Case No. 18-CR-00466-PAB-1
FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
This matter came before the Court for detention hearing on November 7, 2018. The Court has taken judicial notice of the Court's file and the Pretrial Services Report. Moreover, the Court has considered the proffers by the defendant and the government, and arguments of counsel.
In order to sustain a motion for detention, the government must establish that (a) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the defendant's presence for court proceedings; or (b) there is no condition or combination of conditions which could be imposed in connection with pretrial release that would reasonably insure the safety of any other person or the community. The former element must be established by a preponderance of the evidence, while the latter requires proof by clear and convincing evidence.
The Bail Reform Act, 18 U.S.C. § 3142(g), directs the court to consider the following factors in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community:
(1) [t]he nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including -
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
The government is requesting detention in this case. In making my findings of fact, I have taken judicial notice of the information set forth in the Pretrial Services Report and the entire court file. I find the following:
First, the defendant has been charged with felon in possession of a firearm, a violation of 18 U.S.C. §922(g)(1).
Second, according to the Pretrial Services Report, the defendant has an extensive criminal history, and most significant to the Court, an extensive history of failing to appear at scheduled court hearings, and a history of committing additional offenses while on probation or while on release. The current offense was allegedly committed while on active parole. The defendant has had seven terms of probation revoked, four terms of parole revoked, three warrants issued for failing to comply with court orders, absconded on two terms of parole and currently has a parole hold.
The defendant also describes himself as an addict, and has a problem with alcohol. He has completed multiple drug or alcohol treatment programs, including drug court, but still has a substance abuse problem. He has also been twice convicted of Felony Menacing-Real/Simulated Weapon and Resisting Arrest. He has also committed numerous offenses while previously under supervision.
Finally, the Defendant has no present employment and no current income, suggesting a level of instability in his home life that would not be conducive to staying out of trouble if released under supervision.
Given his history and the nature of the current offense, and in particular the fact that it was committed while the defendant was under parole supervision for a state offense, I find by clear and convincing evidence that he is a flight risk and that there is no condition or combination of conditions of release that will reasonably assure his presence in court. I also find, by clear and convincing evidence, that no condition or combination of conditions could be imposed what would reasonably insure the safety of the community. Accordingly, I order that the defendant be detained without bond.
DATED and ENTERED this 7th day of November, 2018
BY THE COURT
s/ N. Reid Neureiter
N. Reid Neureiter
U.S. Magistrate Judge