Opinion
Case No. 01-40001-03-DES.
April 16, 2001
MEMORANDUM AND ORDER
I. INTRODUCTION.
On April 16, 2001, the Court conducted a detention hearing in this case. The Government appeared by and through Gregory G. Hough, Assistant United States Attorney. The defendant, Jeffery James, appeared in person and through counsel, William Strong.
The issue before the Court is whether the defendant should be released or held in custody pending trial. The bases for the Government's motion for pretrial detention are as follows:
1. that, given the nature of the offenses with which the defendant is charged and the maximum term of imprisonment if the defendant is convicted, there is a statutory presumption of detention in this case;
2. that the defendant poses a serious risk of danger to the community if not detained, specifically, with regard to drug trafficking; and
3. that the defendant poses a serious flight risk if not detained.
Based on the evidence and arguments presented, the Court's findings of fact, conclusions of law, and ruling on the issue of pretrial detention are as follows.
II. FRAMEWORK FOR ANALYSIS.
The Government's motion for pretrial detention has been asserted pursuant to the Bail Reform Act of 1984. See 18 U.S.C. § 3141 to 3150. Of course, as an analytical starting point, it is critical to keep in mind that in our society liberty is the norm and pretrial detention is the exception to that norm. See United States v. Salerno, 481 U.S. 739, 755 (1987). Responding, however, to what Congress perceived to be a "bail crisis in the federal courts" and "the alarming problem of crimes committed by persons on [pretrial] release," the Bail Reform Act was enacted to provide judges the authority to make release decisions that "give appropriate recognition to the danger a person may pose to others if released." Salerno, 481 U.S. at 742 (quoting legislative history). In Salerno, the Supreme Court held that the Bail Reform Act was not facially unconstitutional under the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment. 481 U.S. at 755.
Under the Bail Reform Act, pretrial release is mandated unless the Court finds that, regardless of any conditions, such release will not reasonably assure the appearance of the defendant as required, or that such release will endanger the safety of any other person or the community. See 18 U.S.C. § 3142(b) (e). The Government is not entitled to ask for a detention hearing on the ground of dangerousness unless the defendant is charged in the present case with: (a) a crime of violence; (b) an offense punishable by death or life imprisonment; (c) a drug offense carrying a maximum penalty of ten years or more imprisonment; or (d) any felony if the defendant has two or more prior felony convictions involving crimes of the types mentioned just above. See 18 U.S.C. § 3142(f)(1). However, the Government (or the Court on its own motion) also may request detention in a case that involves: (a) a serious risk that the defendant will flee; or (b) a serious risk that the defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. See 18 U.S.C. § 3142(f)(2).
The Bail Reform Act has certain procedural safeguards for the benefit of the accused. For example, the Government must prove any claim of dangerousness by clear and convincing evidence. 18 U.S.C. § 3142(f). Clear and convincing evidence is evidence that produces in the mind of the trier of fact an abiding conviction that the truth of the factual contentions are highly probable. See Colorado v. New Mexico, 467 U.S. 310, 316 (1984). However, the Government's burden of proof with regard to any claim of risk of flight is only by a preponderance of the evidence. See United States v. Walters, 89 F. Supp.2d 1217, 1220-21 (D.Kan. 2000); United States v. Jones, 980 F. Supp. 359, 361 (D.Kan. 1997); United States v. Carlos, 777 F. Supp. 858, 860 (D.Kan. 1991). See also United States v. Quartermaine, 913 F.2d 910, 917 (11th Cir. 1990).
As a practical matter, the Bail Reform Act calls for a two-step analysis of each case. First, the Court must determine whether: (a) the defendant has been charged with any of the types of offenses specified in section 3142(f)(1) of the statute; (b) the Government contends or the Court believes that there is a serious risk of flight pending trial; or (c) the Government contends or the Court believes that there is a serious risk of obstruction of justice or witness intimidation pending trial. If any of these three situations exist, the inquiry then turns to the second, more difficult step of the analysis. This focuses on whether any combination of conditions that could be placed on the defendant's pretrial release will adequately assure the appearance of the defendant, and adequately assure the community against the danger posed by such release.
III. ANALYSIS.
In the case now before the Court, the defendant has been charged with two of the four types of offenses set out in section 3142(f)(1) of the Bail Reform Act, i.e., the indictment in this case charges defendant with drug offenses that carry penalties of ten years or more of imprisonment under 21 U.S.C. § 841(a)(1). Further, defendant already has two prior felony convictions for possession of narcotic drugs. As earlier indicated, the Government contends that the defendant is a serious flight risk.
The first step of the above-described statutory analysis is satisfied. That is, as a matter of law, the Court concludes that the Government is entitled to seek detention of the defendant on the ground of dangerousness based on the nature of the crime charged, and separately based on serious risk of flight.
In the case now before the Court, the Government has the benefit of section 3142(e) of the Bail Reform Act. It creates the rebuttable presumption that no combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community if there is probable cause to believe the defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed under the Federal drug laws. A rebuttable presumption also applies under 18 U.S.C. § 3142(e) if the pending case involves one of the four types of predicate offenses enumerated in section 3142(f) and if: (a) the defendant previously has been convicted of a crime providing for ten or more years imprisonment on a Federal or State drug-related offense; (b) the offense charged was committed while the defendant was on release pending trial for a Federal or State offense; and (c) a period of not more than five years has elapsed since the date of the above-described conviction.
The statutory rebuttable presumption represents a Congressional finding that narcotics violators as a group are likely to flee and to engage in further criminal conduct undeterred by the pendency of the charges against them. That is, the legislative history shows that Congress found greater recidivism among persons charged with drug felonies. S. Rep. No. 225, 98th Cong. 2nd Session (1984), reprinted in 1984 U.S. Code Cong. Admin. News 3182. In the circumstances that trigger a section 3142(e) presumption, a "strong probability arises that no form of conditional release will be adequate." Id., 1984 U.S. Code Cong. Admin. News at 3202.
The statutory rebuttable presumption only imposes a burden of production of evidence on the defendant. Although this burden of production is not a heavy one, the defendant must at least produce some evidence in order to rebut the presumption. The ultimate burden of persuasion always remains with the Government. See United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989).
In order to rebut the statutory presumption, a defendant need not produce evidence negating the finding of probable cause that he committed the underlying offense. Nor is he expected to negate the Congressional finding that drug offenders may pose a general danger to the community. Instead, a defendant must simply produce evidence showing that what is true in general is not true in his or her particular case, either because of the specific crime charged or because of the defendant's particular circumstances. The defendant's burden of production may be met by evidence bearing on any of the factors which are set forth in section 3142(g) of the Bail Reform Act, including employment history, community ties, and physical and mental conditions. See United States v. Walters, 89 F. Supp.2d 1217, 1220-21 (D.Kan. 2000); United States v. Jones, 980 F. Supp. 359, 361-62 (D.Kan. 1997). See also United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990).
As a matter of law, the indictment in this case, standing alone, suffices to establish probable cause, without any further proof of the underlying offense. See United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991); United States v. Walters, 89 F. Supp.2d 1217, 1220 (D.Kan. 2000); United States v. Jones, 980 F. Supp. 359, 361 (D.Kan. 1997).
Therefore, as a matter of law, the statutory rebuttable presumption is applicable in this case.
Based on the evidence presented during the hearing and discussed in more detail below, the Court finds that the defendant has successfully rebutted the statutory presumption. The statutory presumption, however, is not a "bursting bubble." Even if the presumption is rebutted, it remains in the case as a factor militating against release, and must be considered with all other relevant factors set out in the statute, to determine whether any condition or combination of conditions will reasonably assure that the defendant's pretrial release will not pose a danger to the community. See United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989) (citing United States v. Jessup, 757 F.2d 378, 383-84 (1st Cir. 1985)). See also United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991) (citing Cook). It also should be kept in mind that the concept of "dangerousness," as used in the Bail Reform Act, has a much broader construction than might commonly be understood in everyday parlance. Although it embraces the common notion of a substantial threat of physical violence, it also contemplates the broader danger that the defendant might engage in criminal activity to the detriment of the community. This includes the threat of future drug trafficking. See United States v. Cook, supra, 880 F.2d at 1161 (discussing the statute's legislative history).
If the defendant were to produce no evidence to rebut the presumption under 18 U.S.C. § 3142(e), technically the presumption alone would be sufficient to justify detention, i.e., it would support the conclusion that no conditions of release could reasonably assure the safety of the community. See United States v. Perry, 788 F.2d 100, 107 (3d Cir.), cert. denied, 479 U.S. 864 (1986); United States v. Alatishe, 768 F.2d 364, 371 (D.C. Cir. 1985); United States v. Daniels, 772 F.2d 382, 383 (7th Cir. 1985). See also United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991).
IV. FINDINGS OF FACT.
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, the Court must take into account the available information concerning the following four major factors, which are specifically set forth in section 3142(g) of the Bail Reform Act:
A. The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug. The offenses charged in this case involve narcotic drugs. This factor therefore weighs in favor of detention.
B. The weight of the evidence against the person. Of course, the defendant always is presumed innocent in a criminal case. Nevertheless, under the Bail Reform Act, the Court must consider the weight of the evidence against the defendant in the context of a detention hearing. As mentioned earlier, the grand jury's indictment, standing alone, establishes probable cause for purposes of the Bail Reform Act. In the present case, however, the Government chose not to rest upon the indictment but proffered additional evidence concerning the circumstances of the alleged offenses involved. The Court finds that the record discloses a relatively strong case on the merits against the defendant. This factor therefore weighs in favor of detention.
C. The general history and characteristics of the defendant , which brings into play a variety of specific other sub-factors:
1. The defendant's character. Other than what arguably could be inferred from the previously mentioned probable cause finding, and from the defendant's criminal record which will be separately discussed below, neither party presented anything during the detention hearing from which the Court believes it can fairly be inferred that the defendant's character is particularly good or poor. This factor is neutral.
2. The defendant's mental and physical condition. There is no evidence in the record that the defendant suffers from any significant mental or physical problems.
Prior to the detention hearing, counsel for the Government and for the defendant were provided copies of the Pretrial Services Report concerning defendant's background. The parties stipulated during the hearing that the Court could take judicial notice of the factual information contained in the report.
This factor is neutral.
3. The defendant's family ties. The defendant, age 29, although unmarried, has two children. The defendant barely knows his father. His mother and two of his siblings live in Montgomery, Alabama. Prior to defendant's arrest, he had lived for three months in Hammond, Indiana, having relocated there from Joliet, Illinois. The family ties factor weighs in favor of pretrial release, but only slightly.
4. The defendant's employment situation. Defendant is currently unemployed. He lost his job in February of 2001. He had worked at a steel plant in Illinois for four years. It appears that defendant, were he released, is employable. This factor weighs in favor of pretrial release.
5. The defendant's financial resources. The defendant is a person of limited financial means. He has little, if anything, in the way of accumulated financial resources. Arguably defendant would stand to lose very little if he were to flee before trial. But, the Court declines to draw that inference in this particular case.
This factor is neutral.
6. The defendant's length of residence in the community and his community ties. Apart from what already has been described with regard to family ties and employment, there is nothing in the record to suggest meaningful community ties, including but not limited to such things as particularly close relationships with friends or neighbors, regular participation in a particular form of recreation with other persons, involvement in school or civic groups, holding of public office, membership and some semblance of regular attendance at a particular house of worship, or anything similar to the foregoing activities.
This factor weighs in favor of detention.
7. The defendant's past conduct. Other than what will be addressed separately in connection with the defendant's criminal record, nothing specific has been presented that would allow a reasonable inference that the defendant's prior conduct has been particularly good or poor. This factor is neutral.
8. The defendant's history, if any, relating to drug or alcohol abuse. Defendant admits to weekly use of marijuana. This factor weighs in favor of detention.
9. The defendant's criminal history. In this regard, as summarized in the Pretrial Services Report concerning defendant, his criminal history is as follows:
Date of Arrest
Charge/Agency
Date Sentence Imposed/Disposition
05/22/92
No FOID Card Unlawful Use of a Weapon/Joliet IL, PD
Undetermined.
1/20/93
Battery/Kankakee, IL PD
Undetermined
01/30/94
Unlawful Use of a Weapon/Joliet, IL PD
Undetermined.
12/16/94
Possession of Cannabis Under 30 Grams/ Yorkville, IL PD
Undetermined.
08/19/95
Unlawful Use of a Weapon Active Warrant Arrest/Frankford, IL PD
Undetermined.
03/01/97
Domestic Battery/Joliet, IL PD
Undetermined.
09/15/97
Possession of Cannabis with Intent to Deliver/Joliet, IL PD
06/01/98 — Case # 97CF6425 — Guilty of Possession of Cannabis — Sentenced to 24 months probation.
03/04/99
Domestic Battery/Joliet, IL PD
Undetermined.
10/19/99
Unlawful Possession of Narcotics/Joliet, IL PD
12/21/00 — Case # 99CF1407 — Guilty — Sentenced to 30 months probation to be served with Case # 97CF6425; earliest release date scheduled for June 20, 2003. A motion for revocation of defendant's probation has been filed in Joliet, Illinois due to the instant case.
According to NCIC reports, when arrested in the past, the defendant has provided alias names, dates of birth and social security numbers.
The criminal history factor weighs in favor of detention.
10. The defendant's record concerning appearance at court proceedings. Defendant has not demonstrated any propensity to fail to appear as required in his prior criminal cases, as reflected in the criminal history section immediately above. This factor weighs in favor of pretrial release.
As mentioned earlier, the ten specific sub-factors reviewed immediately above relate to the general history and characteristics of the particular defendant. On balance, in the Court's view, this general factor in this case weighs in favor of detention.
D. The nature and seriousness of the danger to any other particular person, or the community at large, that allegedly would be posed by the defendant's release pending trial. The threat of continued drug trafficking by defendant if he were released presents a very serious danger to the community. This factor weighs in favor of detention.
V. CONCLUSION.
The Court has weighed and balanced all of the various relevant factors. Of course, this exercise is not as simple as counting those factors which weigh in favor of release against those which weigh in favor of detention. Each case calls for individualized analysis.
The Court also has considered all of the various combinations of possible conditions of release which are mentioned in the Bail Reform Act. Further, the Court has considered the particular conditions that have proposed by the defendant, e.g., third party custody and drug treatment. Even applying the stringent standard of clear and convincing evidence, the Court finds that, if the defendant were released pending trial, no combination of conditions will reasonably assure the safety of the community. Based on a preponderance of the evidence, the Court alternatively finds that there is a serious risk that the defendant will flee if not detained.
Under 18 U.S.C. § 3142(c), although not set forth in any order of preference, the conditions of release may include:
1. third party custody;
2. maintaining or seeking employment;
3. maintaining or commencing an educational program;
4. restrictions on travel, personal associations, or place of abode;
5. prohibition against contact with alleged violent or potential witness;
6. regular reporting to a designated law enforcement officer;
7. curfew;
8. prohibition on possession of dangerous weapons;
9. restrictions on use of alcohol or controlled substances;
10. medical or psychiatric treatment;
11. agreements to forfeit money or property upon failure to appear;
12. surety bond;
13. confinement with part-time release; or
14. any other condition reasonably necessary to assure the defendant's appearance and the safety of the community or other persons.
VI. ORDER.
The Government's motion for pretrial detention is granted. The defendant is committed to the custody of the Attorney General, or his designated representative, for confinement in a correction 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.
Dated at Topeka, Kansas, this ___ day of April, 2001.
James P. O'Hara U.S. Magistrate Judge