appear when required if released. See generally [ECF 469]. The government disagrees, arguing that Mr. Best should be detained pending trial. [ECF 470]. After reviewing the filings related to Mr. Best's motion, as well as the record in this case, including the Magistrate Judge's detention order [ECF 356] and the detention-hearing transcript [ECF 437], the Court finds that Mr. Best did not provide sufficient evidence to rebut the presumption of detention. Detention pending trial is therefore warranted.
Magistrate Judge Kelly found that Mr. Best didn't pose a risk of flight, but that he did present a risk of danger to the community if released. In light of the presumption of detention, Mr. Best was required to come forward with some evidence that he would not be a danger to the community. In this regard, Mr. Best has provided no credible evidence to rebut the undisputed presumption of detention.
As noted above, Mr. Best submitted a letter from Ms. Cousar, who would be Mr. Best's custodian if he were released. [ECF 437, pp. 55-56]; [ECF 469-2]. Mr. Best proffered Ms. Cousar, and her four-year-old son, as evidence that Mr. Best was not a flight risk or a danger to society. [ECF 437, p. 56]. He asserted that he has "an excellent relationship" with both of them. [Id.]. Mr. Best also emphasized that Ms. Cousar works from home, and thus could watch Mr. Best throughout the day and report any improper behavior. [Id.]. During the detention hearing, Mr. Best also proffered as evidence his mother who could confirm Mr. Best's "extensive family in the area and the closeness of the family." [Id.]. Mr. Best otherwise provided no further evidence at the hearing or with his current motion.
Ms. Cousar's letter explains that Mr. Best is very involved in Ms. Cousar's and her son's life. Mr. Best helps Ms. Cousar raise her son, and all three get along well. Ms. Cousar also states that she will be a reliable custodian of Mr. Best. [ECF 469-2]. --------
The problem with this evidence is that while it is relevant to the risk of flight, it is irrelevant to the risk of danger to the community. To rebut the presumption of detention as to community danger, a defendant must come forward with some credible evidence to demonstrate that his criminal behavior is a thing of the past. See United States v. Thompson, No. 16-19, 2018 WL 447331, at *3, n.28 (M.D. Pa. Jan. 17, 2018) ("I first find that, although the testimony of Defendant's sister is probative of his general history and characteristics, it is insufficient to rebut the presumption of dangerousness, which requires a showing that defendant's criminality is a thing of the past. This testimony was not probative of that issue. Such evidence is crucial to an effective rebuttal of the statutory presumption."). This is accomplished by presenting evidence of "moral integrity, respect for the law, or personal reliability." Santiago-Pagan, 2009 WL 1106814, at *5; Johnson, 2020 WL 6321578, at *5.
While Mr. Best's good relationships with his family, Ms. Cousar, and Ms. Cousar's son are certainly positive, that evidence does not demonstrate that Mr. Best will not engage in criminal behavior or pose a threat of danger to the community. Specifically, these relationships do not show Mr. Best's moral integrity, respect for the law, or personal reliability, in light of the charges against him. Indeed, Mr. Best is accused of committing his offenses while these relationships were ongoing. And Mr. Best apparently concealed his criminal enterprises from Ms. Cousar—as she testified, despite their "close friendship for [the past] few years," Ms. Cousar was not aware that Mr. Best distributed narcotics. [ECF 437, p. 58]. Based on the evidence in the record, the only thing that seems to have changed from the time before Mr. Best's arrest and now is that he got caught. Mr. Best has failed to provide sufficient evidence to rebut the presumption of detention.
Furthermore, even if Mr. Best did rebut the presumption, after weighing the Section 3142(g) factors, the Court finds that the government has showed by clear and convincing evidence that detention is warranted here.
Nature and circumstances of the offense. Mr. Bests offense is undeniably serious. He is charged with conspiring to distribute over 400 grams of fentanyl, warranting a mandatory minimum term of imprisonment of 10 years. [ECF 3]; [ECF 18]. As was made clear during the detention hearing, Mr. Best played a significant role in the distribution ring, appearing to be a key supplier to many other suppliers and users. See generally [ECF 437, pp. 9-43]. Additionally, when agents searched the room Mr. Best was renting, they found several rounds of live ammunition, suggesting an added degree of danger. [Id. at p. 43]; Talbert, 2020 WL 6048788, at *4 (citation omitted). The Court concludes this factor weighs in favor of detention.
Weight of the evidence. The weight of the evidence against Mr. Best is strong. During the detention hearing, the government presented evidence that its investigation resulted in wiretaps of two of Mr. Best's phones. [ECF 437, pp. 9-10]. Through these wiretaps, the government learned of Mr. Best's involvement in the fentanyl-distribution ring, having recorded numerous phone calls and text messages involving Mr. Best. E.g., [id. at pp. 10-11]. The government also described Mr. Best's extensive distribution livelihood, which necessarily required possession of significant amounts of drugs. See generally [ECF 437]. Further, upon searching the room Mr. Best rented, agents found heroin-fentanyl, live ammunition, seven cellphones (including one of the phones associated with the wiretaps), and cash. [Id. at p. 43]. The Court concludes this factor weighs in favor of detention.
History and characteristics of the defendant. As discussed above, Mr. Best has good relationships with his family, Ms. Cousar, and Ms. Cousar's son. While that is relevant to whether Mr. Best is a flight risk, the more pressing issue here is whether Mr. Best's release would endanger the community. And because Mr. Best committed his alleged offenses while maintaining these good relationships, the Court finds it does little for Mr. Best's release. While the Court has no reason to doubt Ms. Cousar's genuine willingness to ensure Mr. Best acts appropriately if he's released, the issue lies with Mr. Best. He has already shown he will conceal his criminal conduct from Ms. Cousar. [Id. at p. 58].
Further, Mr. Best does not appear to have any stable employment. [Id. at p. 71 (indicating that Mr. Best has not been employed in over a year, and his prior employment lasted only 3 months)]. In addition, Mr. Best's criminal history also weighs against release. Not only has Mr. Best apparently been engaged in his current criminal enterprise for a significant time, he also has a prior drug felony. [Id.]. And finally, as discussed below, Mr. Best has a troubling attitude towards violence and threatening violence. The Court therefore concludes this factor weighs in favor of detention.
Nature and seriousness of the danger posed. The Court finds the danger posed by Mr. Best's release is significant. As discussed above, his drug offense is extensive and serious. And the nature of his offense—drug trafficking—is particularly dangerous to the community. See, e.g., United States v. Strong, 775 F.2d 504, 506 (3d Cir. 1985) ("The statutory language, as well as the legislative history, unequivocably establishes that Congress intended to equate traffic in drugs with a danger to the community."); United States v. Oliver, No. 16-40, 2016 WL 1746853, at *8 (W.D. Pa. May 3, 2016) (Fischer, J.) ("Drug trafficking certainly poses a substantial risk of harm to the community, particularly the trafficking of significant quantities of very dangerous and addictive drugs like heroin and cocaine."); United States v. Rice, No. 17-1450, 2017 WL 6349372, at *7 (W.D. Pa. Dec. 13, 2017) (Conti, J.) ("Safety of the community is implicated not only by violence, but also by narcotics trafficking. In cases involving drug offenses, the danger to the community is the likelihood that the defendant will, if released, traffic in illicit drugs.").
Further, live ammunition was found in the room Mr. Best rented. And Mr. Best has shown a worrisome attitude towards violence. For example, during an argument with another individual, he stated that he keeps a gun and threatened "I can kill you [and] I'll be waiting for you." [ECF 437, pp. 26-27]. At a different time, Mr. Best laughed when a friend said he had shot someone. [Id. at pp. 32-33, 70]. The Court finds that such an attitude towards violence is probative of a risk of danger to the community.
Accordingly, even if Mr. Best could rebut the presumption of detention, the Court finds that there are not conditions of release that will reasonably assure the safety of any other person and the community.
CONCLUSION
For the reasons discussed above, Mr. Best has not rebutted the presumption of detention. And even if he did, the government has showed by clear and convincing evidence that there are not conditions of release that will reasonably assure the safety of any other person and the community. Mr. Best's motion is therefore denied.
An appropriate order follows. DATED: November 16, 2020
BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge