Opinion
Case No. 1:01-cr-031.
January 17, 2006
ORDER RE DETENTION HEARING AND PRELIMINARY HEARING
The court held a detention hearing and a preliminary hearing on January 17, 2006, in Bismarck, North Dakota, on a Petition for Revocation of Supervised Release. AUSA David Hagler appeared on behalf of the Government. Orell Schmitz from the Federal Public Defender's Office appeared with and on the Defendant's behalf. Tim Kramer, of the Probation and Pretrial Service Office, provided testimony during the hearing.
The Defendant was originally convicted of voluntary manslaughter, assault resulting in serious bodily harm, and assault with a dangerous weapon. He was sentenced to 57 months incarceration, 2 years supervised release, and ordered to pay $2,500 in restitution and a $300 assessment. He was released from prison in September 2005. On December 1, 2005, the District Court issued an Order for Arrest as to the Defendant for allegedly violating several conditions of his release, including domestic violence. The Court ordered the Defendant to reside at Centre Inc., for up to six months with the understanding the petition for revocation of supervised release would be dismissed.
Tim Kramer testified he received notice from Centre Inc., that the Defendant absconded and could not be located. On January 10, 2006, a warrant was issued for his arrest. On January 12, 2006, the Defendant contacted Mr. Kramer and offered to turn himself in. The Defendant was arrested and appeared before the Magistrate Judge in the Southeastern District of North Dakota. The magistrate judge ordered him detained pending a detention hearing in this district.
At the hearing, Mr. Kramer testified he believed the Defendant was a flight risk because he absconded from Centre Inc., and that he was a danger to the community because of his alcohol problem and his history of violence. Mr. Kramer testified he was not aware of any place the Defendant could live other than with his mother. Mr. Kramer stated the defendant's mother's house was not a viable option because that was where the alleged domestic abuse took place, which was the subject of the first revocation petition.
Under Rule 32.1 of the Federal Rules of Criminal Procedure, the burden of establishing that a person will not flee or pose a danger to any other person or to the community rests with that person. Fed.R.Crim.P 32.1(a)(6).
For the reasons articulated at the end of the hearing, including the Defendant absconding from Centre Inc., and the Defendant's violent criminal past and continued abuse of alcohol, the court finds by clear and convincing evidence that the Defendant poses a flight risk and a danger to the community and has not overcome his burden under Rule 32.1. The Defendant ignored a court order to reside at Centre Inc., which has terminated his residency as a result of his actions. In addition, the court concludes, on the testimony presented and for the reasons articulated at the close of the hearing, there is probable cause to find that the Defendant committed the offense in the petition.
Accordingly, the court GRANTS the Government's motion to detain pending the revocation hearing. The court FURTHER ORDERS, pending the hearing, the Defendant be committed to the custody of the Attorney General or his 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 consultations 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.