United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on the defendant Robert Lee
Marshall's motion (DE 13) to revoke his detention order.
For the following reasons, the Court will deny the motion.
is charged with possessing with intent to distribute 100
grams or more of heroin; possessing various firearms,
including a semi-automatic handgun, in furtherance of the
drug trafficking crime; and possessing a stolen firearm.
government moved that he be detained pending trial. Pursuant
to 18 U.S.C. § 3142(e)(1), a defendant must be detained
pending trial if, after a hearing, a judicial officer finds
that no condition or combination of conditions will
reasonably assure his appearance and public safety. Pursuant
to 18 U.S.C. § 3142(e)(3), for any defendant charged
with the crimes at issue here, there is a rebuttable
presumption that no condition or combination of conditions
will reasonably assure the defendant's appearance or the
public safety. Marshall conceded at the detention hearing
that the presumption applies in this case.
the presumption is invoked, the burden of production shifts
to the defendant. However, the burden of persuasion regarding
risk of flight and danger to the community remains with the
government. United States v. Stone, 608 F.3d 939,
945 (6th Cir. 2010). The defendant's burden of production
is “not heavy, ” but he must produce some
evidence that he does not pose a danger to the community or
risk of flight. Id. Even if a defendant's burden
of production is met, the presumption remains a factor for
consideration by the district court in determining whether to
release or detain. Id.
magistrate judge conducted a detention hearing and determined
at the conclusion of the hearing that Marshall had not
rebutted the presumption regarding his danger to the
community. Accordingly, the magistrate ordered Marshall
detained pending trial. (DE 12, Detention Order.)
Court will conduct a de novo review of the
magistrate judge's detention order pursuant to 18 U.S.C.
§ 3145(b). The statute does not specifically require
that this Court conduct an additional hearing. In his motion,
Marshall does not request a hearing and he does not rely on
or explain any additional evidence that he would proffer in
support of the motion. Accordingly, a second detention
hearing is not necessary. See United States v.
Gaviria, 828 F.2d 667, 670 (11th Cir.1987); United
States v. Jones, No. 12:CR-105, 2012 WL 6737784, at * 1,
n.1 (D. Conn. 2012); United States v. Burks, 141
F.Supp.2d 1283, 1285 (D. Kan. 2001);United States v.
Alonso, 832 F.Supp. 503, 504 (D. Puerto Rico 1993);
United States v. Bergner, 800 F.Supp. 659, 661
resolving this motion, the Court will rely on the audio
recording of the detention hearing, the pretrial report
prepared by the United States Probation Office, and
Marshall's motion to revoke the detention order. The
United States has not filed a response to the motion.
hearing, Marshall presented four witnesses, all of whom are
related to Samantha Buenrostro, the mother of Marshall's
son: Angelica Larkey and Laura Chavez (Samantha's
sisters), Alexa Chavez (Samantha's niece), and Victoria
Buenrostro-Rodriguez (Samantha's mother). All four
testified that they have known Marshall for about two years.
Larkey testified that Marshall and Samantha were arrested on
related state-court charges. Victoria testified that she and
her husband posted the home they own in Lexington to satisfy
Marshall's state-court bond. These witnesses testified
that Marshall found employment in housekeeping at the
University of Kentucky after being released by the state
court and that he kept that employment until he was taken
into custody on these federal charges. The government
stipulated that Marshall turned himself in upon learning of
indictment in this action. Samantha's family testified
that Marshall posed no risk of flight or public danger. Laura
testified that her father has cancer and recently had a
stroke, and that Marshall helps take care of him.
witnesses testified that, since his federal arrest, Marshall
has lived with Samantha, their five-month old child, and
Samantha's parents in the home owned by Samantha's
parents. Additionally, each of the witnesses testified that
Marshall was not a danger to the community and would comply
with any conditions of release imposed upon him.
Court agrees with the magistrate judge that this evidence
does not rebut the presumption that no condition or
combination of conditions will reasonably assure the public
safety if Marshall were to be released. Samantha's family
has known Marshall a relatively short amount of time, and
they testified they were unaware that he had heroin or
firearms in the apartment he resided in with Samantha and
their five-month old child at the time of the search. Thus,
their testimony regarding his danger to the community is not
even if the evidence did rebut the presumption regarding the
public safety, he still must be detained. Where the
presumption does not apply, detention is appropriate if the
government proves by a preponderance of the evidence that the
defendant is a flight risk or if it proves by clear and
convincing evidence that the defendant poses a danger to the
public or any person. United States v. Hinton, 113
Fed.Appx. 76, 77 (6th Cir. 2004). In making this
determination, the court is to consider “the available
information” on the following factors:
1) the nature and circumstances of the offense, including
whether the offense is a crime of violence, a violation of
section 1591, a Federal crime of terrorism, or involves a
minor victim or a controlled substance, firearm, explosive,
or destructive device;
2) the weight of the evidence against the person, meaning
“the weight of the evidence of dangerousness, not the
weight of the evidence of the defendant's ...