Opinion
Case No. 2:04-CR-426 TS.
July 6, 2004
ORDER DENYING UNITED STATES' APPEAL OF MAGISTRATE'S ORDER SETTING CONDITIONS OF RELEASE
This matter came before the Court on July 6, 2004, for hearing on the United States' Appeal of Order of Magistrate Judge Releasing Defendant Pending Trial, filed July 1, 2004. The Court received Defendant's response shortly before the hearing. The Court, having reviewed the pleadings and the file, having heard argument of counsel at the hearing, and being otherwise fully informed, will DENY the United States' appeal, as is set forth below.
BACKGROUND
On June 30, 2004, Defendant was charged in a single-count Indictment with Coercion and Enticement for Illegal Sexual Activity, in violation of 18 U.S.C. § 2422(b). Defendant appeared before Magistrate Judge Nuffer for a detention hearing on Monday, June 28, 2004, and was ordered released from custody pending trial. Judge Nuffer stayed execution of the release order until Thursday, July 1, 2004, at noon, for the government to seek review by this Court. The release order was further stayed until the above-referenced hearing could be held on July 6, 2004.
DISCUSSION
DUCrimR 57-16(a)(1) provides that "[a]ny party is entitled to appeal a magistrate judge's order releasing or detaining a defendant under 18 U.S.C. § 3142 et. seq. The appeal will be a timely scheduled de novo review by the assigned district judge."
The Court notes that, as a general rule, the presumption lies in favor of release of a defendant, unless certain other factors are present that make release of the defendant unsafe or impractical. However, in certain cases, the presumption shifts. Section 3142(e) dictates that, "[s]ubject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . an offense involving a minor victim under section . . . 2422 . . ." Defendant has been indicted under 18 U.S.C. § 2422(b), and is subject to a five-year minimum mandatory. Therefore, the Court finds that there is a presumption in favor of detention of Defendant, subject to his rebuttal.
Further, subsection (g) to § 3142 sets forth factors the Court is to consider "in determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community . . ." Those factors include the nature and circumstances of the charged offense, the weight of the evidence, the history and characteristics of the person, and the nature and seriousness of the danger posed by the person to the community upon release.
Based upon the testimony and evidence received today, and having reviewed the magistrate judge's detention order de novo, the Court finds that the nature and circumstances surrounding this offense are serious. Given the shifted presumption assigned by the statute, Congress evidently also believes it is serious. Further, the weight of the evidence against Defendant is strong. However, in light of Defendant's responsible history in the community and with his family, the total absence of any prior negative history, and careful consideration of the statutory factors and available supervision tools, the Court finds that Defendant has successfully rebutted the presumption against his release. The Court concurs with the pretrial supervisor that Defendant's risk of both danger and flight are manageable with the imposition of conditions of release, as set forth by Judge Nuffer. The Court further finds that the posting of bail is not necessary in this case.
CONCLUSION
Therefore, the government's Appeal of Magistrate's Detention Order is DENIED. The Order of Release Pending Trial entered by the magistrate is AFFIRMED, and Defendant shall remain released pending trial.
SO ORDERED.