Opinion
Case Number: CR 11-8217-PCT-DGC
02-02-2012
UNITED STATES OF AMERICA v. Arthur Tisi
ORDER OF DETENTION PENDING TRIAL
In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention hearing has been held. I conclude that the following facts are established: (Check one or both, as applicable.)
[X] by clear and convincing evidence the defendant is a danger to the community and require the detention of the defendant pending trial in this case.
[] by a preponderance of the evidence the defendant is a flight risk and require the detention of the defendant pending trial in this case.
PART I -- FINDINGS OF FACT
[X] (1) There is probable cause to believe that the defendant has committed
[] an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§ 801 et seq., 951 et seq, or 46 U.S.C. App. § 1901 et seq.
[] an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332b.
[] an offense listed in 18 U.S.C. § 2332b(g)(5)(B) (Federal crimes of terrorism) for which a maximum term of imprisonment of ten years or more is prescribed.
[X] an offense involving a minor victim prescribed in _ 18 U.S.C. §§ 2241(c), 2246(2)(D) ____________.
Insert as applicable: Title 18, § 1201 (kidnapping), § 1591 (sex trafficking), § 2241 (aggravated sexual abuse), § 2242 (sexual abuse), § 2245 (offenses resulting in death), § 2251 (sexual exploitation of children), § 2251A (selling or buying of children), § 2252 et seq. (certain activities relating to material involving sexual exploitation of minors), § 2252A et seq. (certain activities relating to material constituting or containing child pornography), § 2260 (production of sexually explicit depictions of minors for importation into the U.S.), § 2421 (transportation for prostitution or a criminal sexual activity offense), § 2422 (coercion or enticement for a criminal sexual activity), § 2423 (transportation of minors with intent to engage in criminal sexual activity), § 2425 (use of interstate facilities to transmit information about a minor).
[X] (2) The defendant has not rebutted the presumption established by finding 1 that no condition or combination of conditions will reasonably assure the safety of the community.
Alternative Findings
[] (1) There is a serious risk that the defendant will flee; no condition or combination of conditions will reasonably assure the appearance of the defendant as required.
[] (2) No condition or combination of conditions will reasonably assure the safety of others and the community.
[] (3) There is a serious risk that the defendant will (obstruct or attempt to obstruct justice) (threaten, injure, or intimidate a prospective witness or juror).
[] (4) ____________
PART II -- WRITTEN STATEMENT OF REASONS FOR DETENTION
(Check one or both, as applicable.)
[X] (1) I find that the credible testimony and information submitted at the hearing establish by clear and convincing evidence as to danger that:
In addition to the presumption, the Court finds that in light of the nature of the allegations, there are no conditions available to the Court which can reasonably assure the safety of the community as Defendant cannot be released to live in the area from which the allegations arose as this is where the alleged victim resides or his current home out-of-state where minors are reported to reside in the home in which he has been living. Moreover, no half way house placement is suitable as Defendant is not in need of substance abuse treatment. Finally, Defendant's past criminal history, which includes a conviction for assault, adds to the risk of danger as does the prior record of failure to comply with conditions of supervised release.
[] (2) I find by a preponderance of the evidence as to risk of flight that:
[] The defendant has no significant contacts in the District of Arizona.
[] The defendant has no resources in the United States from which he/she might make a bond reasonably calculated to assure his/her future appearance.
[] The defendant has a prior criminal history.
[] There is a record of prior failure(s) to appear in court as ordered.
[] The defendant attempted to evade law enforcement contact by fleeing from law enforcement.
[] The defendant is facing a minimum mandatory of ____________ incarceration and a maximum of ____________
[X] The defendant does not dispute the information contained in the Pretrial Services Report, except: Defendant made no presentation on detention.
[] In addition: ____________
The Court incorporates by reference the findings of the Pretrial Services Agency which were reviewed by the Court at the time of the hearing in this matter.
PART III -- DIRECTIONS REGARDING DETENTION
The defendant is committed to the custody of the Attorney General or his/her designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. The defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility shall deliver the defendant to the United States Marshal for the purpose of an appearance in connection with a court proceeding.
PART IV -- APPEALS AND THIRD PARTY RELEASE
IT IS ORDERED that should an appeal of this detention order be filed with the District Court, it is counsel's responsibility to deliver a copy of the motion for review/reconsideration to Pretrial Services at least one day prior to the hearing set before the District Court.
IT IS FURTHER ORDERED that if a release to a third party is to be considered, it is counsel's responsibility to notify Pretrial Services sufficiently in advance of the hearing before the District Court to allow Pretrial Services an opportunity to interview and investigate the potential third party custodian.
____________
David K. Duncan
United States Magistrate Judge