Opinion
Criminal Action No. 00-20001-01-KHV
February 15, 2000.
MEMORANDUM AND ORDER
On January 4, 2000, a grand jury returned a one-count indictment which charged Charles C. Underwood with knowingly possessing with intent to distribute more than 100 kilograms of marijuana. On February 1, 2000, after a detention hearing, Magistrate Judge David J. Waxse ordered that defendant be released on certain conditions pending trial. See Order Of Release (Doc. #10) filed February 1, 2000. This matter is before the Court on the government's Notice Of Appeal (Doc. #13) filed February 2, 2000. On February 7, 2000, the Court held a hearing on the government's appeal. Consistent with the Court's oral ruling and for reasons set forth below, the Court finds that defendant should be detained pending trial.
Standard of Review
The government may seek review of a magistrate judge's order of release. See 18 U.S.C. § 3145(a)(1). The district court reviews de novo a magistrate judge's order of release. See United States v. Martinez, No. 99-40095-01-SAC, 1999 WL 1268376, at 2 (D.Kan. Nov. 3, 1999) (citations omitted); United States v. Huffman, No. 98-40068-02-DES, 1998 WL 460260, at 1 (D.Kan. July 1, 1998). The district court must make its own de novo determination of the facts and legal conclusion with no deference to the magistrate judge's findings. See Martinez, 1999 WL 1268376, at 2 (citations omitted). A de novo evidentiary hearing, however, is not required.See United States v. Morris, No. 99-40003-RDR, 1999 WL 51823, at 1 (D.Kan. Jan. 26, 1999); United States v. Alonso, 832 F. Supp. 503, 504 (D.P.R. 1993). The district court may either "start from scratch" and take relevant evidence or incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted. See Martinez, 1999 WL 1268376, at 3 (citations omitted). The Federal Rules of Evidence do not apply to detention hearings. See 18 U.S.C. § 3142(f). The Court may allow the parties to present information by proffer or it may insist on direct testimony. See id.; Martinez, 1999 WL 1268376, at 3.
Standards For Detention
"The government must prove risk of flight by a preponderance of the evidence." Id. (citations omitted). "The government must prove dangerousness to any other person or the community by clear and convincing evidence." Id.; see 18 U.S.C. § 3142(f). The Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., provides a rebuttable presumption of risk of flight or danger to the community when a defendant is charged with an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801 et seq. See 18 U.S.C. § 3142(e); see also United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991) ("upon a finding of probable cause that defendant has committed a federal drug offense carrying a maximum prison term of ten years or more, a rebuttable presumption arises that no conditions of release will assure defendant's appearance and the safety of the community").
"A grand jury indictment provides the probable cause required by the statute to trigger the presumption." United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990). Because a grand jury indictment charges defendant with an offense under section 841(a)(1) (possession with intent to distribute over 100 kilograms of marijuana), which carries a maximum term of imprisonment of ten years or more as prescribed by the Controlled Substances Act, it raises the rebuttable presumptions of risk of flight and danger to the community. See Martinez, 1999 WL 1268376, at 3. The Tenth Circuit outlined the impact of the statutory presumptions:
Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain. See generally United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989).
Stricklin, 932 F.2d at 1354-55. After the presumption is invoked, defendant has the burden to produce evidence to suggest that he either is not dangerous or he is not likely to flee if released on bail. See Martinez, 1999 WL 1268376, at 3 (quoting Quartermaine, 913 F.2d at 916); United States v. Miller, 625 F. Supp. 513, 519 (D.Kan. 1985) ("The burden of production imposed on a defendant is `to offer some credible evidence contrary to the statutory presumption.'") (citation omitted)).
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, the district court must take into account the available information concerning —
(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 person;
(3) the history and characteristics of the person, including —
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. In considering the conditions of release described in subsection (c)(1)(B)(xi) or (c)(1)(B)(xii) of this section, the judicial officer may upon his own motion, or shall upon the motion of the Government, conduct an inquiry into the source of the property to be designated for potential forfeiture or offered as collateral to secure a bond, and shall decline to accept the designation, or the use as collateral, of property that, because of its source, will not reasonably assure the appearance of the person as required.18 U.S.C. § 3142(g).
Analysis
At the hearing on February 7, 2000, Officer Ray Bailiff testified for the government. In addition, the Court admitted eight exhibits offered by the government and heard the proffers made by both the government and defendant. After carefully considering the applicable factors, the Court finds that defendant should be detained.
Pursuant to 18 U.S.C. § 3142(i), this memorandum and order constitutes the Court's written findings of fact and reasons for detention.
I. Nature and Circumstances of the Offense
Defendant is charged with knowingly possessing with intent to distribute more than 100 kilograms of marijuana. As noted above, the statute provides a presumption of detention in such cases. See 18 U.S.C. § 3142(e).
II. Weight Of The Evidence
The weight of evidence against defendant is overwhelming. On December 17, 1999, officers arrested defendant when they discovered approximately 556 pounds of marijuana in his car during a traffic stop. On October 19, 1999, defendant had purchased the car, a 1999 Lincoln Town Car, for $26,500.00 cash. Defendant had logged over 10,000 miles on the car since he purchased it. After defendant waived his Miranda rights, he admitted that he had picked up the marijuana in Texas for delivery to the Kansas City area. Defendant later told officers that he had made two previous drug distribution trips to Kansas City in the 1999 Lincoln and that he had made a similar trip to the Dallas, Texas area. Officers discovered hotel receipts in defendant's car which confirmed two trips to Kansas City in November 1999 and multiple trips to the Dallas area in October and November. See Exh. 5. Officers also discovered bank deposit receipts which indicated that on October 29, defendant deposited $14,010.00 in two separate bank accounts (less than $10,000 in each); and that on November 22, he deposited $13,000.00 in two separate bank accounts (less than $10,000 in each). See Exhs. 3 and 4. In May or June of 1999, officers seized notes from defendant's recreational vehicle ("RV") which stated "laundering $ [,] wire transfer system is ready. $9,000 is highest amount for each wire transfer. Any deposit over $10,000 will get automatic IRS Report sent in." See Exh. 7.
Shortly after defendant was arrested, he fell to the ground and claimed that he was having a heart attack. Agents transported him to Olathe Medical Center, arrested him, and instructed him not to leave the hospital or call anyone. The agents left the hospital with defendant's telephone and clothing. Several hours later, defendant removed all his medical monitoring equipment, including his I.V. and catheter. Officers discovered him in his hospital gown, attempting to use a pay phone, at a shopping mall across the street from the hospital.
Defendant basically does not contest these facts, but claims that he was involved only because he wanted to support the cost of experimental medical treatment for his wife. Defendant's motive, however, is not relevant to his guilt or innocence. The overwhelming evidence against defendant weighs strongly in favor of detention pending trial.
III. History And Characteristics Of Defendant
Defendant is 67 years old. He retired four years ago and for the past seven years, he has lived in California with his son. Defendant is married but his wife is participating in experimental medical treatment in Anchorage, Alaska and he does not see her for months at a time. Defendant claims to be in poor health. He has hypoglycemia, and also a bone disorder which has caused him to lose five inches in height during the past two years. Currently he is undergoing diagnostic tests for prostate cancer.
Until last year, defendant apparently had no criminal record. On June 1, 1999, however, defendant was charged in the United States District Court for the Southern District of Texas with possession of marijuana with intent to distribute. During a search of defendant's RV, officers seized receipts which indicated that over an 18-month period of time, defendant had traveled to and from at least 27 states (California, Texas, Illinois, Arkansas, Oklahoma, Missouri, Arizona, Virginia, Hawaii, Nevada New Mexico, Utah, Colorado, Iowa, Minnesota, Tennessee, Maryland, Rhode Island, Connecticut, Massachusetts, Virginia, New York, Pennsylvania, New Jersey, Nebraska, North Carolina, Wisconsin). See Exh. 6. Although cross country travel is not suspect by itself, defendant made numerous trips to the same areas over short periods of time, e.g. approximately 15 round trips from Texas to Illinois in 15 months, approximately seven round trips from Texas to California in 17 months, and approximately three round trips from Texas to Virginia in seven months. See id. In addition, officers discovered handwritten notes in the RV which indicated how to avoid drug check points and DEA searches. See Exh. 8. On June 23, 1999, the government dismissed without prejudice the Texas charges against defendant. Although defendant had not attempted to flee the jurisdiction of the Southern District of Texas while the charges were pending, he continued his drug trafficking activities.
Defendant's past behavior suggests that he would be a high risk of flight if the Court were to release him on bond. As noted above, defendant attempted to flee from the hospital after his arrest. At a minimum, he disregarded the officers' instructions not to leave the hospital or call anyone. In addition, when a DEA agent spoke to defendant in Brownsville, Texas, defendant alleged that he was experiencing heart problems. Though defendant was transported to a hospital, no such health problem could be confirmed. The DEA agents thought that defendant had simply faked a heart attack.
Although defendant's age and medical history favor his release pending trial, the high risk of flight suggests that detention is appropriate.
IV. Danger to the Community
Before releasing defendant on any set of conditions, the Court must be satisfied that defendant will not pose a danger to any other person or to the community. See 18 U.S.C. § 3142(b). Although the government has not shown that defendant would be a risk of physical danger to the community, the high risk that defendant will commit additional drug trafficking crimes is sufficient to detain defendant. The Senate Committee on the Judiciary stated in its report accompanying the bail reform legislation that "the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the `safety of any other person or the community.'" United States v. Burch, No. 95-40045-01-02-SAC, 1996 WL 172968, at 6 (D.Kan. Mar 19, 1996) (quoting Senate Report No. 98-225, reprinted in 1984 U.S. Code Cong. Ad. News, pp. 3182, 3196). Based on his prior conduct, the Court cannot predict that defendant would abandon his drug trafficking activities.
V. Conclusion
Based upon the evidence presented and proffered at the hearing, the Court concludes that no set of conditions of release will assure defendant's pretrial presence as required and/or protect the community from the danger of additional drug trafficking crimes. The government has carried its burden of proving that pretrial detention is warranted.
IT IS THEREFORE ORDERED that the Order Of Release (Doc. #10) filed February 1, 2000, be and hereby is VACATED.
IT IS FURTHER ORDERED that defendant is committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. Defendant shall be afforded reasonable opportunity for private consultation with counsel. Upon 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 in which defendant is confined shall deliver him to a United States marshal for the purpose of an appearance in connection with a court proceeding.