United States District Court, District of Columbia
Anthony F. Scarpelli, U.S. Attorney's Office, Washington, DC, for United States of America.
Joseph Roll Conte, Law Offices of J.R. Conte, P.L.L.C., Washington, DC, for Defendant.
RUDOLPH CONTRERAS, District Judge.
On January 31, 2013, a grand jury indicted Kevin Holland on three counts of cocaine distribution, one count of heroin distribution, and one count of conspiracy to distribute at least five hundred grams of cocaine, an unspecified amount of heroin, and to possess both with the intent to distribute them. The distribution counts alleged violations of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), while the conspiracy was allegedly in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(ii), and 841(b)(1)(C). A bench warrant issued, and Mr. Holland was arrested the following day. He was arraigned, pled not guilty, and was temporarily detained. The court held a detention hearing this morning and, for the reasons set out below, ordered Mr. Holland detained without bail pending trial.
I. LEGAL STANDARD
Under the Bail Reform Act of 1984, a judge cannot order a defendant detained before trial unless he finds that no conditions of release will reasonably assure either the safety of other persons and the community or the appearance of the defendant in court. 18 U.S.C. § 3142(e)(1). The first finding must be made by clear and convincing evidence, id. § 3142(f); the second need only be made by a preponderance of the evidence, United States v. Simpkins, 826 F.2d 94, 96 (D.C.Cir.1987);
United States v. Vortis, 785 F.2d 327, 328 (D.C.Cir.1986) (per curiam); United States v. Beauchamp-Perez, 822 F.Supp.2d 7, 9 (D.D.C.2011); United States v. Hanson, 613 F.Supp.2d 85, 87-88 (D.D.C.2009). " Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed ... an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. 801 et seq. )...." 18 U.S.C. § 3142(e)(3), (A).
" Section 3142(g) of the [Bail Reform] Act sets out the factors to be considered by the magistrate or judge in deciding whether available conditions will reasonably assure the defendant's appearance [or the safety of others]: the nature and circumstances of the offense, particularly its nonviolent nature; the weight of the evidence; the history and characteristics of the person, including his character, family ties, employment, length of residence in the community, community ties, past conduct, criminal history, and record of court appearances; and the danger the defendant poses to the community if released." United States v. Xulam, 84 F.3d 441, 442 (D.C.Cir.1996) (per curiam). Both parties may proffer information relevant to this analysis. United States v. Smith, 79 F.3d 1208, 1210 (D.C.Cir.1996) (per curiam).
Mr. Holland's indictment on a charge of conspiracy to distribute and to possess with the intent to distribute at least five hundred grams of cocaine establishes probable cause to believe that he has committed that offense, which subjects him to a maximum term of life imprisonment. The court therefore begins its analysis with the rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of the community and the appearance of Mr. Holland as required. See 18 U.S.C. § 3142(e)(3)(A) (presumption arises on finding of probable cause to believe accused violated Controlled Substances Act and is subject to at least ten years' imprisonment); 21 U.S.C. § 841(b)(1)(B)(ii) (possession of 500 grams cocaine with intent to distribute carries maximum sentence of life); id. § 846 (conspiracy punished as though it were completed offense); Smith, 79 F.3d at 1210 (holding that " indictment [on a covered offense] alone [is] enough to raise the rebuttable presumption that no condition would reasonable assure the safety of the community" ); accord United States v. Williams, 903 F.2d 844 (D.C.Cir.1990) (per curiam) (unpublished opinion).
The court first considers " the nature and circumstances of the offense charged." 18 U.S.C. § 3142(g)(1). Each of the charged offenses " involves ... a controlled substance." Id. The first factor therefore weighs against Mr. Holland.
The court next considers " the weight of the evidence against" Mr. Holland. Id. § 3142(g)(2). At the detention hearing, the government proffered that each of the distribution charges stemmed from a controlled drug purchase made by a cooperating witness, and that such witnesses had recently made purchases of fifty and one hundred grams of heroin. The government also proffered that the conspiracy charge was supported by recordings of what the government believed to be coded telephone conversations in which Mr. Holland conspired to purchase ...