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United States v. Galloway

United States District Court, D. New Mexico

March 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CORNELIUS GALLOWAY, et al., Defendants.

          MEMORANDUM OPINION AND ORDER DENYING CORNELIUS GALLOWAY'S APPEAL OF DETENTION ORDER

          WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Cornelius Galloway's Appeal of Detention Order, filed November 21, 2017 (Doc. 108). The Court directed Pretrial Services to update the Pretrial Services report and then directed Defendant to proffer evidence that shows he could rebut the presumption of detention. See Docs. 124, 158. This matter was fully briefed on February 16, 2018. Upon reviewing the pretrial services report, the briefing, and Defendant's proffer, the Court finds that Defendant's appeal is not well taken and is therefore DENIED.

         BACKGROUND

         On November 15, 2017, a grand jury returned a second superseding indictment charging Defendant with conspiracy, three counts of sex trafficking by means of force, threats, or coercion, and sex trafficking of a minor. Doc. 103. The charge of conspiracy pursuant to 18 U.S.C. § 371 includes as overt acts the murders of D.Y. and T.S.

         Defendant appeared at a detention hearing before the Magistrate Judge William Lynch on May 22, 2017. Defendant waived his right to a detention hearing and agreed to be detained, but reserved the right to petition the court to review his detention. See Doc. 27. Magistrate Judge Lynch found that Defendant knowingly and voluntarily waived his right to a detention hearing and agreed to be detained. Doc. 150. The waiver and detention ordered were filed that same day.

         In his Notice of Appeal, Mr. Galloway requested an evidentiary hearing. Doc. 108 Defendant sought to cross-examine two detectives on the evidence connecting the defendant to the two murders.[1] Defendant asserts this evidence falls under two of the statutory factors in the Bail Reform Act, the “nature and circumstances of the offense” and “weight of the evidence.” Defendant requested release to the La Pasada Halfway House, and agreed to electronic monitoring.

         After conducting a status conference on December 14, 2017, the Court ordered Pretrial Services to update the Pretrial Services Report. Since it was unclear how Defendant intended to rebut the presumption, the Court also ordered Defendant to proffer the evidence he would present at a hearing. Pretrial Services filed an updated Pretrial Services Report on January 2, 2018. In his supplemental brief filed on January 26, 2018, Defendant detailed the evidence he intended to elicit at the cross examination of Detective Matthew Volmer and Detective Jodi Gonterman. This matter was fully briefed on February 16, 2018.

         DISCUSSION

         I. Hearing on Notice of Appeal pursuant to 18 U.S.C. § 3145(b).

         Defendant filed a Notice of Appeal of the detention order. A district judge reviews an appeal of a detention order pursuant to 18 U.S.C. § 3145(b).[2] There is no statutory requirement to hold a hearing on an appeal pursuant to § 3145. Moreover, the Federal Rules of Evidence do not apply to a detention hearing. Fed.R.Evid. 1101(d).

         Generally, a district judge has the discretion to determine how to hear evidence or whether to hold a hearing pursuant to § 3145. United States v. Cisneros, 328 F.3d 610, 617 (10th Cir. 2003) (“Although in conducting her de novo review Judge Armijo considered the evidence submitted during the Arizona hearing, she also held her own hearing to consider new evidence from the parties, as was her prerogative.”); see also United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990) (“[The District Court] should review the evidence before the magistrate and make its own independent determination whether the magistrate's findings are correct, with no deference. If the performance of that function makes it necessary or desirable for the district judge to hold additional evidentiary hearings, it may do so, and its power to do so is not limited to occasions when evidence is offered that was not presented to the magistrate.”); United States v. Dominguez, 783 F.2d 702, 708 n.8 (7th Cir. 1986). This includes the discretion to hear a proffer. See, e.g., United States v. Bustamante-Conchas, 557 Fed.Appx. 803, 804 n.1 (10th Cir. 2014) (detention determination made on assertions of parties without testimony or evidence). “The standard of review for the district court's review of a magistrate judge's detention or release order under § 3145(a) is de novo.” Cisneros, 328 F.3d at 616 n. 1.

         The Court finds this matter is a fishing expedition and without merit. Defendant primarily wishes to test the Government's evidence of his involvement in the murder charges through cross-examination of the detectives. The Court will not hold a hearing for that purpose. As explained below, since his proffer does not tend to rebut the presumption, and the Government otherwise carried its burden of persuasion on the undisputed evidence, the Court declines to hold a hearing.

         II. Rebuttable Presumption.

         A. Rebuttable Presumption Arises.

         Count 6 of the Second Superseding Indictment (Doc. 103), sex trafficking of a minor (18 U.S.C. § 1591(b)(2)), establishes a rebuttable presumption that “no condition or combination of conditions will reasonably assure the appearance of the person and the safety of the community.” 18 U.S.C. § 3142(e)(3)(E). Defendant admits the rebuttable presumption applies.

         It is Defendant's burden to produce evidence to rebut the presumption. See United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991). “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.” Id. at 1355. “However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” Id. at 1354. See also United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986) (“The presumption is “rebutted” when the defendant meets a burden of production by coming forward with some evidence that he will not flee or endanger the community if ...


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