LEONARD T. STRAND, United States Magistrate Judge.
This case came before me on January 28, 2015, for hearing on defendant Dustin Dimmick's motion (Doc. No. 12) for release. Assistant United States Attorney Shawn Wehde appeared on behalf of the plaintiff (the Government). Dimmick appeared in person and with his attorney, Jim McGough. Neither party called witnesses but Dimmick proffered information through counsel. No exhibits were offered. I have also considered the information contained in the Pretrial Services Report (Doc. No. 15).
On July 24, 2014, Dimmick was charged by indictment (Doc. No. 2) with one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On December 10, 2014, the Government filed a motion (Doc. No. 6) for writ of habeas corpus ad prosequendum (Writ), as Dimmick was in the custody of the South Dakota Department of Corrections (SDDC). I entered an order (Doc. No. 8) granting the motion and the Writ (Doc. No. 8-1) was issued the same day. On January 13, 2015, Dimmick was placed into the custody of the United States Marshals Service. Doc. No. 9. According to the terms of the Writ, Dimmick is to be returned to the SDDC "upon completion of all proceedings and processing of this cause." Doc. No. 8-1.
Dimmick's initial appearance and arraignment in this case occurred on January 15, 2015. At that time, trial was set for March 2, 2015, and the Government requested that Dimmick be detained in federal custody pending trial. Dimmick, through counsel, requested that he be released from federal custody and returned to SDDC custody because of an upcoming parole hearing. I ordered temporary detention to allow the parties to gather further information about the status of the South Dakota parole proceedings. On January 21, 2015, Dimmick filed his motion (Doc. No. 12) for release, formally requesting that he be returned to the custody of the SDDC. The Government filed a resistance (Doc. No. 13) on January 22, 2015. As noted above, I conducted a hearing on January 28, 2015, and then took the matter under advisement.
Dimmick argues he should be released to the custody of the SDDC. He contends he is soon eligible for a parole hearing in South Dakota but that he must first complete certain treatment programs provided through the SDDC. As such, he requests that
Dimmick's motion cites no legal authorities. Nor does it describe any legal standard under which I should consider his request for release. Thus, at the beginning of the hearing I asked counsel for both parties to address the legal framework for resolving the motion. Counsel for the Government argued that this situation is effectively no different than any other case in which pretrial detention is in dispute. That is, Dimmick is in federal custody, having been indicted for a federal offense, and the question of whether he remains in federal custody pending trial should be resolved pursuant to the Bail Reform Act, 18 U.S.C. § 3142.
Dimmick's counsel disagreed. He distinguished this situation factually by noting
As I will discuss below, I conclude that Dimmick's appearance on a Writ does not affect the legal analysis. Instead, and as in any other federal criminal case, his release from federal custody pending trial is governed by Section 3142. Applying the factors set forth in that statute, I find that Dimmick must remain in federal custody.
A federal court has the power to issue a writ of habeas corpus ad prosequendum in order to bring a prisoner from one jurisdiction to another when it is necessary to bring the prisoner into court to prosecute, for hearings or to testify. Munz v. Michael 28 F.3d 795, 798 n. 3 (8th Cir.1994); 28 U.S.C. § 2241(c)(5). The Writ allows temporary custody of a prisoner until the completion of the federal criminal proceedings and a prisoner has no standing to challenge the Writ. Derengowski v. U.S. Marshal Minneapolis Office, Minn. Div., 377 F.2d 223, 224 (8th Cir. 1967). The Eighth Circuit Court of Appeals has held that a Writ is distinct from a detainer and, therefore, is not subject to the requirements imposed by the Interstate Agreement on Detainers. United States v. Harris, 566 F.2d 610, 614 (8th Cir.1977).
Section 3142 addresses the question of whether a defendant in a federal criminal case should be released or detained pending trial. 18 U.S.C. § 3142. A defendant appearing in federal court on a Writ, however, is usually a prisoner elsewhere, such as in the custody of a state corrections agency. Thus, no "release" in a traditional sense (i.e., the restoration of liberty) is possible. The question, instead, is whether the defendant stays in federal custody or returns to state custody while awaiting trial. In that situation, does Section 3142 still apply?
Federal courts addressing the situation have answered "yes." For example, in United States v. Troedel, No. 2:12-cr-81-FtM-29DNF, 2012 WL 4792457 (M.D.Fla. Oct. 9, 2012), a magistrate judge refused to conduct a detention hearing on grounds that the defendant was not "eligible" for release, as he was an inmate at a county jail appearing on a Writ. Id. at *1. On review, the district judge vacated the detention order and recommitted the issue to the magistrate judge for a detention hearing, stating:
Id. at *1-2.
I have located no authority suggesting otherwise. Nor am I independently able to conclude that Section 3142 should not apply to a federal criminal defendant who appears on a Writ. Neither Section 3142 nor any other statute creates an exception for defendants appearing by Writ. Thus, I will analyze Dimmick's motion for release pursuant to Section 3142.
A request to detain a defendant pending trial triggers a two-step inquiry. First, I must determine whether the Government is entitled to seek pretrial detention. See 18 U.S.C. § 3142(f)(2). The Government must prove by a preponderance of the evidence that the case involves either (a) an offense listed in Section 3142(f)(1) or (b) the defendant presents certain risk factors, as identified in Section 3142(0(2). Id.; see also United States v. Fonville, No. 14-MJ-241, 2014 WL 5410319 (N.D.Iowa October 22, 2014).
Second, if a request for pretrial detention is authorized I must determine whether any condition or combination of conditions will reasonably assure the defendant's appearance as required, as well as the safety of any other person and the community. 18 U.S.C. § 3142(e). A defendant may be detained on the basis of a showing of either dangerousness or risk of flight; it is not necessary to show both. United States v. Apker, 964 F.2d 742, 743 (8th Cir.1992) (per curiam); United States v. Sazenski, 806 F.2d 846, 848 (8th Cir. 1986) (per curiam). Here, Dimmick is charged with possession of a firearm by a felon. That charge carries no presumption of detention. 18 U.S.C. § 3142(e). The Government bears the burden of proving risk of flight by a preponderance of the evidence and/or proving dangerousness by clear and convincing evidence. 18 U.S.C. § 3142(f); United States v. Orta, 760 F.2d 887, 890-91, n. 20 (8th Cir.1985) (en bane).
In determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety the community, I must apply the factors outlined in Section 3142(g), including (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a firearm; (2) the weight of the evidence against the defendant; (3) the defendant's history and characteristics; and (4) the nature and seriousness of the danger to any person or to the community that would be posed by the defendant's release. I must then determine whether any of the conditions in Section 3142(c) can reasonably assure the appearance of the defendant and the safety of the community. 18 U.S.C. § 3142(e); United States v. Orta, 760 F.2d 887, 891 (8th Cir.1985) (en bane).
Dimmick is charged with violating 18 U.S.C. § 922(g)(1) by being a felon in possession of a firearm. This charge falls
Before considering the Section 3142(g) factors, I note that Dimmick's primary argument appears to be that he will not be a risk of flight or danger to the community if released from federal custody because he would immediately return to state custody. He notes that the Attorney General may file a detainer with the SDDC to ensure that Dimmick is not released from custody even if granted parole. Thus, he contends that the Government cannot meet its burden of proof with regard to either prong of the detention analysis.
I disagree. Dimmick's argument, if adopted, would effectively mandate pretrial release from federal custody for any defendant appearing on a Writ. Moreover, the factors itemized in Section 3142(g) make no reference to the defendant's custodial status if released from federal custody. Congress could have specified, for example, that the fact a defendant would be returned to another jurisdiction's custody is a factor weighing in favor of releasing that defendant from federal custody. Congress did not do so. Thus, I find the fact that Dimmick would return to SDDC custody upon release in this case to be largely irrelevant. I must apply the Section 3142(g) factors to him just as I would with regard to any other defendant.
Applying those factors, I find the Government has proved that no condition or combination of conditions imposed on Dimmick would reasonably assure his appearance or the safety of the community if he were to be released:
For all of these reasons, I conclude that the Government has met its burden of showing that Dimmick should be detained in federal custody pending his trial.
For the reasons set forth herein, I hereby
IT IS SO ORDERED.
