Opinion
No. CR-10-1126-PHX-GMS.
November 9, 2010
ORDER
Pending before the Court is the United States' Motion for Revocation of Release Order (Doc. 115), pursuant to 18 U.S.C. § 3145(a). For the reasons set forth below, that motion is denied. This Court's stay of Judge Burns's release order as set forth in the Order dated October 28, 2010, (Doc 119), is lifted and the Defendant is released on the terms and conditions imposed by Judge Burns in the October 26 hearing.
The Court has obtained and listened to the detention hearing in this matter that occurred on October 21, 25 and 26, 2010. The Court has also obtained and reviewed the Pretrial Services Report prepared by Lorna Murphy, and the Supplemental Reports dated October 1, October 20 and October 26, 2010, and the materials attached to the briefing. The Court has made its own "de novo" determination of the facts, United States v. Koenig, 912 F.2d 1190, 1191-93 (9th Cir. 1990).
In determining whether to detain an individual the statute requires the Court to consider:
1. The nature and circumstances of the offenses charged;
2. The weight of the evidence against the Defendant;
3. The defendant's character, physical and mental condition, family and community ties, past conduct, history relating to drug and alcohol abuse and criminal history; and,
4. The nature and seriousness of the danger to any person or the community that would be posed by the defendant's release. 18 U.S.C. § 3142(g).
1. The Offenses charged
Defendant is charged in Count 1 of the indictment with conspiracy to distribute more than 1000 kilograms of marijuana and in Count 3 with conspiracy to commit money laundering. As both counsel apparently acknowledge, given the amount of marijuana alleged there is a mandatory minimum sentence of ten years for the charge. This gives rise to a statutory presumption, subject to rebuttal, "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)
As the United States notes, if the Defendant is convicted on count one, the Defendant may face a mandatory minimum sentence on count one of 20 years, because the ten year minimum sentence is doubled if the Defendant has been convicted of a previous drug trafficking offense. The likely sentence can effect the weight to be given the presumption. United States v. Moss, 887 F.2d 333 (1st Cir. 1989).
2. The weight of the evidence against the defendant
The United States spent much of the actual hearing attempting to demonstrate that Hush Hush Productions, the video production company apparently owned by Defendant, and the entity which Defendant identifies as his full-time employer, was little if anything more than a front for Defendant's drug operations. Defendant stated that Hush Hush provided him with $3000 monthly income. However, the United States introduced testimony that Hush Hush Productions has no separate business location other than the Defendant's two residences — one a 5000 square foot home purchased by the Defendant in Conyers, Ga. in approximately 2005, and the other a home in Tucson, Arizona, which he refers to as his studio that was first leased by the Defendant in July of 2009. Defendant did not reveal the existence of the Tucson home to the Pretrial Report writer in Georgia. Defendant has a roommate in his Tucson home by the name of Gabriel Sowah.
Defendant splits his time between Tucson and Georgia. He has an Arizona driver's license that reflects his address as being in Tucson, but he declares that Georgia is his primary state of residence.
The United States asserts that neither of these residences, that were both searched, have any significant indicia of a real and ongoing video business being operated from them. Further, particularly in the Tucson location, the United States argues that there was significant indicia of a drug trafficking operation. Testimony indicated that the Tucson residence contained scales, what appeared to be drug ledgers, packaging materials and roofing tar paper, typically used to mask the scent of marijuana.
The United States further asserts that Defendant's financial dealings establish that he has a number of different business accounts, all in various iterations of his name in which he has made significant transactions. Further the government asserts that Defendant's dealings with those accounts demonstrates that he has a tendency to operate with cash in a way designed to avoid the attention caused by federal financial regulations. The United States also offered testimony that he pays significant monthly credit card bills with cash, and that his travels and financial patterns are consistent with a drug operation, and with his life style and expenses, but inconsistent with the amount of money generated by Hush Hush. The government states that the Defendant must have misstated the truth to the Pre-Trial Services officer when he claimed that his principal employer was Hush Hush.
Defendant introduced evidence and/or argument that Hush Hush is actually operated as a video production company involved in a number of real video projects, that there were boxes of DVDs produced by Hush Hush at the locations searched by Defendants, and that the business of video production is inherently erratic and typically involves gaps in income and expenditures especially in recessed economies. Defendant further asserted that video production companies would be legitimately involved in the shipping of DVDs which explains most of the shipping material in the Tucson residence. Further, to the extent the Defendant was able to purchase a costly home in Georgia, that home is in foreclosure, and he is in arrears in his Tucson rent, which tends to contradict the government's assertion that Defendant is currently maintaining a lavish lifestyle funded by his drug trafficking activities.
Defendant also argues that the government has added factual assertions in its motion pertaining to the content of federal wiretaps that is unsupported by any evidence introduced at the detention hearing. To the extent this is so the Court will not consider such assertions. Further, to the extent that the government makes arguments pertaining to the weight of the evidence against the Defendant on the charges, this is among the least important of the factors to be considered in making the detention decision. United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). The Court, in evaluating the government's motion, has kept this injunction in mind.
3. Defendant's character, family and community ties, history relating to drug and alcohol abuse
Defendant was born in Monrovia, Liberia. He apparently became a naturalized citizen of the United States in 1992. He married Toi Eshun in 1992. They have twin 18 year-old daughters beginning college and a five year old daughter. Mr. Eshun also has two other daughters, a 24 year old and a 9 year old, by other relationships. He provides some support to the 9 year-old.
Defendant's Mother continues to live in Ghana, and Hush Hush and presumably Eshun have business connections there. Defendant has traveled outside the United States several times in the last few years. Defendant has no apparent fixed investment in Hush Hush that would tie Hush Hush's operations to any community.
Defendant purchased his home in Georgia in 2005 and it is in foreclosure. Defendant began his lease in Tucson in approximately July 2009, but his lease is in arrears by several months.
Defendant has previously been convicted for possession with intent to distribute cannabis in Illinois state court in 1995.
4. The nature and seriousness of the danger to any person or the community that would be posed by the defendant's release.
Defendant has been charged with a crime that carries a mandatory minimum sentence giving rise to a rebuttable presumption of dangerousness. The presumption imposes a burden of production, not a burden of proof. Even after Defendant has met the burden of production, however, the presumption may continue to carry weight. United States v. Jessup, 757 F.2d 378 (1st Cir. 1985).
After the detention hearing, Judge Burns determined that Defendant's ties to the community as well as the absence of any evidence of violence or disruptive conduct in Defendant's history sufficiently rebutted the presumption of dangerousness. She further found in light of the evidence that the presumption of flight risk had also been rebutted. She found that Hush Hush did engage in actual video production at least occasionally, and did receive income on an occasional basis, She thus found that it would require a great deal of speculation for her to conclude that the Defendant's financial transactions are inconsistent with the income generated by Hush Hush. She acknowledged some inconsistencies in the Defendant's operations, but indicated that they were not "glaring enough" in light of the non-specific factual testimony provided by the government to conclude that the Defendant was actually misrepresenting the truth to the Pretrial Services Officer.
Further she found the presumption rebutted by the fact that the great majority of the Defendants in this case have been released on conditions, even those that have been charged with taking an overt act in furtherance of the conspiracy charged. Defendant has not been so charged. She also noted that the Defendant had made at least some legitimate attempt to self-surrender, which rebuts the argument that he is a flight risk. She thus determined to release the Defendant on conditions.
While the Court is not overwhelmed by the Defendant's significant ties to Georgia or Arizona, the evidence does establish that Defendant has a relationship with his wife and daughters in both Georgia and Virginia. There is no record of violence or disruption in Defendant's criminal history. The Court agrees with Judge Burns that this is sufficient to rebut the statutory presumption of dangerousness. To the extent that the government would have this Court draw the conclusion based on the summary evidence offered at the detention hearing that the Defendant is a danger to the community because he is engaged in an ongoing drug operation, the Court finds that the evidence was too summary to draw such a conclusion consistent with the presumption of innocence confirmed to the Defendant by 18 U.S.C. § 3142(j)
The statutory presumption that the defendant is a flight risk is also overcome by virtue of his relationship with his family, by the fact that the majority of the rest of the Defendants in this case were released on conditions pending trial, by the evidence that once Mr. Eshun heard of the indictment against him, he attempted to self-surrender, Cf. United States v. Hare, 873 F.2d 796 (1st Cir. 1989) (holding that evidence of self-reporting can rebut the presumption of flight), and by the remaining conditions imposed on the Defendant by Judge Burns.
IT IS THEREFORE ORDERED denying the United States' Motion for Revocation of Release Order (Doc. 115), and lifting the stay of Judge Burns's release order imposed by this Court on October 28, 2010 (Doc 119).
DATED this 9th day of November, 2010.