Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE United States of America
v. Criminal No. 10-cr-136-01-SM Matthew Denton
ORDER OF DETENTION PENDING TRIAL
In accordance with Section 3142(f) of the Bail Reform Act, 18 U.S.C. '' 3141 et seq., a hearing was conducted on October 1, 2010, for the purpose of determining whether to detain defendant, Gilberto Brown, who has been indicted on a charge of aiding and abetting the distribution of cocaine in violation of 18 U.S.C. ' 2.
Under 18 U.S.C. ' 3142(b), a court, in making a determination regarding detention, must evaluate the risk of the defendant s flight, the risk to the safety of any other person, and the risk to the safety of the community. In circumstances when detention is not mandated by the court, the court is nonetheless empowered to impose conditions on release. 18 U.S.C. 3142(c).
Pursuant to the provisions of 18 U.S.C. 3142(g), a court, in assessing the risks noted in 18 U.S.C. 3142(b), shall consider the following: (1) the nature and circumstances of the offense charged; *2 (2) the weight of the evidence as to guilt; (3) the history and characteristics of the accused, including family ties, past history, financial resources and employment; and (4) the nature and seriousness of the danger to any person or the community that would be posed by a release.
During the course of a hearing conducted pursuant to 18 U.S.C. 3142, the government retains the burden of persuading the court that A> no condition or combination of conditions will reasonably assure the defendant s presence at trial. @ United States v. Perez-Franco, 839 F.2d 867, 870 (1st Cir. 1988) (quoting United States v. Palmer-Contreras, 835 F.2d 15, 17-18 (1st Cir. 1987)); United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991). For its part, the government is required to offer clear and convincing evidence of dangerousness; and a preponderance of the evidence to prove risk of flight. See Patriarca, 948 F.2d at 792-93. Facts necessary to find that no combination will reasonably assure the safety of any person and the community require satisfaction of the A clear and convincing @ standard. 18 U.S.C. 3142(f)(2).
In specific instances, delineated in 18 U.S.C. 3142(e), a presumption arises that no condition or combination of conditions will reasonably assure the appearance of a defendant and the safety *3 of the community. Among the instances where a presumption arises is the situation where,
the judicial officer finds that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq) . . . .
18 U.S.C. 3142(e).
In the case at hand, the indictment itself establishes probable cause to believe that the offenses charged have been committed and that the defendant has committed them. Further, the offenses charged against defendant are ones for which a maximum term of imprisonment is ten years or more, as prescribed in the Controlled Substances Act, 21 U.S.C. '' 801 et seq. See United States v. Dillon, 938 F.2d 1412, 1417 (1st Cir. 1991). Thus, Section 3142(e) = s rebuttable presumption that A no condition or combination of conditions will reasonably assure [defendant s] appearance . . . and the safety of the community . . . @ is triggered in this case. See 18 U.S.C. 3142(e), (f); 21 U.S.C. 841(b)(1)(C); see also United States v. Vargas, 804 F.2d 157, 162-63 (1st Cir. 1986).
In order to counter the statutory presumption triggered, the defendant must present evidence which demonstrates that A what is true in general is not true in [his] particular case. @ United States v. *4 Jessup, 757 F.2d 378, 384 (1st Cir. 1985). Notably, the burden is one of production, not of persuasion. Id. at 380-81.
Here, the government and the defendant agreed to conduct the hearing by offers of proof. The government did not argue that defendant was a flight risk. Rather, the government argued that defendant's release would pose a danger to the community. For the reasons stated more fully on the record in this case, I find that the government, aided by the presumption, satisfied its burden of persuading the court that there are no conditions or combination of conditions that will reasonably assure the safety of the community. In so finding, the court stated on the record the factors upon which it relied. I summarize those factors below:
The weight of the government's evidence against the defendant is strong.
The charges involve aiding and abetting drug trafficking, an inherently dangerous activity.
Defendant has a lengthy criminal record. Defendant's criminal history began at age 17, when he was convicted of resisting arrest (X2), shoplifting, robbery (that defense counsel asserted may have been reduced to a charge less serious than robbery for a plea), and sale of a narcotic drug. On the drug sale charge, defendant *5 received a state prison sentence of 1.5-3 years. No more than 5 years following his release from prison on the drug sale charge, defendant was again sent to state prison on a habitual offender charge. At that time, he was also sentenced to serve 12 months, all suspended, for disobeying a police officer.
Upon full consideration of the arguments offered by the government and defense, and for the reasons stated on the record, I am satisfied that the government has met its burden of persuading the court that defendant's release, even on strict conditions, would pose a serious danger to the community. For the reasons listed supra and stated on the record, I find that there are no conditions or combination of conditions that will assure the safety of the community. Accordingly, it is ORDERED that the defendant be
detained pending trial.
The defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections 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 *6 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.
SO ORDERED .
_____________________________ Landya B. McCafferty United States Magistrate Judge Date: October 4, 2010
cc: Stanley W. Norkunas, Esq.
U.S. Attorney
U.S. Probation
U.S. Marshal
