U.S. v. Gibson

• Decision Date: 09 February 2007
• Docket Number: Criminal No. 06-243.
• Citation: 481 F.Supp.2d 419
• Parties: UNITED STATES of America, v. Lamar M. GIBSON, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

481 F.Supp.2d 419

UNITED STATES of America, v. Lamar M. GIBSON, Defendant.

Criminal No. 06-243.

United States District Court, W.D. Pennsylvania.

February 9, 2007.

Troy Rivetti, United States Attorney's Office, Pittsburgh, PA, for United States of America.

Jay J. Finkelstein, Federal Public Defender's Office, Pittsburgh, PA, for Lamar M. Gibson.

MEMORANDUM ORDER

CONTI, District Judge.

Defendant requested hearing on grant of pretrial detention for defendant Lamar M. Gibson issued by a magistrate judge. After a de novo review of the pleadings, in this case, a pretrial services report, the arguments of counsel, and a hearing at which proffers of evidence were presented this court will deny defendant's request for bail and order defendant Lamar M. Gibson detained without bond pending trial.

Standard

The court's standard of review for reviewing a magistrate judge's decision regarding bail is de novo. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir.1985).

Facts

Defendant was indicted by a grand jury for serious drug offenses, including one under 18 U.S.C. § 841(b)(1)(B)(iii) that provides a maximum sentence of life imprisonment with a mandatory minimum sentence of at least ten years imprisonment. (Docket No. 1). The alleged offenses occurred on June 17, 2005, June 28, 2005 and August 6, 2005. On each of those dates, a confidential informant made a controlled purchase from defendant for varying amounts of crack cocaine. After the confidential informant made the controlled purchases, the government executed a search warrant on defendant's residence. The search yielded 60 grams of crack cocaine and $14,000 in cash. The recovered cash included buy money paid to defendant by the confidential informant.

With respect to defendant's background, defendant had a meaningful employment history at hourly paid jobs ranging from $6 to $7.50 per hour. Defendant has family ties in Western Pennsylvania. Defendant, however, has had extensive interaction with the criminal justice system and committed various drug crimes while he was under state court supervision. The government conceded that defendant is not a flight risk.

Discussion

The structured system of the Bail Reform Act, 18 U.S.C. §§ 3141 et seq., regarding the release or detention of a defendant before trial seeks to ensure that the interests of the defendant and the public are carefully considered and contemplated before release or detention is ordered. See United States v. Lemos, 876 F.Supp. 58, 59 (D.N.J.1995). The court is charged with determining whether there exists "any condition or combination of conditions set forth in [18 U.S.C. § 3142(c)] that will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community...." 18 U.S.C. § 3142(f). See also Lemos, 876 F.Supp. at 59 (stating that "[a] condition precedent to detention without bail under subsection (e) is that a hearing be held as provided in subsection (f).").

Section 3142(c)(1)(B) of the Bail Reform Act sets forth a nonexclusive list of conditions that a court may impose upon granting a defendant's motion for pretrial release. If no sufficient condition or combination of conditions exists, however, the court may order that a defendant be detained without bail pending trial.

Section 3142(e) of the Bail Reform Act provides, in pertinent part:

If, after a hearing pursuant to the provisions of subsection (f), ... the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of any other person and the community, such judicial officer shall order the detention of the [defendant] before trial.

. . . . .

Subject to rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the [defendant] committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act, 21 U.S.C. § 801 et seq

18 U.S.C. § 3142(e).

A grand jury indictment for offenses proscribed by 21 U.S.C. § 841(a)(1) provides probable cause to believe that a defendant has committed an offense for which he may receive a sentence of imprisonment for ten or more years for violation of the Controlled Substances Act, 21 U.S.C. § 801 et seq. See, e.g., United States v. Suppa, 799 F.2d 115, 119 (3d Cir.1986).

In this case, the rebuttable presumption set forth in section 3142(e) applies because defendant was indicted by a grand jury for, inter alia, distribution and possession with the intent to distribute 50 grams or more of cocaine base, in the form commonly known as crack. (Docket No. 1). Defendant has at least two (2), and possibly three (3), prior felony drug convictions. As a result of these convictions, defendant faces a minimum term of imprisonment of twenty years and possibly a mandatory sentence of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). Thus, subject to rebuttal by defendant, it is "presumed 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).

Here, since the government concedes that defendant is not a flight risk, the issue is whether defendant rebutted the presumption that no condition or combination of conditions will reasonably assure the safety of the community if defendant is released pending trial.

Safety of the community is implicated not only by violence, but also by narcotics trafficking. In cases involving the instant drug offenses, the danger to the community is the likelihood that the defendant will, if released, traffic in illicit drugs. See United States v. Perry, 788 F.2d 100, 111 (3d Cir.1986)(danger to community arises from the likelihood that the defendant will, if released, commit one of the proscribed federal offenses). Cf. United States v. Strong, 775 F.2d 504, 507 (3d Cir.1985)(statutory language unequivocably establishes that Congress intended to equate traffic in drugs with a danger to the community).

A defendant must produce only "some evidence" to rebut the presumption set forth in section 3142(e). United States v. Jessup, 757 F.2d 378, 384 (1st Cir.1985). The quantum of evidence required to rebut the presumption is not high. Rather, the defendant need only come forward with credible evidence conflicting with the presumption. Id. at 383. When a defendant produces conflicting evidence the presumption, however, does not disappear. The burden of persuasion remains on the government and the rebutted presumption retains evidentiary weight. See United States v. Carbone, 793 F.2d 559, 560-61 (3d Cir.1986)(per curiam). See also United States v. Dillon, 938 F.2d 1412, 1416 (1st Cir.1991); United States v. Palmer-Contreras, 835 F.2d 15,18 (1st Cir.1987)(per curiam).

In producing evidence to rebut the presumption, a defendant looks to the four factors which the court must consider in determining whether pretrial detention is warranted. See United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.2001) (to determine whether the presumption of dangerousness has been rebutted, the court should consider the factors set forth in 18 U.S.C. § 3142(g)). The four factors are: (1) the nature and seriousness of the offense charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the person including, inter alia, character, employment, family ties, community ties, length of residence in the community and criminal history, whether at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, 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 defendant's release. 18 U.S.C. § 3142(g).

The court concludes that defendant failed to rebut the presumption that no condition or combination of conditions would reasonably ensure the safety of the community if he is released, and even if he had rebutted the presumption, the government, by clear and convincing evidence, persuaded the court that no condition or combination of conditions would reasonably ensure the safety of the community if defendant were to be released. If the presumption is rebutted, the facts employed to support a detention must "be supported by clear and...