U.S. v. Burks

• Decision Date: 02 February 2001
• Docket Number: No. 00-40115-01-SAC.,00-40115-01-SAC.
• Parties: UNITED STATES of America, Plaintiff, v. George Earl BURKS, Jr., Defendant.
• Court: U.S. District Court — District of Kansas

141 F.Supp.2d 1283

UNITED STATES of America, Plaintiff, v. George Earl BURKS, Jr., Defendant.

No. 00-40115-01-SAC.

United States District Court, D. Kansas.

February 2, 2001.

Randy M. Hendershot, Office of U.S. Attorney, Topeka, KS, for U.S.

Ronald E. Wurtz, Office of Fed. Public Defender, Topeka, KS, for defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

The case comes before the court on the defendant George Earl Burks' Appeal of Detention Order (Dk.19), Request for Additional Time to File Discovery Motions (Dk.21), Notice of Demand for Evidence pursuant to Fed.R.Evid. 404(b) and 807 (Dk.22), and Motion to Disclose Expert Testimony pursuant to Fed.R.Crim.P. 16(a)(1)(E) (Dk.23). The government has filed its responses (Dks. 24 and 25), agreeing to provide notice pursuant to Rules 404(b) and 807 and to make additional disclosures of expected testimony from its expert witnesses with the exception of Kansas Bureau of Investigation ("KBI") chemist. The government, however, does oppose the defendant's appeal of the detention order. On February 1, 2001, the court heard counsels' presentations and arguments. Having reviewed and considered all submitted matters, the court is ready to rule.

PROCEDURAL BACKGROUND

George Burks is the only defendant named in a six-count indictment filed November 29, 2000. The indictment charges Burks with having distributed cocaine base on five separate occasions between August 25, 2000, and November 1, 2000, all in violation of 21 U.S.C. § 841(a)(1). The remaining count charges Burks with possessing and carrying a firearm during and in relation to the drug trafficking crime of distributing cocaine base on October 31, 2000, in violation of 18 U.S.C. § 924(c)(1)(A).

On December 7, 2000, the defendant was served with the arrest warrant, and he appeared the same day for his arraignment and plea. The government moved for detention, and the magistrate judge entered an order of temporary detention pending a hearing. On December 11, 2000, the magistrate judge heard arguments and proffers, as well as the testimony of Special Agent Jeffrey Brandau with the Kansas Bureau of Investigation. The magistrate judge granted the government's motion for detention and found by clear and convincing evidence that no combination of conditions would reasonably assure the safety of the community and Agent Brandau if the defendant were released pending trial. (Dk.12).

STANDARD OF REVIEW

By statute, 18 U.S.C. § 3145(b), a defendant detained by a magistrate judge may seek review before the district court. The district court conducts a de novo review of the magistrate judge's order. United States v. Carlos, 777 F.Supp. 858, 859 (D.Kan.1991); see United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). The district court must make its own de novo determination of the facts with no deference to the magistrate judge's findings. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir.1990); United States v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987). In the same vein, the district court ultimately must decide the propriety of detention with no deference to the magistrate judge's conclusion. Id.

De novo review does not require a de novo evidentiary hearing. United States v. Alonso, 832 F.Supp. 503, 504 (D.Puerto Rico 1993); United States v. Bergner, 800 F.Supp. 659, 661 (N.D.Ind. 1992); see United States v. Koenig, 912 F.2d at 1193. The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence. United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991). The district court may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. United States v. Chagra, 850 F.Supp. 354, 357 (W.D.Pa.1994); see United States v. Messino, 842 F.Supp. 1107, 1109 (N.D.Ill.1994). The district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.; Bergner, 800 F.Supp. at 661.

CONTROLLING LAW

Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., the court must order an accused's pretrial release, with or without conditions, unless it "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 community." See 18 U.S.C. § 3142(b),(c), and (e). In making this determination, the court is to consider "the available information" on the following factors: the nature and circumstances of the offense, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence; the history and characteristics of the person; and the nature and seriousness of the danger to any person or the community posed by a release on conditions. 18 U.S.C. § 3142(g).

The Bail Reform Act, specifically 18 U.S.C. § 3142(e), recognizes a rebuttable presumption of risk of flight or danger to the community upon a finding "that there is probable cause to believe that the person committed an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act (21 U.S.C. §§ 801 et seq.) ... or an offense under § 924(c), ... of title 18 of the United States Code." A grand jury indictment charging such an offense is enough to trigger this presumption. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir.1991); United States v. Walters, 89 F.Supp.2d 1217, 1220 (D.Kan.2000). The presumption operates as follows:

Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. 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.

Stricklin, 932 F.2d at 1354-55 (citations omitted). If invoked by the government, the rebuttable presumption would apply here, because counts one, two, three, four and six charge drug offenses that carry maximum terms of imprisonment of ten years or more. In addition, count five charges a violation of 18 U.S.C. § 924(c) that also triggers the rebuttable presumption. The defendant's "`burden of production ... is to offer some credible evidence contrary to the statutory presumption.'" United States v. Walters, 89 F.Supp.2d at 1220 (quoting United States v. Miller, 625 F.Supp. 513, 519 (D.Kan.1985)).

At all times, the burden of proof remains with the government to show there is no condition or combination of conditions that would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community. The government must prove risk of flight by a preponderance of the evidence. United States v. Walters, 89 F.Supp.2d at 1220-21 (citing in part United States v. King, 849 F.2d 485, 489 (11th Cir.1988), and United States v. Orta, 760 F.2d 887, 891 (8th Cir.1985)). The government must prove dangerousness to any other person or the community by clear and convincing evidence. King, 849 F.2d at 485 n. 3; 18 U.S.C. § 3142(f). Evidence is clear and convincing if it gives the factfinder "an abiding conviction that the truth of ... [the] factual contentions are `highly probable.'" Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (quoting C. McCormick, Law of Evidence § 320, p. 679 (1954)).

ANALYSIS AND RULING

The court bases its ruling on the evidence and arguments presented to the magistrate judge as well as the additional submissions and arguments advanced in this review of the detention order. The defendant argues first that the magistrate judge erred in finding that he had not rebutted the presumption in 18 U.S.C. § 3142(e) and in imposing a burden of production more difficult than that contemplated in the Act. The defendant next contends that the magistrate judge erroneously found this case to involve a "crime of violence" for purposes of 18 U.S.C. § 3142(f)(1)(A). Finally, the defendant challenges the magistrate judge's examination of the factors in 18 U.S.C. § 3142(g).

As stated above, the indictment charges offenses triggering the rebuttable presumption. The government invokes the presumption without objection from the defendant. The court finds the defendant's proffers before the magistrate judge and before this court are sufficient to rebut this presumption. The defendant must produce some credible evidence "`to suggest'" that he is not dangerous to the community and, in particular, to Special Agent Jeffrey Brandau. See United States v. Walters, 89 F.Supp.2d at 1220 (quoting United States v. Quartermaine, 913 F.2d 910, 916 (11th Cir.1990)). The defendant proffers that he sold only small quantities of drugs, that he lacks resources and contacts to aid him in fleeing, that he is a first-time offender with no violent criminal history, that he was caught up in the moment and showing off to peers when he threatened Brandau, that he has employment waiting for him in his father's restaurant, and that he has the support of his family living in this area and in Louisiana. The court proceeds to determine whether there are conditions that will reasonably assure the safety of the community and, in particular, the safety of Special Agent Jeffrey Brandau.

Nature and Circumstances of the Offense

The defendant is charged with having sold cocaine base to an undercover government agent on five different occasions over a span of little more than two months. On one of those occasions, the defendant was seen in possession of a pistol. This weapon is the subject of the 18 U.S.C. § 924(c)...