Opinion
3:21-MJ-2207-HBG
11-16-2021
United States v. Dartavia Devon Smith-Wilson
Part II- Supplemental Statement of the Reasons for Detention
ORDER
In consideration of releasing Defendant pending trial, the Court has weighed the factors set forth in 18 U.S.C. § 3142(g) and finds that the arguments presented at the detention hearing, as well as the Amended Pretrial Services Report (“PSR”) [Defendant Ex. 2] compiled by the United States Probation Office, establishes by clear and convincing evidence that Defendant is a danger to the community, and by a preponderance of the evidence, a risk of non-appearance, for the reasons set forth below.
At the outset, the Court notes that Defendant is charged with Conspiracy to Distribute 100 Grams or More of Heroin in violation of Title 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), Possession with Intent to Distribute 100 Grams or More of Heroin in violation of Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)B), and Possession of Firearms in Furtherance of Drug Trafficking Offenses in violation of Title 18 U.S.C. § 924(c). Due to the crimes charged, a rebuttable presumption applies “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community[.]” 18 U.S.C. § 3142(e)(3)(A). In this respect, the Court found at the Preliminary Hearing on November 10, 2021 that probable cause existed to believe that Defendant has committed an offense under the Controlled Substances Act for which a maximum term of imprisonment of 10 years or more is prescribed and an offense under 18 U.S.C. § 924(c), and thus the rebuttable presumption is applicable.
This presumption places the burden of production with Defendant, while the Government retains the burden of persuasion. United States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010). To satisfy his burden of production, the defendant must present at least some evidence that he is not a danger or a flight risk. Id. Even when the defendant meets the burden of production, the Court must continue to weigh the presumption that detention is appropriate along with the other factors, because “the presumption reflects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial.” Id.
While this “burden of production is not heavy, [the defendant] must introduce at least some evidence.” Id. (internal citation omitted). Here, the Court notes that during the Detention Hearing, Defendant proffered that upon release he could reside with his wife-Mrs. Ronnisha Smith-Wilson who also was offered to serve as a Third-Party Custodian-, his mother-in-law, and the five children shared between Defendant and his wife. Defendant also stated that he would be willing to submit to any reasonable conditions imposed by the Court, including home detention, GPS monitoring, and extensive reporting requirements. Although offering enough to overcome the initial burden of production as to flight risk, Defendant arguably has not overcome the burden of production with respect to the danger he faces to the community. See, e.g., United States v. Taylor, 449 F.Supp.3d 668, 673 (E.D. Ky. 2020) (finding defendant failed to overcome presumption with respect to risk of danger where he merely proffered that if released, he could stay with his cousin, agreed to submit to substance abuse treatment and drug testing, and had strong family ties to the area); United States v. Johnson, No. CR 5:19-177-DCR, 2019 WL 7040618, at *3 (E.D. Ky. Dec. 20, 2019) (finding the defendant had not overcome the presumption by proffering that he could reside with his grandmother and she would report if he violated his conditions); see also United States v. Gwathney-Law, No. 1:15-CR-00030-GNS-1, 2017 WL 2609044, at *2 (W.D. Ky. June 15, 2017) (concluding that the defendant had failed to overcome the presumption in favor of detention even though he was amenable to a third-party custodian arrangement and GPS monitoring, had a stable residence, substantial ties to the community, minimal criminal history, and strong family support).
However, even if the Court were to find that Defendant has overcome the presumption in favor of detention, the Government has still met its burden of persuasion that no condition or combination of conditions would reasonably assure the safety of the community or Defendant's appearance at trial under 18 U.S.C. § 3142(g).
First, the Court considers the nature and circumstances of the charged offense. 18 U.S.C. § 3142(g)(1). As detailed above, Defendant is charged with Conspiracy to Distribute 100 Grams or More of Heroin in violation of Title 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B), Possession with Intent to Distribute 100 Grams or More of Heroin in violation of Title 21 U.S.C. §§ 841(a)(1) and 841(b)(1)B), and Possession of Firearms in Furtherance of Drug Trafficking Offenses in violation of Title 18 U.S.C. § 924(c). Even if Defendant has rebutted the applicable presumption, the presumption remains nonetheless. “The presumption in favor of detention does not vanish simply because a defendant comes forward with evidence to rebut it. Were the presumption to vanish, ‘courts would be giving too little deference to Congress' findings regarding this class.'” United States v. Lattner, 23 Fed.Appx. 363, 364, (6th Cir. 2001) (citing United States v. Martir, 782 F.2d 1141, 1144 (2d. Cir. 1986)), cited in United States v. Taylor, 449 F.Supp.3d 668, 673 (E.D. Ky. 2020). Therefore, the Court finds that the nature and circumstances of the instant offense weigh heavily in favor of detention.
Second, the weight of the evidence of Defendant's dangerousness weighs in favor of detention. 18 U.S.C. § 3142(g)(2). In Stone, the Sixth Circuit clarified that the weight of the evidence against the defendant “goes to the weight of the evidence of dangerousness, not the weight of the evidence of the defendant's guilt.” 608 F.3d at 948. The Sixth Circuit “routinely affirms, on dangerousness grounds, the pre-trial detention of run-of-the-mill drug dealers, even without any indication that the defendant has engaged in violence.” Id. at 947 n.6 (6th Cir. 2010); see also Id. (“[D]rug trafficking is a serious offense that, in itself, poses a danger to the community.”). During the hearing, the Government proffered the Affidavit in Support of an Application for a Criminal Complaint [Government Ex. 1] and witness testimony of DEA Taskforce Officer Jacob Wilson, both detailing the circumstances surrounding the instant drug trafficking charges. The Court notes that there is an overwhelming risk of dangerousness associated with trafficking heroin and fentanyl. See, e.g., United States v. Williams, No. 3:19-CR-187-TAV, 2020 WL 2529356, at *6 (E.D. Tenn. May 18, 2020) (“While the hand-to-hand sales which defendant is charged with committing may not have involved violence, the absence of violence does not diminish the impact of heroin and fentanyl drug trafficking in terms of contributing to opioid addiction and all its attendant harms.”).
Next, the Court must consider a host of factors in regard to the history and characteristics of Defendant. 18 U.S.C. § 3142(g)(3)(A). Many of the Court's findings regarding the history and characteristics of Defendant are based on the PSR. [Defendant Ex. 2]. Defendant was born in Detroit, Michigan 30 years ago. His parents remain in Detroit, but Defendant provides that he maintains a good relationship with them and with his six siblings who all also live in Detroit. Defendant and Mrs. Smith-Wilson married on February 13, 2021. Defendant and Mrs. Smith-Wilson have no children together, but Mrs. Smith-Wilson has four children from a prior marriage while Defendant has one biological child, and they both share custody over Mrs. Smith-Wilson's children and partial custody over Defendant's child. Defendant resided in Michigan most of his life until moving to Tennessee two approximately two years ago. Defendant reported that he had lived in Murfreesboro, Tennessee for a year-and-a-half, and he has now lived at 3205 River Maple Way, Apt. 106B, in Knoxville, Tennessee for three-to-four months. As stated above, Defendant reportedly lives with his wife, mother-in-law, and the five children, and Defendant states he would be welcome to reside there again were the Court to order his release.
Defendant has his General Education Development Degree. Defendant's work history is notably sparse. His is currently unemployed, and his last employment was as a factory worker nine months ago at an unnamed factory in Tennessee. Defendant has reported that he is in excellent physical health, and he suffers from no medical problems. Defendant has denied any mental or emotional health issues. Defendant reported at the hearing that he was a frequent marijuana user with his last use occurring one day prior to his arrest for the instant offense. The Court also notes that members of Defendant's family were present at the hearing to support him, including his wife who served as a witness.
In considering Defendant's criminal history, the Court may consider both actual convictions and mere arrests or charges to assess the Defendant's dangerousness, though the latter will typically weigh less heavily in favor of detention. United States v. Tolbert, Nos. 3:09CR56 & 3:10CR30, 2017 WL 6003075, at *5 (E.D. Tenn. Dec. 4, 2017) (citations omitted). Defendant's criminal history includes various charges and convictions for offenses dating back to at least 2007 when Defendant was 15 years old. Defendant's charges and convictions include ones for Armed and Unarmed Robbery, Burglary, Assault, Malicious Destruction of Building, Assault/Resist/Obstruction of a Police Officer, Weapons Offenses, Drug Possession, and Manufacture/Deliver/Sell of Controlled Substances. The Court notes that there is also currently a State Warrant out for Defendant's arrest on a Flight to Avoid charge from Jasper, Tennessee. The Court is concerned with Defendant's criminal history, especially with the various violent and drug and with the Flight to Avoid charge. The Court finds that the history and characteristics of Defendant represent a mixed factor for him, but overall they still way mostly in favor of detention.
Finally, under the pertinent part of 18 U.S.C. § 3142(g)(4), the Court must consider “the nature and seriousness of the danger to any person or the community that would be posed by the person's release.” The PSR [Defendant Ex. 2] reflects an escalating and continued criminal history, which is of concern to the Court. The Government proposes that Defendant's persistent criminal activities and the nature of the instant charges against him suggest that Defendant presents a serious risk of danger to the community. The United States Probation Office has recommended that Defendant be detained based on his criminal history, the active warrant, and the other issues discussed in this opinion. Therefore, the Court finds that this factor weighs in favor of detention.
Consequently, the Court finds that the evidence and information provided at the hearing established by clear and convincing evidence that Defendant poses a serious risk of danger to the community or another person and by a preponderance of the evidence, a risk of non-appearance. The Court finds that no condition or combination of conditions will reasonably assure the safety of individuals of the community or Defendant's appearance if he were to be released. Therefore, Defendant shall be detained pending trial.