MEMORANDUM AND ORDER DENYING THE GOVERNMENT'S MOTION FOR PRETRIAL DETENTION
KATHERINE A. ROBERTSON, Magistrate Judge.
Defendant Donovan Coombs-Thompson is charged by indictment with two counts of distribution and possession with intent to distribute cocaine base. The government has moved for pre-trial detention, invoking the presumption that applies in drug cases where the potential sentence is ten years or more. 18 U.S.C. § 3142(e)(3)(A). The court held a hearing on the government's motion on February 8, 2018, and, at the conclusion of the hearing, took the government's motion under advisement.
The factors to be considered in determining whether to release a defendant are set forth in 18 U.S.C. § 3142(g) and include the nature and circumstances of the offense charged; the weight of the evidence as to guilt; the history and characteristics of the accused, including family ties, history relating to drug or alcohol abuse, criminal history, record concerning appearances at court proceedings, financial resources and employment; and the nature and seriousness of the danger to any person or the community that would be posed by a release. See 18 U.S.C. § 3142(g).
The government's reasons for moving for pre-trial detention are apparent and carry weight. A federal grand jury has found probable cause to believe that Mr. Coombs-Thompson distributed crack cocaine, an addictive substance that poses danger to the community. He has an open case pending in the Hampden County Superior Court in which he is charged with (but has not been convicted of) serious offenses involving firearms. The current charges are based on conduct that allegedly occurred while he was on pretrial release on the state court charges. The government's case is strong.
In terms of his personal characteristics, Mr. Coombs-Thompson is a young man — 24 years old — whose history of criminal convictions is relatively insignificant. As an adult, his only conviction is for trespassing. A charged of resisting arrest was continued without a finding and dismissed. The charges he presently faces in federal court are for street-level distribution in relatively modest amounts. He is not charged with importing significant amounts of controlled substances into the community or participating in a widespread conspiracy to distribute narcotics. He is not facing a minimum mandatory sentence. Although Mr. Coombs-Thompson's father lives in Florida, the defendant has very strong family ties in this community, where he has lived for his entire life. He resides with his mother and brother and cooperates with a former significant other to contribute to the care of his four-year old son. He has no record of employment, did not finish high school and has no personal financial resources. So far as the court is aware, he does not have a history of alcohol abuse or serious substance abuse.
Notwithstanding the presumption, see 18 U.S.C. § 3142(e)(3)(A), based on the street-level nature of the criminal conduct alleged in the indictment, Mr. Coombs-Thompson's personal background, including strong ties to the community and a comparatively modest criminal history, the court concludes that the defendant has rebutted the presumption of pretrial detention and that there are conditions of supervised release that will reasonably ensure the safety of other persons and the community and his future appearances in court if he is released pending trial. A form of conditions of release for Mr. Coombs-Thompson is attached hereto as exhibit 1. The United States Marshal is ordered to keep Mr. Coombs-Thompson in custody until a surety bond is posted and all other conditions of release, including installation of location monitoring equipment, are satisfied.
ORDER SETTING CONDITIONS OF RELEASE
IT IS ORDERED that the release of the Defendant is subject to the following conditions:
(1) The Defendant shall not commit any offense in violation of federal, state or local law while on release in this case.
(2) The Defendant shall maintain his residence. Defendant shall advise the court, Pretrial Services, defense counsel and the U.S. attorney in writing at least ten days before any proposed change in address and telephone number.
(3) The Defendant shall report as soon as possible, but no later than twenty-four hours after, to the Pretrial Services office any contact with any law enforcement personnel, including, but not limited to, any arrest, questioning, or traffic stop.
(4) Defendant must cooperate in the collection of a DNA sample if the collection is authorized by 42 U.S.C. 14135a.
(5) The Defendant shall appear at all proceedings as required and shall surrender for service of any sentence imposed as directed. The Defendant shall next appear at (if blank, to be notified)
Release on Personal Recognizance or Unsecured Bond
IT IS FURTHER ORDERED that the Defendant be released provided that:
( ) (5) The Defendant promises to appear at all proceedings as required and to surrender for service of any sentence imposed.
( ) (6) The Defendant shall execute an unsecured bond binding the Defendant to pay the United States the sum of dollars ( ) in the event of a failure to appear as required or to surrender as directed for service of any sentence imposed, or for any violation of any condition(s) of release.
Additional Conditions of Release
Upon finding that release by one of the above methods will not by itself reasonably assure the appearance of Defendant and the safety of other persons and the community, it is FURTHER ORDERED that the release of Defendant is subject to the conditions marked below:
( ) (7) The Defendant is placed in the custody of:
(Name of Person/organization) ________________________________________________________
(Address)
(Signature of Custodian) _____________________________________________________________
who agrees (a) to supervise the Defendant in accordance with all conditions of release, (b) to use every effort to assure the appearance of the Defendant at all scheduled court proceedings, and (c) to notify the court immediately in the event the Defendant violates any conditions of release or disappears.
(X) (8) The Defendant shall:
(X) (a) report to Pretrial Services at (413) 785-6935, as directed. If Defendant is required to report by telephone, Defendant shall call from a land line telephone.
(X) (b) execute a bond or an agreement to forfeit upon failing to appear as required, or for any violation of any condition(s) of release, the following sum of money or designated property: ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00).
( ) (c) post with the court the following indicia of ownership of the above-described property: documentation as set forth in "Recommended Procedure for the Posting of Real Property as Security for Defendant's Appearance Bond in Criminal Cases"
( ) (d) execute a bail bond with solvent sureties in the amount of $
(X) (e) maintain/actively seek employment and submit ongoing verification to Pretrial Services as directed or
(X) (f) maintain or commence an education program.
( ) (g) surrender passport to Pretrial Services, without prejudice to requesting it for business travel purposes.
(X) (h) obtain no passport or any other travel documents.
(X) (i) abide by the following restrictions on personal association or travel: Travel is restricted to the state of Massachusetts without prior permission from the Probation and Pretrial Department.
(X) (j) avoid all contact, directly or indirectly, with any persons who are or who may become a victim or potential witness in the subject investigation or prosecution, except through counsel.
(X) (k) undergo medical or psychiatric treatment and/or remain in an institution as follows: as directed by the Probation and Pretrial Department.
( ) (l) return to custody each (week)day as of o'clock after being released each (week)day as of
(X) (m) maintain residence and provide Probation with any new address.
(X) (n) refrain from possessing a firearm, destructive device, or other dangerous weapons. All firearms to be removed from the house forthwith and the same certified to Pretrial Services.
(X) (o) refrain from ( ) any (X) excessive use of alcohol.
(X) (p) refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner.
(X) (q) submit to any method of testing required by the Pretrial Services Officer for determining whether the defendant is using a prohibited substance. Such methods may be used with random frequency and include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. Defendant shall refrain from obstructing or attempting to obstruct or tamper in any fashion with the efficiency and accuracy of any testing which is required as a condition of release.
(X) (r) participate in a program of inpatient or outpatient substance abuse therapy and counseling if deemed advisable by the Pretrial Services Officer.
(X) (s) participate in one of the following home confinement program components. Defendant shall refrain from obstructing or attempting to obstruct or tamper in any fashion with the efficiency and accuracy of any electronic monitoring equipment which is required as a condition of release and shall abide by all the requirements of the home confinement program which (X ) will or ( ) will not include the following location verification system: (X) electronic monitoring bracelet OR ( ) Voice Identification system:
(X) (i) Curfew. You are restricted to your residence every day (X) from 7:00 p.m. to 7:00 a.m, or ( ) as directed by the Pretrial Services Officer; or,
( ) (ii) Home Detention. You are restricted to your residence at all time except as pre-approved by the court; or,
( ) (iii) Home Incarceration. You are restricted to your residence at all times except as pre-approved by the court.
( ) (t) make payments toward a fund which can ultimately be used to compensate appointed counsel, as required in the companion order issued in this matter pursuant to 18 U.S.C. § 3006A.
(X) (u) submit to the location monitoring installed in the home by Probation and Pretrial Services and abide by all of the program requirements and instructions provided by the pretrial services office or supervising officer related to the proper operation of the technology.
(X) You must pay all or part of the cost of the program based on your ability to pay as determined by the pretrial services office or supervising officer.
(X) (v) I acknowledge that a warrant for my arrest has been signed by an authorized judicial officer and is being held in abeyance. The warrant may be activated without notice to me if I abscond in violation of the conditions of my release on electronic monitoring.
( ) (w) Defendant is not associate with any convicted felon(s) or person(s) engaged in criminal activity.
Advise of Penalties and Sanctions
TO THE DEFENDANT:
YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:
A violation of any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of release, an order of detention, and a prosecution for contempt of court and could result in a term of imprisonment, a fine, or both.
The commission of any crime while on pre-trial release may result in an additional sentence to a term of imprisonment of not more than ten years, if the offense is a felony; or a term of imprisonment of not more than one year, if the offense is a misdemeanor. This sentence shall be in addition to any other sentence.
Federal law makes it a crime punishable by up to five years of imprisonment, and a $250,000 fine or both to intimidate of attempt to intimidate a witness, victim, juror, informant or officer of the court, or to obstruct a criminal investigation. It is also a crime punishable by up to ten years of imprisonment, a $250,000 fine or both, to tamper with a witness, victim or informant, or to retaliate against a witness, victim or informant, or to threaten or attempt to do so.
If after release, you knowingly fail to appear as required by the conditions of release, or to surrender for the service and additional punishment may be imposed. If you are convicted of:
(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more, you shall be fined not more than $250,000 or imprisoned for not more than ten years, or both;
(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years, you shall be fined not more than $250,000 or imprisoned for not more than five years, or both;
(3) any other felony, you shall be fined not more than $250,000 or imprisoned not more than two years, or both;
(4) a misdemeanor, you shall be fined not more than $100,000 or imprisoned not more than one year, or both;
A term of imprisonment imposed for failure to appear or surrender shall be in addition to the sentence for any other offense. In addition, a failure to appear or surrender may result in the forfeiture of any bond posted.
Acknowledgment of Defendant
I acknowledge that I am the Defendant in this case and that I am aware of the conditions of release. I promise to obey all conditions of release, to appear as directed, and to surrender for service of any sentence imposed. I am aware of the penalties and sanctions set for above.
Signature of Defendant _______________________
Telephone Number _______________________________
Directions to United States Marshal
(X) The Defendant is ORDERED released after processing.
( ) The United States marshal is ORDERED to keep the Defendant in custody until notified by the clerk or judicial officer that the Defendant has posted bond and/or complied with all other conditions for release. The Defendant shall be produced before the appropriate judicial at the time and place specified, if still in custody.
