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United States v. Duran

United States District Court, D. New Mexico

July 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY DURAN, also known as “Dizzy, ” Defendant

          MEMORANDUM OPINION AND ORDER

          Judith C. Herrera United States District Judge

         This matter comes before the Court upon defendant's Motion to Revoke Order of Detention Pending Trial [Doc. 55]. After considering that motion, the UNITED STATES' response [Doc. 56] and hearing the parties' arguments and proffers, the Court finds that defendant's motion should be denied.

         I. PROCEDURAL BACKGROUND

         On November 7, 2018, a grand jury of this United State District Court returned an Indictment [Doc. 2] charging that ANTHONY DURAN (and his codefendant wife GLORIA DURAN) conspired with others to distribute one kilogram and more of heroin in violation 21 U.S.C. §§ 846 and 841(a)(1). That same day, the Clerk of the Court issued a warrant [Doc. 3] for the arrest of the defendant. Defendant was arrested and brought before the Honorable United States Magistrate Judge Jerry H. Ritter on November 8, 2018. At that time, defendant was remanded to the temporary custody of the United States Marshal and a detention hearing was scheduled for the morning of November 9, 2018. At the detention hearing on November 9, 2018, defendant did not contest his detention nor rebutted the presumption under § 3142(e)(3)(A). Magistrate Judge Ritter therefore ordered defendant's detention pending trial.

         On June 11, 2019, defendant filed a Motion for Release from Custody [Doc. 45]. Magistrate Judge Ritter heard that motion on July 2, 2019. At the conclusion of that hearing, Magistrate Judge Ritter found by clear and convincing evidence that no condition or combination of conditions would reasonably assure the safety of other persons and the community if defendant was released from custody. Magistrate Judge Ritter accordingly again ordered [Doc. 52] that defendant be detained pending trial.

         Defendant filed his Motion to Revoke Order of Detention Pending Trial on July 3, 2019. The UNITED STATES filed its Response to Motion to Revoke Order of Detention Pending Trial on July 15, 2019. The Court held a hearing on defendant's motion on July 23, 2019.

         II LAW GOVERNING PRETRIAL DETENTION

         Under the Bail Reform Act of 1984, a defendant may be detained pending trial only if, after a hearing, 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.” 18 U.S.C. § 3142 (e).

         The prosecution bears the burden of proving risk of flight by a preponderance of the evidence and dangerousness to any other person or to the community by clear and convincing evidence. However, the charge in the Indictment that defendant committed an offense under the Controlled Substances Act for which a term of a term of imprisonment of ten years or more is authorized triggers a presumption under the Bail Reform Act that no condition or combination of conditions will reasonably assure the appearance of a defendant and the safety of the community. See 18 U.S.C. § 3142(e)(3)(A). While the government bears the burden of persuasion as to both risk of flight and danger to the community, the burden of production shifts to the defendant once the statutory presumption is invoked. See United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991). If a defendant meets the burden of production, the presumption remains a factor for consideration in determining whether to detain a defendant. See Stricklin, 932 F.2d at 1354-55; United States v. Hare, 873 F.2d 796, 798-799 (5th Cir.1989) (“[T]hat presumption is not a mere ‘bursting bubble' that totally disappears from the judge's consideration after the defendant comes forward with evidence. . . . Thus the mere production of evidence does not completely rebut the presumption, and in making its ultimate determination, the court may still consider the finding by Congress that drug offenders pose a special risk of flight and dangerousness to society”).

         Defendant has rebutted the presumption under 18 U.S.C. § 3142(e)(3)(A). That, however, is not the end of the Court's inquiry. The Bail Reform Act identifies several factors that are to be considered in determining whether a defendant should be detained pending trial.

Factors to be considered.--The judicial officer shall, 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, 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, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
2) the weight of the evidence against the person;
3) the history and characteristics of the person, ...

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