Opinion
Case No. 00-CR-80128-DT-4.
November 21, 2001
MEMORANDUM OPINION AND ORDER
I. FACTS
Defendant Roderick Henry is charged in a Fourth Superceding Indictment with Conspiracy to Possess with Intent to Distribute more that five kilograms of cocaine in violation of 21 U.S.C. § 841 (a)(1), 841 (b)(1)(A)(ii) and 846. Defendant, a California resident, was arrested on the indictment on or about October 11, 2001, in California for his role as the owner of 150 kilograms of cocaine transported from Los Angeles, California, to and through Detroit, Michigan in exchange for $3.2 million. The government seized the cocaine and money in February 2000. After arresting Defendant on the indictment, the government requested detention. A detention hearing was held before a federal magistrate judge in California, and, satisfied that conditions of bond could be set that would assure both the safety of the community and Defendant's appearance in court, the magistrate judge released Defendant on a $150,000 bond secured by a house belonging to Defendant's brother.
The government exercised its right to appeal the magistrate judge's decision in the Eastern District of Michigan by requesting an Order Staying Magistrate's Order Setting Conditions of Release. This Court granted the government's motion on October 19, 2001. In its Order staying Defendant's release, this Court stated:
Since the defendant has not had an opportunity to respond to the Government's Motion, the Court will consider any response to the Government's Motion that may be filed by the defense in the future, and will conduct a further hearing in the Eastern District of Michigan, upon the request of the defendant, once the defendant has been brought to this District.
Pursuant to this Order, Defendant now requests this Court to grant bond, contending that a condition or a combination of conditions can be set that will satisfy 18 U.S.C. § 3142.
A hearing was held on Defendant's Motion of Bond on November 20, 2001. At the hearing, the government submitted transcripts of two tape recordings revealing conversations Defendant had with a co-defendant, Gregory Jackson. The government contends that the recorded conversations demonstrate that Defendant would flee if released on bond. This Court is satisfied, however, that Defendant has come forward with evidence demonstrating that he is not a danger to the community or a flight risk. Defendant's Motion for Bond is GRANTED subject to the conditions set forth in this Memorandum Opinion and Order.
II. STANDARD OF REVIEW
This Court reviews de novo the magistrate's order of pretrial detention. United States v. Williams, 948 F. Supp. 692, 693 (E.D. Mich. 1996). 18 U.S.C. § 3142 governs pre-trial detention and mandates the release of a defendant pending trial as long as conditions can be set that will reasonably assure the appearance of the defendant as required in the court and the safety of the community. If a judicial officer determines that no set of conditions can be designed to subdue the risk of either flight or danger, however, detention can be imposed. Id.
Congress, believing "that in the majority of serious Controlled Substances Act offenses, there is an increased risk of flight or danger to the community, and in particular, the danger that the defendant will resume drug trafficking activities while released," has statutorily enacted a rebuttable presumption that no such conditions can be instituted if there is probable cause to believe the defendant committed a violation of the Controlled Substances Act, subjecting him to imprisonment for 10 years or more. Williams, 948 F. Supp. at 693. Rebutting the presumption does not lead to its eradication. Instead, "the presumption remains in the case as an evidentiary finding militating against release." Id.; see also United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991). The rebuttable presumption does not alter the government's burden to prove by clear and convincing evidence that no set of conditions will assure the safety of the community or to establish by the preponderance of the evidence that no combination of conditions will guarantee the appearance of the defendant at trial. Id. The presumption places the burden of production upon Defendant to produce evidence that he is not a danger to the community or a flight risk. Id.
III. ANALYSIS
The Court finds that the rebuttable presumption is triggered because Defendant was indicted by the grand jury for a violation of the Controlled Substances Act which prescribes a term of imprisonment often years or more. See Williams, 948 F. Supp. at 694; United States v. Hazime, 762 F.2d 34, 37 (6th Cir. 1985). Specifically, Defendant Henry is charged with Conspiracy to Possess with Intent to Distribute more that five kilograms of cocaine in violation of 21 U.S.C. § 841 (a)(1), 841 (b)(1)(A)(ii) and 846.
In considering whether any conditions of release could reasonably assure a defendant's appearance and the safety of the community, the Court considers various factors, including: (1) the 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 defendant; (3) the defendant's personal history and characteristics, including employment, local connections, and history of appearing at court proceedings; (4) whether the offense was committed while on release, probation or parole for another offense; and (5) the nature and seriousness of the defendant's threat to the community if released. 18 U.S.C. § 3142 (g); United States v. Cashin, 739 F. Supp. 1107, 1110 (E.D. Mich. 1990).
As to the first factor, the nature and circumstances of the offense charged, the offense charged involves a narcotic drug and the circumstances of the alleged crime are serious, weighing in favor of detention. Defendant Henry is charged in a Fourth Superceding Indictment with Conspiracy to Possess with Intent to Distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841 (a)(1), 841 (b)(1)(A)(ii) and 846. He was arrested on the indictment in California for his role as the owner of 150 kilograms of cocaine transported from Los Angeles, California, to and through Detroit, Michigan in exchange for $3.2 million. He faces a mandatory minimum sentence of ten years in prison.
The third and fourth factors, addressed together, clearly weigh in favor of Defendant Henry. Defendant Henry is a 38-year old man with one criminal conviction for receiving stolen property over ten years ago (1990). There is no indication that Defendant committed the alleged drug offense while on release, probation or parole for another offense. Defendant's personal history and characteristics do not indicate that he is a flight risk. Defendant was born and raised in Los Angeles, has been mated for ten years, and is helping to raise four children, ages three to fourteen. He presently owns and operates his own limousine service in the Los Angeles and Orange County area. Defendant has strong and significant family ties to the Los Angeles community. He is active in his local church and has received several offers of monetary assistance from his Los Angeles contacts. Defendant's wife, father, brother and a friend appeared in court with him. Each of these facts tends to indicate that Defendant is likely to return to court and maintain his contact in Los Angeles such that he could be appropriately supervised by Pre-Trial Services in that area.
In addition, Defendant has produced evidence further demonstrating the likelihood of his return to court if bond is granted. His brother, a police detective, has agreed to serve as third-party custodian in the event bond is granted, and Defendant has agreed to be tethered. Defendant has attached fifteen letters of support to his Motion for Bond from well-respected members of the community who can vouch for him. These supporters include pastors, attorneys, as well as family members. This Court concludes that the third and fourth factors weigh in favor of Defendant Henry.
The second and fifth factor are also addressed together. The weight of the evidence against the Defendant is significant. As stated above, Defendant is charged with Conspiracy to Distribute more that 150 kilograms of cocaine worth $3.2 million dollars. The government has stated in its brief that Defendant "was not put out of business by the loss of the $3.2 million in February of 2000. He was intercepted during a State of California wiretap on August 29, 2000, in a call in which he indicated that he had to cancel a current narcotics deal due to the police presence." Additionally, a confidential informant has reported that during the summer of 2001 Defendant was actively seeking to obtain large quantities of cocaine for re-distribution. This evidence would tend to support the government's argument that Defendant was the owner of the cocaine involved and a leader in this enterprise and weighs in favor of detention.
This evidence must also be considered in determining whether Defendant poses a threat to the community if released. The Court notes that this evidence supports an argument that Defendant poses a danger in the community by the continued pollution of our community with drugs.
The government relied on the audio taped telephone conversations of September 21, 2000 and October 18, 2000 to support its argument that Defendant poses a threat to government witnesses. Specifically, the govermuent cites the September 21, 2000 telephone call between Defendant Henry ("H") and Gregory Jackson ("J), a co-defendant. Responding to Mr. Jackson's suggestion that an associate is cooperating with law enforcement, Defendant ("H") suggests they have an "eye to eye:"
J They say he tellin'.
H See what you can do about gettin' out and, um, then, um, then you know, lets holler at him, lets do it right though, you know what I'm saying? Because I'm kind of skeptical about, you know, that's what he's doin', you know what I'm saying? You know. This here, this here ain't no way, shape, form or fashion cool, that bein', you know what I'm saying?
J Uh-huh.
H Yeah, uh, see if you can get out, then uh, let's go and get eye to eye.
J All right.
H OK?
(9/21/00 conversation, p. 3) The government suggests the following conversation on October 18, 2000 constitutes a suggestion that Gregory Jackson should get someone that could never be connected to him to talk "in person" to the witness:
J: Yeah
Scott was talking about, how this might be a big conspiracy.
H: Umm, yeah
Um Hmm, I don't know, how they . . . (repeated) can say that, bottom line is, what they got up on, they didn't have no previous, no, no, no prerecorded conversation prior to, prior to the day of, you know what I'm saying? "Things" was too motherfucking new, shit, you feeling me?
J: Right
H: The "things" was too motherfucking new, Uh, Uh, they grabbed, nabbed all y'all, they take, everybody, had what happened to them happened the same day, and uh, uh, my thing, on its own shut down, that some exact day before I even heard you know anybody was having any kind of problems or anything, you know.
J: Right.
Yup.
H: Let me tell you, though, like I said, if I was you, I'd get my mother, I, I, I, I'd prepare to get my go go boots to cracking, you know, and just, you know, but you got to get back, if that's what you're gonna do and you got to motherfucking plan it, you know.
J: Right, Right.
H: You've got to fucking plan it. You've got to fucking put yourself in a position where you got somebody that is far away that could never ever be, no shape, form or fashion, be connected with anybody in your C family, You understand what I'm saying? Hello?
J: Yeah I'm here.
H: And you've got to have them be your, um, to be your, um, you know, to, to, you know, to be your communicator, to whoever needs to be communicated to, you know.
J: Right.
H: Shit, they need to holler at somebody, to have somebody holler at somebody, you know, you've got to funnel it.
J: Shit but they might have the phones tapped.
H: Huh?
J: I say they might have the phones tapped.
H: Well shit, shit you would, um, have `em holler in person. You know what I'm saying? Them niggers with some sense, you know you have to create it.
J: Right.
(10/18/00 conversation, pp. 7-8)
The government claims the risk to such co-defendants or witnesses of an "in person contact" is clear. Yet, there is no indication that such face to face confrontations have been threatened or have taken place since Defendant Henry has been aware he was a target of this investigation. Nor has the government presented any evidence to support any fear on the part of any co-defendant or witness or any threat made to any witness. The government has not proffered any evidence that Defendant has engaged in any violent tactics or similar behavior in connection with his alleged drug enterprise. The taped recordings also support Defendant's "skepticism" that certain persons might be cooperating. (See citations from the taped conversations above.) The following conversation also indicates Defendant Henry's skepticism:
J Cause Scott was, I talked to Scott a couple of days ago, and he was talking about, uh, Donald was cooperating with the people.
H Wait, whoa, whoa, whoa, whoa, whoa, ha, are you serious?
J Yep
H Say that again, I, I, that doesn't . . .
J Shit, I was fucked up when I heard it too. He said, uh, he say Donald was in there tellin'.
H Is that right?
(9/21/00 conversation, p. 2)
Based on these conversations, this Court cannot conclude that there is a danger to any codefendant or to the government's witnesses.
With respect to the issue of risk of flight, the government also relies on the taped telephone conversations. One audio tape reveals a conversation Defendant had with co-defendant Gregory Jackson on October 18, 2000 after Mr. Jackson had been released on bond by this Court. According to the government, the Defendant said that if he were in Jackson's shoes, "I would consider getting my . . . Go-go boots on, you know." (10/18/00 conversation, p. 7) It is the government's position that this is evidence of Defendant's intent to flee if released on bond. The government further alleges that Defendant stated to Jackson that he would "create a plan somehow to take care of your . . . folks situation, they're property," (10/18.00 conversation, p. 5) and that telephones could not be used to trace him because "I `aint got nothing in my name . . . not even where I lay my head." (10/18/00 conversation, p. 3)
Defendant Henry counters the government's arguments by noting that, although Defendant was contacted in January of this year (over ten months ago) and ordered to appear for photographs, handwriting, and fingerprints in connection with this investigation, he has not attempted to flee. When he was arrested in October of 2001, "he was still living at the same address, going to the same church, and following his normal routine." Defendant argues that Defendant Henry's statements have not been borne out by Defendant Henry's own actions. Nonetheless, as the government argues, "[t]he fact that defendant has stated his intent to flee (getting go-go boots on) is compelling and overwhelming evidence of a risk of flight." The Court agrees that Defendant's statements to Gregory Jackson have not been borne out by his own actions or by his personal history, characteristics or connections to the community.
IV. CONCLUSION
Defendant argues that this Court should consider the "totality of the circumstances" in determining whether he is a flight risk. Considering the "totality of the circumstances," this Court concludes that Defendant is not a flight risk. The Court further finds that Defendant, like many other Defendants charged with drug offenses as a result of the activities or testimony of cooperating witnesses or co-defendants, may bear some ill will toward such witnesses. However, the statements in this record neither specifically indicate that Defendant poses a specific threat to any of these co-defendants or witnesses nor demonstrate that he has engaged in any behavior designed to threaten or harm such persons.
The Court is satisfied that Defendant Henry has overcome the presumption and concludes that there is a condition or a set of conditions that can reasonably assure both the safety of the community including co-defendants and government witnesses and Defendant's appearance in court. The Court sets the following conditions for release in addition to those enumerated on the standard bond release form: 1) that he post a $250,000 secured bond which may be secured by an agreement to forfeit the property Defendant's counsel has proffered, provided it meets the requirements of the Court; 2) that he reside at his current residence in Alta Loma, California; 3) that his brother is appointed third-party custodian for the purpose of assuring on a daily basis defendant complies with the conditions of Defendant Henry's bond; 4) that he be electronically monitored at that location, being allowed to continue his employment so long as he provides proof of that employment and its hours and that he not be released until the electronic monitoring is set up; 5) that he present himself at least bi-weekly or more often as directed by the Pre-Trial Services in the Central District of California for close supervision; 6) that he not commit any other crimes, use any illegal drugs, or possess on his person or property or residence any firearms or ammunition; 7) that he abide by all other conditions set in this district and in the district where he will be supervised; 8) that he have no contact at all with any persons alleged to be involved in the drug enterprise alleged and that he cause no one else to have such contact (any threat on any government witness or co-defendant in this action will result in revocation of the bond); 9) that he have no contact with anyone known to be in the business of selling or using illegal drugs; 10) that his travel is confined to Los Angeles County and Orange County, except that he may travel to Detroit, Michigan for his court appearances; 11) that he not enter the premises of any airport, seaport, railroad, or bus terminal which permits exit from the Continental United States or area of restricted travel without court permission; and 12) that any violation of his bond conditions will result in revocation of the bond, upon the request of PreTrial Services or the government.
Accordingly,
IT IS HEREBY ORDERED that Defendant Henry's Motion for Bond (Docket No. 56, filed November 15, 2001) is GRANTED upon the conditions set forth above and in the Bond papers entered by the Court.