United States v. Covington, CRIMINAL ACTION NO. 2:14-cr-00006

• Decision Date: 07 February 2014
• Docket Number: CRIMINAL ACTION NO. 2:14-cr-00006
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DONALD COVINGTON, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. DONALD COVINGTON, Defendant.

CRIMINAL ACTION NO. 2:14-cr-00006

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

ENTER: February 7, 2014

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendant Donald Covington's motion to revoke [ECF 14] the detention order entered by United States Magistrate Judge Dwane L. Tinsley on January 7, 2014. For the reasons that follow, the motion is DENIED.

I. BACKGROUND

On December 20, 2013, a criminal complaint was filed charging Defendant with knowingly and intentionally distributing a quantity of heroin in violation of 21 U.S.C. § 841(a)(1). (ECF 1.) Thereafter, an arrest warrant was issued (ECF 2) and Defendant was arrested (ECF 8).

On December 31, 2013, the Government filed a motion to detain, in which it invoked the statutory rebuttable presumption under 18 U.S.C. § 3142(e) that there were no conditions or combination of conditions that would reasonably assure the safety of any other person and the community if Defendant was to be released on bond. (ECF 3 at 2.) The Government assertedthat the presumption applied because there was probable cause to believe that Defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act. See 18 U.S.C. § 3142(e)(3)(A).

On the same date, Defendant appeared for an initial appearance on the criminal complaint, (ECF 5 at 1) and the Magistrate Judge set a date for a preliminary hearing and a detention hearing and remanded Defendant to the custody of the United States Marshal pending these hearings (ECF 5 at 2).

In preparation for the preliminary and detention hearings, a pretrial services report ("PTS Report") was prepared by the United States Probation Office assessing Defendant's criminal history and personal background, including information about certain medical conditions from which Defendant suffered. (PTS Report at 2-3.)

On January 6, 2014, Defendant appeared before the Magistrate Judge for a preliminary hearing and a detention hearing. (ECF 9.)

The Magistrate Judge first conducted the preliminary hearing. The Government called a sergeant from the Kanawha County Sheriff's Department who testified regarding the investigation of Defendant with respect to the charge in the criminal complaint. (Preliminary and Detention Hearings Audio Recording at 2:49-6:25.) Specifically, the sergeant described a controlled buy in which a confidential informant purchased from Defendant a substance that field-tested positive for the presence of heroin and recorded the transaction with audio and video. (Id. at 3:40-6:02.) Defendant cross examined this witness, but did not otherwise introduce evidence. (Id. at 6:35-10:35.) The Magistrate Judge found that based upon the sergeant's testimony there was probable cause to believe that Defendant committed the violation contained in the complaint. (Id. at 10:35-10:56.)

Immediately thereafter, the Magistrate Judge conducted the detention hearing. (Id. at 11:02-11:08.) The parties acknowledged having had the opportunity to review the PTS Report, and neither party offered additions or corrections to the report, although defense counsel noted that as was his usual practice he was not admitting the accuracy of anything contained in the criminal history section of the report. (Id. at 11:08-11:35.)

Thereafter, the Magistrate Judge noted that the Government had previously filed a motion for a detention hearing and had invoked the rebuttable presumption. (Id. at 11:50-11:56.)

Defendant contested detention, and presented evidence by way of proffer. (Id. at 11:56-12:05) Specifically, defense counsel explained to the Court that Defendant had been a member of the local community for approximately three years, had held employment through a temporary staffing agency at a number of places over this period of time, and that Defendant believed that he could return to employment through this agency if he was released on bond. (Id. at 12:09-12:33.) Defense counsel further explained that Defendant had an apartment in Dunbar, West Virginia, that he could return to if released on bond. (Id. at 12:33-12:40) Finally, to ensure that he appeared and that his release would not pose a risk of danger to others in the community, defense counsel further offered that Defendant was willing to submit to home confinement and have a phone installed at the residence for purposes of electronic monitoring. (Id. at 12:44-13:15.) Defense counsel made no mention of Defendant's medical conditions, and did not argue that Defendant's health or need for medical care counseled against detention.

In response, the Government initially observed that it did not believe that Defendant had rebutted the presumption for detention. (Id. at 13:19-13:22.) The Government further proffered that in addition to the transaction that was the subject of the criminal complaint, there were two additional controlled buys that occurred at Defendant's Dunbar residence. (Id. at 12:23-13:32.)After the last controlled buy, a search was conducted and officers found four firearms inside the home, including two 9 mm pistols, a rifle, and an automatic 12-gauge shotgun, in addition to two loaded 9 mm magazines. (Id. at 13:33-13:55) There was also additional heroin, suspected cocaine, and buy money recovered from the residence. (Id. at 13:56-14:00.) Accordingly, the Government argued, the Defendant should not be allowed to return to that residence and that he was a danger to the community. (Id. at 14:00-14:08.)

In rebuttal, defense counsel noted that to the extent that such items were found at Defendant's residence, they were no longer there for the Defendant to use in any criminal conduct, and so that would not be a basis for denying his request for home confinement. (Id. at 14:15-14:30.)

Thereafter, the Magistrate Judge reviewed the factors under 18 U.S.C. § 3142(g) and evaluated the proffers made by counsel and the information contained in the pretrial services report and found by a preponderance of the evidence that Defendant was a risk of flight¹ and found by clear and convincing evidence that Defendant was a danger to the community. (Id. at 14:34-16:36.) Therefore, the Court found, there were no conditions or combinations of conditions that existed to reasonably assure Defendant's appearance as required and the safety ofthe community, and ordered Defendant detained. (Id. at 16:38-16:55.) The Magistrate Judge entered a written Detention Order (ECF 13), as well as an Order memorializing the findings and holdings made at both the preliminary and detention hearings (ECF 12).

On January 17, 2014, Defendant filed a "Motion to Revoke Detention Order," (ECF 14) to which the Government responded on January 22, 2014 (ECF 15).

II. CHARACTERIZING DEFENDANT'S MOTION

Initially, the Court observes that Defendant's motion does not cite the authority under which he seeks relief. (ECF 14.) The Government argues (ECF 15 at 1) that Defendant seeks a re-examination of the order of detention pursuant to 18 U.S.C. § 3142(f), which statute provides that a detention hearing

may be reopened . . . if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issues whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.

Following this characterization, the Government argues that Defendant's motion should be denied because Defendant has presented no new evidence that was not known to him at the time of his initial detention hearing. (ECF 15 at 2, 4.) The Court, however, differs with the Government's characterization of Defendant's motion.

Section 18 U.S.C. § 3145(b) provides, in pertinent part, that "(i)f a person is ordered detained by a magistrate judge . . . the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order." (Emphasis added.)

Defendant's motion is captioned "Motion to Revoke Detention Order," and the argument contained therein is principally that the Magistrate Judge's decision was in error because the evidence that was before the Magistrate Judge counseled against detention—not that informationwith material bearing on the appropriateness of relief now exists but was not known to Defendant at the time of the hearing. (ECF 14 at 1-2.) Indeed, with the exception of one assertion that has no bearing on the Court's decision,² the information presented in Defendant's motion was all either introduced by proffer at the detention hearing or contained in the pretrial services report, which report was available to the parties (Preliminary and Detention Hearings Audio Recording at 11:08-11:35) and relied on by the Magistrate Judge (id. at 14:50-16:15; ECF 13 at 2).

Accordingly, the Court construes Defendant's motion to revoke a detention order under 18 U.S.C. § 3145(b), and not as a motion to re-open his detention hearing pursuant to 18 U.S.C. § 3142(f).

III. STANDARD OF REVIEW AND GOVERNING LA W

"When the district court acts on a motion to revoke or amend a magistrate judge's pretrial detention order, the district court acts de novo and must make an independent determination of the proper pretrial detention or conditions of release." United States v. Stewart, 19 F. App'x 46, 48 (4th Cir. 2001) (per curium) (unpublished) (citing United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992)); cf. United States v. Shrader, 1:09-cr-00270, 2010 WL 503092 *1 (S.D. W. Va. Feb. 8, 2010) (observing that the district court need not hold a second detention hearing when reviewing a motion under 18 U.S.C. § 3145(b)).

Pursuant to 18 U.S.C. § 3142(b) & (c), the Court must order the pretrial release on bond of a person, subject to certain specified statutory conditions, unless the court finds that...