ERIC F. MELGREN, District Judge.
Presently before the Court is the Government's Motion to Revoke the Magistrate's Order of Release, filed February 25, 2014. On March 5, 2014, the Court held a hearing on the motion. For the following reasons, the Government's motion is granted.
On February 13, 2014, a federal grand jury charged Defendant James D. Russian ("Defendant") with being a felon knowingly in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Following a lengthy detention hearing with Magistrate Judge Kenneth G. Gale, Plaintiff was ordered released, despite the Government's objections, on $10,000 cash bond and certain conditions pending trial.
After Judge Gale made his ruling, the Government indicated its intention to appeal his decision and moved for a stay of Defendant's release pursuant to D. Kan. R. 72.1.4. Judge Gale granted the Government's motion and ordered that the release order be stayed until 9:00 a.m. on February 26, 2014. The Government timely filed its appeal on February 25, 2014.
On this same date, the Government filed a Complaint against Defendant, charging him with one count of knowingly possessing a firearm in furtherance of a drug trafficking crime, namely possession with the intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possession with the intent to distribute more than 9.36 grams of marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1).
On March 4, 2014, a second federal grand jury indicted Defendant on the following charges: (1) one count of being a felon knowingly in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) one count of being a felon knowingly in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); (3) knowingly possessing a firearm in furtherance of a drug trafficking crime, namely possession with the intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) knowingly and intentionally possessing, with the intent to distribute, marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1).
In the hearing for its Motion to Revoke on the original indictment, the Government again moved for detention on the grounds that the charges contained in the superseding indictment involve offenses for which a minimum term of imprisonment is prescribed, and which therefore creates a rebuttable presumption of detention, and that Defendant poses a serious risk of flight and danger to the community.
The district court's authority to review a magistrate's detention order derives from 18 U.S.C § 3145(b) and is de novo.
Under the Bail Reform Act of 1984, the Court must order an accused's pretrial release, with or without conditions, unless it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community."
In determining whether the government has met its burden, the court considers the following four factors:
The Bail Reform Act also provides a rebuttable presumption of risk of flight or danger to the community when a defendant is charged with an offense under 18 U.S.C. § 924(c). "A grand jury indictment provides the probable cause required by the statute to trigger the presumption."
"Once the presumption is invoked, the burden of production shifts to the defendant."
Here, defense counsel called to the Court's attention Defendant's prompt reporting for service of earlier prison sentences and his consistent court appearances on previous charges. Additionally, counsel noted that Defendant is currently out on $10,000 bond for charges brought against him in Crawford County. If granted bond in the case now before this Court, Defendant would have $20,000 worth of incentive to remain in the jurisdiction. The Court also takes note of Defendant's strong family ties to the community, including his parents and sister who reside in Pittsburg, Kansas, where Defendant is expected to return. The Court finds this evidence to be sufficient to shoulder Defendant's light burden.
The superseding indictment in this case charges Defendant with, inter alia, knowingly possessing a firearm in furtherance of a drug trafficking crime, namely, possession with the intent to distribute a controlled substance. The seriousness of this offense is reflected in the applicable penalty. If convicted, Defendant faces a minimum of five years in prison to run consecutive to any sentence issued for the drug trafficking offenses themselves. Therefore, the Court finds that factor one favors detention.
Based on the February 25, 2014, Complaint, the facts of this case are as follows. On November 13, 2013, the Barton County, Missouri Sheriff's Department received a 911 call from Torre Presley ("Presley") requesting help with a man, later identified as Defendant, who was threatening her with a machete and a handgun. When officers responded to the scene, Defendant gave chase. The officers activated emergency overhead lights in an effort to initiate a traffic stop, but Defendant failed to yield or stop his vehicle. The chase crossed the state line into Kansas where Crawford County deputies joined the pursuit. Vehicle speeds exceeded 100 miles per hour. Defendant eventually lost control of his vehicle and fled on foot. He was subsequently taken into custody.
A search of Defendant's vehicle revealed loose marijuana in the driver's door, nine individual baggies containing marijuana, a broken glass pipe with residue, a small cooler containing alcoholic beverages, a Samsung cellular telephone, and United States currency. Based on this discovery, Crawford County Sheriff's deputies obtained a search warrant for Defendant's home, where they discovered the following: multiple plastic baggies containing a leafy green substance, rolling papers, matches, multiple plastic baggies containing a white powdery substance, two glass bottles containing a liquid crystalline substance which field-tested positive for methamphetamine, two digital scales, narcotics pipes, unopened Fentanyl packages, and a notebook containing names, amounts, and telephone numbers. In addition to the drugs and paraphernalia, officers found a Ruger nine-millimeter semi-automatic pistol loaded with twelve live ammunition cartridges, as well as an additional seventy (70) nine-millimeter ammunition cartridges and eighteen (18) live twenty-gauge shotgun ammunition cartridges. Based on this evidence alone, it appears to the Court that the Government's case against Defendant is strong. As a result, the Court finds that factor two also favors detention.
As reflected in the pretrial services report, Defendant suffers from depression, for which he takes prescription medication. Although not on probation, parole, or any other type of release at the time of his arrest, Defendant has a lengthy criminal history, including convictions for possession of cocaine, reckless driving, conspiracy to commit aggravated battery, unlawful acquisition, receipt, and possession of firearms, manufacture/distribution of opiates, obstructing legal process, assault, and theft. Defendant has faced numerous additional charges, some of the most serious of which include possession of a hallucinogenic, resisting felony arrest, fleeing/eluding a law enforcement officer with five or more moving violations, and criminal use of weapons.
It also appears that Defendant has some difficulty maintaining employment. Although Defendant claims to have been self-employed in the concrete industry for the past ten years, the Court notes that his work is, as counsel admitted on the record, seasonal in nature. Defendant informed the Pretrial Services Officer that he has not worked in recent months and is now living off of his savings.
Finally, there is some evidence in the record that Defendant has previously proclaimed himself to be a sovereign citizen, immune to the jurisdiction and rules of this Court. The pretrial services report contains information that Defendant reported to agents from the Bureau of Alcohol, Tobacco, and Firearms that he is trying to surrender his United States citizenship. While defense counsel assured this Court that Defendant has now indeed agreed to abide by any constraints set upon him, Defendant's former statements are worthy of consideration.
In contrast, Defendant has lived nearly all his life in Pittsburg, Kansas. His family, consisting of his parents and sister, still reside in the area. Defendant has lived in the same apartment for the past four years and has indicated his intent to return to this apartment upon his release. During an interview, Defendant's sister expressed her fear that Defendant currently has a drug and/or alcohol problem for which he may need treatment.
Based on the circumstances set forth above, the Court finds that the third factor favors detention.
"Before releasing defendant on any set of conditions, the Court must be satisfied that defendant will not pose a danger to any other person or to the community."
First and foremost, the Court acknowledges the danger and seriousness of Defendant's activities the night of his arrest in November 2013: possession of a firearm, flight from law enforcement, and a high-speed chase. In addition, the Government brought to the Court's attention a series of text messages between Defendant and someone by the name of "Ang," later identified in police reports as Angela Lowries ("Lowries"), in which Defendant appears to threaten Lowries for the return of his gun and "eight-ball." One message suggests that, without the return of these items, Lowries would "see fire." It also appears Defendant threatened to cut the heads off of Lowries' animals and to have someone by the name of Casey "pull the plug." At one point, Lowries questions Defendant, "Stop please. Are you going to hurt me?" While defense counsel attempted to show that there was a long history between Defendant and Lowries, the Court is not convinced that such a history mitigates Defendant's clear threats.
The Government also set forth evidence of a Final Order of Protection from Stalking against Defendant, issued on December 18, 2013, in Crawford County. Defendant was arrested on January 27, 2014, for violating this order and was booked into the Crawford County Jail on $10,000 bond. As such, the Court concludes that factor four favors detainment.
For the foregoing reasons, the Court finds that the Government has carried its burden of proving that pretrial detention is warranted. No set of conditions of release will assure Defendant's pretrial presence as required and/or protect the community from the danger of additional drug trafficking crimes.
