Filed: Jul. 19, 2017
Latest Update: Jul. 19, 2017
Summary: FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION MICHAEL J. WATANABE , Magistrate Judge . This matter is before the court for detention hearing on July 19, 2017. The court has taken judicial notice of the court's file. In addition, the court has considered the proffers by the government and defendant. 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 connecti
Summary: FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION MICHAEL J. WATANABE , Magistrate Judge . This matter is before the court for detention hearing on July 19, 2017. The court has taken judicial notice of the court's file. In addition, the court has considered the proffers by the government and defendant. 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 connectio..
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FINDINGS OF FACT, CONCLUSIONS OF LAW and REASONS FOR ORDER OF DETENTION
MICHAEL J. WATANABE, Magistrate Judge.
This matter is before the court for detention hearing on July 19, 2017. The court has taken judicial notice of the court's file. In addition, the court has considered the proffers by the government and defendant.
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.
If there is probable cause to believe that the defendant committed an offense which carries a maximum term of imprisonment of over 10 years and is an offense prescribed by the Controlled Substances Act, a rebuttable presumption arises that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.
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 entire court file, and have considered the proffer submitted by the government and defense counsel and the arguments of counsel.
Weighing the statutory factors set forth in the Bail Reform Act, I find the following:
First, the defendant has been charged in the Indictment as follows:
COUNT ONE: 21 U.S.C. § 841(a)(1), (b)(1)(A) and 846 — knowingly and intentionally combine, conspire, confederate and agree with each other and with other persons, both known and unknown to the Grand Jury, to possess with the intent to distribute and to distribute a quantity of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance
COUNTS TWO, FOUR AND FIVE: 18 U.S.C. § 922(g)(1) — Possession of a weapon by a convicted felon
COUNT THREE: 21 U.S.C. § 841(a)(1) and (b)(1)(A) — knowingly and intentionally possess with the intent to distribute, and distribution of a quantity of 50 grams or more of methamphetamine, its salts, isomers and salts of its isomers, commonly referred to as pure methamphetamine or methamphetamine (actual), a Schedule II controlled substance
NOTICE OF FORFEITURE
Second, based upon the Indictment, I find probable cause exists as to the above listed crimes.
Third, I find that defendant has an active protection order against him from any contact with his common law wife Stephanie Gallardo and their two sons out of the Adams County Combined Court, Case No. 2017-M-2241. The protection order further requires that defendant move out of the family residence. This protection order was to expire on June 5, `, but the NCIC records reflect the protection order is active according to the pretrial services report. Defendant has a history of alcohol and marijuana use which dates back to when he was a teenager. Defendant has used at least five alias names, one alias date of birth, and one alias social security number in the past. Defendant has been a member of the GKI [Galant Knights Insane] Gang in the past. Defendant has suffered eleven prior failures to appear; three prior failures to pay; and three prior failures to comply all resulting in warrants being issued. Defendant has had both his regular probation and his ISP [intensive supervision probation] revoked in the past.
Fourth, I find that defendant has suffered a juvenile adjudication for Theft Less Than $100 (misdemeanor). Defendant has further suffered adult convictions for Menacing with the Deadly Weapon (felony); Third Degree Assault; Criminal Attempt to Commit Second Degree Kidnaping (felony); Failure to Present Proof of Insurance; Possession of Drug Paraphernalia; and numerous other traffic offenses and infractions as reflected in pages 4-11, inclusive in the pretrial services report dated July 18, 2017. Defendant has a pending criminal case out of the Adams County Combined Court, Case No. 2017-M-2241 wherein the defendant is charged with Criminal Mischief $300-$750 (misdemeanor) and Child Abuse- Knowing/Reckless- No Injury (misdemeanor). Defendant has committed new criminal offenses while on probation in the past.
Fifth, I find that the rebuttable presumption of detention as outlined in 18 U.S.C. § 3142(e)(3) and (f) applies based upon the charges brought against the defendant in the Indictment. The defendant has not rebutted this presumption.
In light of these facts, I find, by clear and convincing evidence, that defendant is both a flight risk and a danger to the community and that no condition or combination of conditions of release will reasonably assure his presence in court and the safety of the community Accordingly, I order that the defendant be detained without bond.
