Opinion
Case No. 1:03-CR-27 ST.
June 22, 2004
ORDER REINSTATING DETENTION
This matter is before the Court on remand from a Tenth Circuit mandate issued June 15, 2004. The Tenth Circuit (Case No. 03-4153) reversed the Court's June 27, 2003, Order and, on remand, has instructed the Court to "reinstate its original findings and to order Rogers detained pending trial pursuant to the terms of 18 U.S.C. § 3142 and 3143." United States v. Rogers, ___ F.3d ___, 2004 WL 1328691, 7 (10th Cir. 2004). Accordingly, the Court will vacate the June 27, 2003, Order, and will reinstate its original detention order.
PROCEDURAL BACKGROUND
The defendant is charged in a two-count Indictment with Possession of a Firearm While Subject to a Protective Order, and Possession of a Firearm Following Domestic Violence-related Misdemeanor Conviction.
An order of detention was lodged against Defendant Kenneth Charles Rogers by the magistrate judge on February 19, 2004. Defendant initially filed an objection to the magistrate judge's detention order on April 16, 2003. The Court denied that objection orally in court on April 29, 2003, followed by a written order on May 6, 2003. In the Court's May 6, 2003, Order, it found that Defendant represented a danger to a person or the community, and ordered that the magistrate's order of detention remain in effect.
Thereafter, the defendant retained new counsel and, on May 23, 2003, filed a Motion to Review Detention Order Pursuant to § 3142(f)(2) of the Bail Reform Act. On June 2, 2003, the Court held a hearing, and thereafter granted the Motion and ordered the release of Defendant, finding that a detention hearing was not warranted under § 3142(f).
On June 20, 2003, the government pursued an interlocutory appeal, and the Tenth Circuit, on July 8, 2003, entered a stay of the Court's order releasing Defendant. As a result, Defendant has been in custody during the entire pendency of this action — since February 14, 2003.
DISCUSSION
The Court hereby reinstates its original findings, as contained in the May 6, 2003, Order, as follows:
Pursuant to the Bail Reform Act, 18 U.S.C. § 3142 et. seq., the presumption is that a defendant be released pending trial, unless there is clear and convincing evidence that a defendant should be detained. In this case, the Court finds, consistent with Magistrate Judge Alba's findings, that there exists clear and convincing evidence that the defendant is a danger to a person or to the community, and should be detained. Id.
In determining whether to detain a defendant, the Bail Reform Act directs a court to consider, inter alia, the nature of the instant charged offense, the weight of the evidence against the defendant, and the defendant's history and characteristics. 18 U.S.C. § 3142(g). The statute also directs consideration of a defendant's past conduct and criminal history. Id. The Court finds that those factors all weigh in favor of detention of the defendant in this case.
The evidence at the hearing established that the defendant has had four separate protective orders arising out of domestic violence situations, by four different women. Three of those protective orders are still active. The defendant was convicted of domestic violence in 2002. The Court is concerned about the safety of the women who found it necessary to obtain the protective orders and is alarmed by the continued pattern of violence on the part of the defendant.
CONCLUSION
Based upon the above, consistent with the Tenth Circuit's mandate, the Court finds that there is clear and convincing evidence that the defendant is a danger to a person or to the community and should be detained pending trial. It is therefore
ORDERED that the Court's June 27, 2003, Order is hereby VACATED; it is further
ORDERED that the Court's May 6, 2003, Order is REINSTATED; it is further
ORDERED that the Order of Detention Pending Trial remains in effect during the pendency of this case.
SO ORDERED.