Opinion
Case No. 16-CR-00394-RBJ
04-05-2017
UNITED STATES OF AMERICA, Plaintiff, v. CEDRIC BERNARD HARP, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter was before the court for detention hearing on April 5, 2017. The court has taken judicial notice of the court's file and the pretrial services report. In addition, the court has considered the proffer by defendant and the arguments by counsel. The court now being fully informed makes the following findings of fact, conclusions of law and order for detention.
In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant's presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. The former element must be established by a preponderance of the evidence, while the latter requires proof by clear and convincing evidence.
If there is probable cause to believe that the defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.
The Bail Reform Act, 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community:
(1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(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.
In making my findings of fact, I have taken judicial notice of the information set forth in the pretrial investigation report and the entire court file. In addition, I have considered the proffer by defendant. Weighing the statutory factors set forth in the Bail Reform Act, I find the following:
First, I find that the defendant has been charged in the Indictment with Felon in Possession of a Firearm or Ammunition in violation of 18 U.S.C. § 922(g)(1).
Second, I find that probable cause exists that the defendant committed the charged offense based upon the Indictment.
Third, I find that the nature and circumstances of this case involves a felon in possession of a firearm and ammunition.
Fourth, I find that defendant is unemployed. Defendant currently has no assets or income and he owes $5,000 in restitution from a prior criminal conviction. Defendant has self-admitted gang association with "Crips" gang. Defendant's Colorado Driver's License is Canceled/Denied. Defendant has used two alias names and two alias dates of birth in the past. Defendant has a history of alcohol and drug abuse that dates back to age 16. Defendant has used Alcohol; Cannabinoids; Ecstasy, GHB; and Cocaine in the past. Defendant has suffered criminal convictions for Simple Assault; Marijuana Possession Under One Ounce; First Degree Trespassing-Auto-With Intent to Commit a Crime (felony); Careless Driving; Turning Without Signaling; Weapon Possession by Previous Offender Any Prior Felony (felony) [two separate convictions]; Possession of a Schedule II Controlled Substance Methamphetamine Two Grams or Less (felony); and Eluding a Police Officer. Defendant has suffered four failures to comply and one failure to appear all resulting in warrants being issued. Defendant has had his probation [deferred sentence] and community corrections placement revoked in the past. Defendant has absconded from parole in the past. Defendant is currently on probation for Weapon Possession by a Previous Offender Any Prior Felon (felony) out of the El Paso County District Court Case No. 14-cr-2560, indicating that defendant was on probation at the time of the instant offense. Defendant has a pending felony drug case pending out of the Arapahoe County District Court Case No. 17-cr-136.
WHEREFORE, based upon the above findings, I find, by clear and convincing evidence, that the defendant is a flight risk and a danger to the community. I further find that no condition or combination of conditions of release will reasonably assure the presence of the defendant at future court hearings and the safety of the community. Accordingly, I order defendant detained without bond.
Done this 5th day of April 2017.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge