Opinion
Case No. 01-40023-01-DES.
June 11, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant's Appeal of Detention Order (Doc. 26). On June 7, 2001, the court held a hearing on this matter. For the following reasons, the court denies defendant's request for relief.
• PROCEDURAL HISTORY
Linwood Batchelor, Jr. is the only defendant named in a two-count indictment filed March 28, 2001. Count one of the indictment charges defendant with possessing with the intent to distribute approximately 1052 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). The second count charges defendant with possessing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
Defendant was arrested in Manhattan, Kansas, on March 19, 2001, and defendant appeared before Magistrate Judge Catherine A. Walter for a detention hearing on March 28, 2001. On March 29, 2001, in a written order, Magistrate Judge Walter granted the government's request for detention. Defendant brings this request appealing Magistrate Judge Walter's ruling and requesting the court to reverse the detention order and set appropriate conditions for defendant's release.
• STANDARD OF REVIEW
A defendant detained by order of a magistrate judge may seek review before the district court. 18 U.S.C. § 3145(b). The district court conducts a de novo review of the magistrate judge's decision, so the district court gives no deference to the findings of the magistrate judge. See generally United States v. Carlos, 777 F. Supp. 858, 859 (D.Kan. 1991). See also United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990); United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987). The district court may conduct its own hearing and admit evidence, or the court may incorporate evidence presented to the magistrate judge. The entry of evidence rests in the sound discretion of the district court. Koenig, 912 F.2d at 1193.
Under the Bail Reform Act of 1984 ("Act"), 18 U.S.C. § 3141 et seq., the court must order an accused's pretrial release, with or without conditions, unless it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and community." 18 U.S.C. § 3142(e). The Act contains several factors the court must consider in its deliberation:
(1) The nature and circumstances of the offense, 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 — 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
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.18 U.S.C. § 3142(g).
The Act creates a rebuttable presumption against release. The presumption is triggered 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 by the Controlled Substances Act or if the defendant is charged with an offense under 18 U.S.C. § 924(c). 18 U.S.C. § 3142(e).
Once the presumption is triggered, the burden shifts to the defendant to produce some credible evidence contrary to the statutory presumption. See United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991) ("The defendant's burden of production is not heavy, but some evidence must be produced."). Even though the burden of production is shifted to the defendant, the government at all times retains the burden of persuasion. Id. at 1354-55. The government must prove risk of flight by a preponderance of the evidence, United States v. Walters, 89 F. Supp.2d 1217, 1220 (D.Kan. 2000), and the government must also prove dangerousness to any other person or the community by clear and convincing evidence, United States v. King, 849 F.2d 485, 489 n. 3 (11th Cir. 1988). Finally, even if the presumption is rebutted by the defendant, the court may still consider the presumption as a factor in its deliberation of whether to release or detain. Stricklin, 932 F.2d at 1355.
• DISCUSSION
The court bases its decision on the evidence and arguments presented to the magistrate judge and arguments and submissions made pursuant to this review.
• Presumption
Magistrate Judge Walter found, in light of the charges contained in the indictment, that the rebuttable presumption had been triggered. Defendant presents no argument to the contrary, and the court finds the presumption has been raised. See Stricklin, 932 F.2d at 1355 (noting a grand jury indictment charging a listed offense is sufficient to trigger the presumption).
• Rebuttal
The court finds the defendant's proffers before the magistrate judge and before this court are sufficient to satisfy his burden of production. In particular, defendant proffers he lacks the resources to flee; has strong familial ties to Junction City, Kansas; has minimal adult convictions; and has a history of complying with court orders. While presenting a close call, the court finds such facts are enough to rebut the presumption.
• Statutory Factors
1. Nature and Circumstances of the Offense
Defendant is charged with intending to distribute in excess of a 1000 grams of crack cocaine. This is by no means a case of simple possession or small-scale trafficking. In addition, defendant's weapons charge concerns four different firearms. Therefore, this factor weighs heavily in favor of detention.
• Weight of the Evidence
A traffic stop on March 19, 2001, in Manhattan, Kansas, led to a search of defendant's vehicle. In the vehicle, officers found approximately sixty grams of crack cocaine. A search warrant was subsequently executed on defendant's residence in Wamego, Kansas. The search revealed the remainder of the crack cocaine listed in the indictment, four firearms, and more than $56,000 in cash. A second search was conducted at a storage facility, which lead to the seizure of two vehicles. In total, defendant was found to own or possess four vehicles, including a Lexus and Ford Excursion. These facts represent a strong case on the merits, and the court finds this factor weighs in favor of detention.
• History and Characteristics of the Defendant
Defendant has one adult conviction related to drug possession and several juvenile drug convictions. Although the adult conviction is related to a minor possession charge, the court finds that the prior convictions help establish a course of conduct related to drug possession, abuse, or trafficking. Defendant also has one incident of failing to appear as ordered by a court.
Defendant argues he has strong family ties to Junction City, Kansas. His family has also volunteered to assist in defendant's supervision. However, this familial network has not been able to shield or persuade defendant in the past, and the court has little before it demonstrating defendant's personal involvement or dedication to the community.
Defendant has little or no employment experience. However, in light of the amount of currency seized from his residence, defendant obviously has access to substantial financial resources. Such vast resources can be instrumental in a defendant's attempt to flee while on release. In sum, defendant has proffered no credible justification concerning his character that weighs in favor of release.
• Nature and Seriousness of Danger to Any Other Person or the Community
Defendant's residence contained an enormous quantity of crack cocaine, an equally massive amount of cash, four expensive automobiles, and four very lethal firearms. Such evidence is demonstrative of a very successful and dangerous drug trafficking operation. The court has no hesitation in finding the defendant poses a danger to the community. Defendant's only argument is that his parents will be able to sufficiently supervise him at their home in Junction City, Kansas. The court finds such supervision is inadequate to address the danger posed by defendant. In light of defendant's lack of employment experience, the court believes defendant presents a very real threat of continued drug trafficking. This factor weighs in favor of detention.
• CONCLUSION
After a de novo review of the record, the court finds there is no set of conditions of release, which will protect the community for the danger of additional drug trafficking crimes and which will assure the defendant's appearance. The court's decision to detain defendant was reached after a careful consideration of all the facts offered by proffer or otherwise at this hearing and the hearing held before the magistrate judge. The court diligently applied those facts to the factors set forth in the Bail Reform Act. The government carried its burdens, and defendant will be detained.
IT IS THEREFORE BY THIS COURT ORDERED that after de novo review the court denies all relief requested in defendant's Appeal of Detention (Doc. 26), and defendant will be detained pending trial pursuant to this order and Magistrate Judge Walter's order of detention (Doc. 12).