Opinion
Case No. 17-MJ-00013-GPG
07-21-2017
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY WARNER, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter is before the court for detention hearing on July 21, 2017. The court has taken judicial notice of the court's file and the pretrial services report. In addition, the court has considered the proffers by the defendant and the government and the government's exhibits 1 through 7, inclusive and 11 and defendant's exhibit B.
Under Federal Rule of Criminal Procedure 32.1, the court "may release or detain the [defendant] under 18 U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the [defendant]."
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.
The government is requesting detention in this case. In making my findings of fact, I have taken judicial notice of the information set forth in the pretrial services report and the entire court file, and have considered the government's exhibits 1 through 7, inclusive and 11 and defendant's exhibit B, the proffer submitted by the government and defense counsel and the arguments of counsel. Weighing the statutory factors set forth in the Bail Reform Act, I find the following:
First, the defendant has been charged in United States District Court for the District of South Dakota, Western Division under Case No. 13-cr-50078-VLD with a Motion to Revoke Defendant's Unsupervised Probation. Defendant has waived his right to an identity hearing today.
Second, I find that the defendant has been unemployed for 2-3 months with some side jobs. Defendant has been previously diagnosed with Schizophrenia, PTSD and homicidal tendencies. He has taken Anitripaline, Haladol and Thorazine in the past but has not been under a doctor's care so he has boug ht these drugs from homeless people. Defendant has been previously been admitted in the psychiatric ward in Humboldt County, California and on several 72 hour hold and treats. Defendant has told pretrial release when he is not on his medications he sees "little people he knows are not there." Defendant has a history of illicit drug use. He has used daily marijuana since age 13. He has also used in the past LSD, Methamphetamine, Cocaine, and Heroin. Defendant grew up with the Hells Angels.
Third, I find that defendant has suffered convictions for Taking a Vehicle Without Owner's Consent (felony); Receiving Known Stolen Property (felony); Burglary (felony); False Identification to Peace Officer (misdemeanor); Possession of a Controlled Substance (felony); Possession of Hypodermic Needle/Syringe (misdemeanor); Parole Violation, Fugitive of Justice (felony); Three Degree Assault (misdemeanor); First Degree Assault on a Peace Officer (felony); DUI (misdemeanor); Possession of Two Ounces of Marijuana (misdemeanor); Disorderly Conduct (misdemeanor); Unlawful Possession of Methamphetamine (felony); and Failure to Pay Legal Child Support (felony). Defendant has suffered at least one prior failure to appear. There is an outstanding felony warrant for the defendant for Assault (felony) out of the Trinity County Sheriff's Office, California in Case No. 14-F-242. This warrant is extraditable in California only. Here, the court concludes that Defendant has not sustained his burden under Federal Rule of Criminal Procedure 32.1.
In light of these facts, I find, by clear and convincing evidence, that defendant is both a flight risk and a danger to the community and that no condition or combination of conditions of release will reasonably assure his presence in court and the safety of the community. Accordingly, I order that the defendant be detained without bond.
Done this 21th day of July 2017.
BY THE COURT
S/ Michael J. Watanabe
Michael J. Watanabe
U.S. Magistrate Judge