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United States v. Brown

United States District Court, D. New Mexico

July 23, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
JUSTIN BROWN, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT JUSTIN BROWN'S APPEAL OF DETENTION ORDER AND AFFIRMING DETENTION ORDER

         THIS MATTER is before the Court on the Defendant Justin Brown's Appeal of Detention Order, filed May 28, 2019 (Doc. 25). The Court held a hearing on the appeal on June 10, 2019. The Court reviewed the pretrial services report, heard the parties' argument and proffers, and conducted a de novo review of the record. Based on Defendant's representations that the Pretrial Service Report contained errors, the Court directed Probation to review and supplement the Pretrial Services Report. Doc. 34. For the reasons stated below, the Court finds that Defendant's appeal is not well taken and is therefore DENIED.

         BACKGROUND

         United States Magistrate Judge Jerry Ritter held a detention hearing on April 17, 2019. Judge Ritter concluded that Defendant failed to overcome the rebuttable presumption, and ordered Defendant detained pending trial. Doc. 16, 19.

         The Pretrial Services Report recommended that Defendant remain in pretrial detention, and listed several assessments supporting its recommendation that he may be a flight risk or danger to the community. Doc. 14, 35. Defendant challenged the Pretrial Services Report, arguing that it had erred in providing that he (1) uses an alias, and that (2) he had failed to appear at court hearings.

         Upon direction of the Court, Probation supplemented the report. Doc. 35. The supplement provided that Probation further investigated his prior criminal history and determined that he has no history of failing to appear for court hearings.

         LEGAL STANDARD

         The Defendant appeals United States Magistrate Judge Jerry H. Ritter's Order of Detention, pursuant to 18 U.S.C. § 3145(b). The Court reviews the detention order de novo. United States v. Cisneros, 328 F.3d 610, 615 (10th Cir. 2003). “A defendant may be detained pending trial if a judicial officer 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 the community.” United States v. Mobley, 720 Fed.Appx. 441, 443-44 (10th Cir. 2017), citing 18 U.S.C. § 3142(e)(1). “The government bears the burden of proving risk of flight by a preponderance of the evidence and dangerousness to any other person or the community by clear and convincing evidence.” Mobley, 720 Fed.Appx. at 443-44 (internal citations omitted), citing United States v. Cisneros, 328 F.3d 610, 615 (10th Cir. 2003).

         Under 18 U.S.C. § 3142(g), the court must consider four factors as part of the evaluation: “(1) the nature and circumstances of the offense charged”; “(2) the weight of the evidence against the person”; (3) “the history and characteristics of the person”; 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).

         DISCUSSION

         A. Rebuttable Presumption.

         The drug distribution charges against Defendant establish a rebuttable presumption “that no condition or combination of conditions will reasonably assure [his appearance] as required and the safety of the community.” 18 U.S.C. § 3142(e)(3)(A). Defendant bears the burden of producing evidence to rebut the presumption. See United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). “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. At the same time, “the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.” Id. at 1354-55; see generally United States v. Villapudua-Quintero, 308 Fed.Appx. 272, 273 (10th Cir. 2009). Defendant was indicted by grand jury, and the Government's proffer provides that Defendant was on video participating in narcotics sales. This is sufficient to establish probable cause, and therefore the rebuttable presumption arises. See 18 U.S.C. § 3142(e)(3)(A) (presumption of detention arises when “there is probable cause to believe that the person committed” a listed offense); United States v. Silva, 7 F.3d 1046, 1046 (10th Cir. 1993) (“The grand jury indictment is sufficient to establish the finding of probable cause that defendant committed a federal drug offense with a maximum prison term of ten years or more.”)

         Defendant presented some evidence that he is not a flight risk. He showed that he has appeared at prior hearings and has never received a bench warrant. See Doc. 35 (supplement to pretrial services report). This is sufficient to rebut the presumption that he is a flight risk.

         However, as United State Magistrate Judge Ritter found, Defendant has not presented any evidence that any combination of conditions will reasonably assure the safety of the community. At the appeal hearing, Defendant proposed that he be released to the third-party custody of his wife and be subject to substance abuse testing, but there is nothing in that proposal that would reasonably assure the safety of other people or the community. Rather, because of his substance abuse issues, Defendant has previously been kicked out of that home for the well-being of their children. Therefore, Defendant has failed to rebut the presumption that he is a danger to the community.

         B. Section ...


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