Opinion
CR-22-01912-001-TUC-JCH (LAB)
10-31-2022
United States of America, Plaintiff, v. James Arthur Bobo, Jr., Defendant.
ORDER
John C. Hinderaker United States District Judge
Before the Court is Defendant James Arthur Bobo, Jr.'s Appeal of Magistrate's Order of Detention ("Appeal") (Doc. 23) under 18 U.S.C. § 3145. Bobo appeals Magistrate Judge Leslie A. Bowman's decision to deny Bobo's request for release to Community Bridges, a substance abuse treatment facility. (Id.) The Government opposes the Motion. (Doc. 25.) For the following reasons, the Court will deny the Appeal and affirm the Detention Order (Doc. 20).
The Court finds these matters appropriate for resolution without oral argument. See L.R. 7.2(f).
I. Background
In the early hours of March 20, 2022, a Sierra Vista Police Department ("SVPD") officer stopped a vehicle carrying driver John Bainter and his girlfriend K.P. (Doc. 25 at 1.) A police canine alerted to drugs, and the officer's subsequent search revealed a broken pen shell in the car. (Id. at 1-2.) K.P. explained she had used the pen to smoke fentanyl pills the day prior. (Id. at 2.) A search of K.P. revealed no pills, and the officer cited her for possession of drug paraphernalia and released her. (Id.)
Roughly half an hour later, the same officer was dispatched to a possible drug overdose in a park bathroom. (Id. at 2.) The officer arrived to find another officer performing CPR on K.P. (Id.) Emergency personnel arrived but could not get a pulse and pronounced her dead. (Id.) The SVPD officers located a piece of tin foil with a partial small melted blue pill on it and two straws, each with a burnt end. (Id.) The officers interviewed two individuals present at the scene: Evangeline Preble and John Bainter, K.P.'s boyfriend. (Id.) Preble lived across the street from the park and shared a bedroom with Bobo. (Id.; Doc. 26 at 3-4.) Preble said she heard a man yelling for help for his girlfriend who was overdosing, and so Preble grabbed Narcan kits and went across to the park. (Doc. 25 at 2.) She gave two Narcan doses to K.P. while on the phone with a 911 operator. (Id.)
Bainter gave two interviews. (Id.) In his first interview, Bainter said K.P. went into the park bathroom to take a pregnancy test, and Bainter went to check on her when it took an excessive amount of time. (Id.) Bainter said he saw K.P. sitting on a toilet, holding a piece of tin foil with a fentanyl pill on it. (Id.) He said K.P. said something to the effect of "Help me," and passed out. (Id.) Bainter started CPR and yelled for help, then ran to houses nearby and banged on doors yelling for help. (Id.)
In his second interview later the same day, Bainter said that after he and K.P. left the traffic stop, K.P. asked Bainter to take her to "James" house across from the park. (Id. at 2-3.) Bainter said they went straight there, and Bainter waited in the car while K.P. went inside the house. (Id. at 3.) When K.P. returned, she said, "I got my blues" and that she needed "to pay James $30 the next day for three pills." (Id.) Bainter and K.P. then went across the street to the park, where K.P. entered the bathroom and events proceeded as described above. (Id.) Bainter also said that he and K.P. had gone to Bobo's house twice before, and Bainter saw Bobo sell fentanyl pills to K.P. on those occasions. (Id.)
SVPD executed a search warrant on Bobo's house. (Id.) They located drug paraphernalia throughout the house and several other individuals living there, including Preble. (Id.) The only fentanyl pills found at the house were in Bobo's bedroom, which contained indicia of his occupancy, including mail addressed to him. (Id.)
After Bobo's arrest, he waived his Miranda rights and told officers that K.P. came to his house to get high, but he would not allow it. (Id.) He initially denied distributing drugs but then admitted he gave K.P. pills and said that she told him she owed him $30. (Id.) The medical examiner conducting K.P.'s autopsy concluded that the cause of death was fentanyl and ethanol intoxication. (Id.)
This is not Bobo's first encounter with the law. In 1979, at age 20, Bobo was sentenced to 6 months in prison and five years on probation for aggravated assault. (Doc. 5 at 3.) At age 25, Bobo was sentenced to five years in prison for theft. (Id.) At age 31, Bobo was sentenced to almost seven years in prison for conspiracy and sale of narcotic drugs. (Id.) At age 39, Bobo was fined for driving with a suspended license. (Id. at 4.) At age 41, Bobo was given one day in jail for driving with a suspended license. (Id.) Three months later, Bobo was given another day in jail for driving with a suspended license. (Id.) Two months later, Bobo was fined for driving with a suspended license. (Id.) At age 44, Bobo was given one day in jail and six months on probation for violation of a promise to appear. (Id.) At age 45, Bobo was fined for diving with a suspended license. (Id. at 5.) At age 48, Bobo was fined and given 80 days in jail and 18 months on probation for assault. (Id.) At age 51, Bobo was fined for intimidating threats with property damage. (Id.) At age 53, Bobo was given cumulative 120 days in jail for assault and fighting. (Id. at 6.) At age 55, Bobo was fined for failure to appear in the second degree. (Id.) At age 56, Bobo was fined for assault. (Id.) At age 59, Bobo was fined and given three years on probation for possession of drug paraphernalia and separately fined and given three years on probation for dangerous drug possession and use. (Id. at 6-7.) Two months later, Bobo's probation was revoked, and he was given one year in prison. (Id.) At age 60, Bobo was given one and a half years in prison for narcotic drug and drug paraphernalia possession and use. (Id. at 7.) Finally, there is an outstanding warrant for Bobo's arrest issued May 21, 2002, for violation of a court order. (Doc. 5 at 7.) The events in this case occurred roughly five months after Bobo's release from prison on his latest charge. (Id.) Bobo is 62. (Id.)
Bobo's record at the Arizona Department of Corrections lists multiple disciplinary infractions for the following offenses: Disobeying Order (12 offenses), Stealing, Striking a Person, Not in an Authorized Area (3 offenses), Refusal to Work, and Being Absent. (Doc. 5 at 7.) The record does not reveal when these various offenses occurred during Bobo's several prison sentences.
Bobo's record includes an additional 37 entries marked “Dismissed” or “Disposition Unknown,” including 14 failures to appear. (See Doc. 5 at 3-7.)
On September 6, 2022, U.S. Pretrial Services issued a report recommending Bobo's detention. (Doc. 5 at 8.) On October 14, 2022, Magistrate Judge Leslie A. Bowman heard argument from Bobo and the Government, and ordered Bobo's detention. (Doc. 20, 21.)
This appeal followed.
II. Legal Standard
A district court reviews a magistrate judge's detention order de novo. See United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). The Bail Reform Act mandates pretrial release unless the court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community." 18 U.S.C. § 3142(e). Probable cause to believe that the defendant violated the Controlled Substances Act punishable by at least 10 years in prison raises the presumption that no conditions could reasonably assure the defendant's appearance. 18 U.S.C. § 3142(e)(3)(A)-(B). This presumption shifts the burden of production to the defendant, but the burden of persuasion remains with the Government. United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008).
As many circuits recognize, the "defendant's burden of production is not heavy, [but] he must introduce at least some evidence." U.S. v. Stone, 608 F.3d 939, 945 (6th Cir. 2010) (emphasis added; internal quotations omitted); see also U.S. v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991) (same "some evidence" standard); U.S. v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991) (same); U.S. v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (same). That is, the defendant must offer at least some evidence "or basis to conclude that the case falls 'outside 'the congressional paradigm' giving rise to the presumption." U.S. v. Taylor, 289 F.Supp.3d 55, 63 (D.D.C. 2018) (quoting Stone, 608 F.3d at 945-46). Even when rebutted, the presumption against release remains and is to be considered alongside all other relevant factors. Hir, 517 F.3d at 1086.
If a defendant succeeds in rebutting a presumption of flight risk or dangerousness, the Court then considers four factors in determining whether to detain or a release the defendant:
(1) the nature and circumstances of the offense charged...;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release....Id.; 18 U.S.C. § 3142(g)(1)-(4).
The government must show the defendant poses a flight risk by a preponderance of the evidence. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). The government must show the defendant poses a danger to the community by clear and convincing evidence. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). Any doubts about the propriety of release should be resolved in Defendant's favor. Id. at 1405.
III. Analysis
Bobo is charged with: (1) Conspiracy to Possess with Intent to Distribute Fentanyl under 21 U.S.C. § 841; and (2) Distribution of Fentanyl Resulting in Death under 21 U.S.C. § 841(b)(1)(c). Both counts involve a controlled substance, and Count 2 subjects Bobo to a mandatory minimum of 20 years up to lifetime imprisonment. The Court therefore notes a statutory presumption that no conditions could reasonably assure Bobo's appearance.
To rebut the statutory presumption, Bobo proffers several items. First, he states that he is a United States citizen, all his family members reside in the Phoenix area, and he has worked seasonally at the same job in Sierra Vista for fifteen years. (Doc. 23 at 5-6.) Second, Bobo states that he does not fit the "congressional paradigm" because he is a drug addict accused of selling a few fentanyl pills, not trafficking large amounts of drugs and without resources to flee internationally. (Id. at 5.) Third, Bobo states that he wants to receive help for his addiction and that he will receive it if released to a treatment program.(Id. at 6.) Fourth, Bobo states that the majority of his record is for drug-addiction-related offenses, and that he was convicted of failure to appear three times out of the 17 on his record. (Id.) Fifth, Bobo states that he was initially arrested for drug possession in this case but then released on his own recognizance without issue. (Id.) Finally, Bobo states that the evidence against him is not strong. (Id. at 7.)
Bobo initially stated that he was not interested in substance abuse treatment. (Doc. 5 at 3.) On September 14, 2022, Bobo was assessed and deemed unsuitable for the Crossroads treatment program. (Doc. 15 at 1.) On October 4, 2022, Bobo was assessed and deemed suitable for the Community Bridges program. (Doc. 22 at 2.)
The Court finds that Bobo has rebutted the presumption against release because he proffered "some evidence" showing a reasonable assurance of appearance. The Court therefore turns to the Bail Reform Act Factors to determine whether release is appropriate.
a. Bail Reform Act Factors
i. Nature and Circumstances of the Offense
The Court may consider the possible punishment and the incentive to flee associated with a defendant's criminal exposure. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990) (noting that the defendants faced a greater penalty after being charged with multiple counts with possible maximum sentences that could be served consecutively, which provided a greater incentive to consider flight).
As noted above, the charges are serious and the circumstances of the offense include a person's death. One charge carries a 20-year mandatory minimum, which at Bobo's current age of 62 could be a de facto life sentence. The Court also notes that the weightier charge was added after Bobo was initially released on the possession charge. Bobo's behavior after the initial charge is correspondingly less indicative of his flight risk if he were released now.
The nature and circumstances of Bobo's offense weigh against release.
ii. Weight of the evidence against Defendant
The weight of the evidence is the least important factor that the Court considers and is not a pretrial determination of guilt. United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.1985); Townsend, 897 F.2d at 994.
The evidence against Bobo, if proved, is substantial and could lead to conviction. The evidence is based primarily on eyewitness accounts, physical evidence, and Bobo's own post-Miranda statement.
Although Bobo has rebutted the statutory presumption against release, the Court must still weigh it as an evidentiary finding. Two aspects of the presumption point in different directions. The likely sentence adds weight to this element because it requires at least 20 years. The fact that Bobo does not fit the congressional paradigm of a drug trafficker reduces the weight of this element. But Bobo's low-volume sales are well within the statute's language even if his is not the paradigmatic case. Taken together, the Court finds these aspects add somewhat to the conclusion that Bobo is a flight risk.
The evidence against Bobo weighs against release.
iii. History and characteristics of Defendant
Bobo's history shows a troubled man at odds with society throughout his life. Bobo spent almost the first fifteen years of adulthood in prison. Since then, the nature of his offenses shifted primarily to drug-related offenses and attendant unstable behavior. The Court acknowledges that substance abuse is a dreadful disease impacting individuals, their families, and their communities. But a person struggling with substance abuse is still responsible for their actions, and for their inaction. Bobo has not sought treatment for his addiction before, and initially stated that he had no interest in treatment. Now Bobo's actions have allegedly caused another person's death. '
The Court also recognizes a pattern of unreliability and failure to comply with court orders. Even discounting the 14 dismissed or disputed failures to appear, three remain that resulted in conviction. Bobo has an outstanding warrant for failure to comply with a court order. At least some of Bobo's behavior in prison indicates that he is not cooperative with authority. The probation violation that resulted in his latest prison sentence was just two years ago. And Bobo reported smoking six to eight fentanyl pills and a % gram of methamphetamine daily until this case prevented him from doing so. The fact that Bobo's behavior likely is related to drug addiction does not excuse it. Even viewed charitably, Bobo's record suggests he cannot credibly promise to appear in the future.
Last, Bobo's tenuous connection to his community overshadows the fact that he has never left Arizona. His former employer and landlord said she will no longer employ him or house him. (Doc. 5 at 2.) His alleged work and housing history suggests a life built around drug use, surrounded by other persons abusing substances. Bobo's 22-year marriage recently ended in divorce, and his children reside with their mother. (Id.) These facts do not reassure the Court that Bobo is likely to appear, particularly considering the gravity of the charge and Bobo's recent loss of employment, housing, and his marriage.
Accordingly, Bobo's history and characteristics weigh heavily against release.
iv. Dangerous nature
Congress was aware of the dangerousness of drug trafficking when passing the Bail Reform Act of 1984:
The Committee intends that the concern about safety be given a broader construction than merely danger of harm involving physical violence.... The Committee also emphasizes that the risk a defendant will continue to engage in drug trafficking constitutes a danger to the "safety of any other person or the community.S. Rep. at 12-13, 1984 U.S. Code Cong. & Adm. News, 3195; see also United States v. Bolivar, 455 F.Supp.3d 1165, 1170-71 (D.N.M. 2020). Many courts, recognizing this danger, have denied pretrial release in fentanyl trafficking cases. See, e.g., United States v. Villot-Santiago, 502 F.Supp.3d 579, 580 (D. Mass. 2020); United States v. Taylor, 449 F.Supp.3d 668, 673 (E.D. Ky. 2020) ("It is beyond dispute that distributing narcotics is a serious offense that poses dire health risks to the community-and the risks associated with fentanyl specifically are even greater."). The Court agrees-where there is a serious danger that the defendant will continue to introduce drugs, violence, and disruptive behavior into the community, that danger warrants detention. Therefore, "when determining whether to detain [the] defendant the court must, in essence, make a prediction as to whether [the] defendant is likely to traffic in illicit drugs if released pending trial based on, inter alia, the factors prescribed by the Bail Reform Act." United States v. Gibson, 481 F.Supp.2d 419, 423 (W.D. Pa. 2007).
Releasing Bobo into the community likely will result in continued dangerous, criminal activity. Drug trafficking is by its nature a danger to the community. Addiction is also highly dangerous-not only for its immediate effects, but for the attendant instability that can (and in Bobo's case has) led frequently to violence and unlawful behavior. Until October of this year, after almost 30 years of drug-related offenses, Bobo initially showed no interest in treating his addiction. Bobo's record includes some violent offenses. In sum, he has six felony convictions, and multiple arrests and convictions for theft, drug sale, assault, and disorderly conduct.
The Court recognizes that Bobo is not the paradigmatic drug trafficker. Unlike the fentanyl cases cited above, he is not charged with moving large amounts of drugs. But even a small amount of fentanyl can be deadly. The Bail Reform Act explicitly requires the Court to consider whether Bobo is a danger to any person, not to consider how many people he may be a danger to, or whether he is a physical danger to them. Based simply on the undisputed record, there is a reasonable likelihood Bobo will continue to sell drugs if released. Together with his history of noncompliance on probation and numerous failures to appear, the Court can find no basis for inferring that Bobo will not pose a danger to his community through continued drug abuse, trafficking, and violence.
The dangerousness factor weighs against release.
b. Conditions of Release
A person facing trial is entitled to release under the least restrictive conditions that will reasonably assure the appearance of the person and should only be denied in rare circumstances. Motamedi, 767 F.2d at 1405. Even in the presence of risk, a defendant must still be released if there are conditions of release that may be imposed to mitigate the flight risk or risk to the community. See 18 U.S.C. § 3142(e). Any doubts about the propriety of release should be resolved in Defendant's favor. Motamedi, 767 F.2d at 1405 .
Bobo's most recent prison sentence was for a probation violation. His record shows a long history of noncompliance. Taken as a whole, his record suggests a high risk of nonappearance. That risk is mitigated somewhat by the nature of the treatment program Bobo seeks release into. C.f. Hir, 517 F.3d at 1092-93 (noting that a critical flaw of proposed conditions of release were that they solely depended on the Defendant's own volition and good faith compliance). But the treatment program is voluntary and only 90 days in length. Even if he completed the program, there is no clear showing what conditions would reasonably assure Bobo's appearance afterward, or what conditions would reasonably mitigate the risk to the community once released.
The immediate proposed conditions coupled with no plan for post-treatment support a conclusion that this factor weighs against release.
IV. Order
After a de novo review, the Court concludes the Government has shown by a preponderance of the evidence that Bobo poses a flight risk. The Court further concludes the Government has shown by clear and convincing evidence that Bobo presents a risk to the community that cannot be mitigated by the proposed conditions of release.
Accordingly, IT IS ORDERED DENYING Bobo's Appeal (Doc. 23).