U.S. v. Arb
1997 WL 542932
D.Kan.,1997.

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Joseph D. Johnson, Joseph D. Johnson, Chartered, William K. Rork Rork Law Office, David J. Phillips, Office of Federal Public Defender, Topeka, KS, for Jerry D Arb, defendant.
Thomas G. Luedke, Office of United States, Attorney, Topeka, KS, for U.S.A.

MEMORANDUM AND ORDER

ROGERS, Senior District Judge.
*1 This matter is presently before the court upon defendant's motion for reconsideration of the magistrate's finding of detention. The court has conducted a hearing on the defendant's motion and is now prepared to rule.
The defendant is charged in a two-count indictment. The defendant is charged with possession with intent to distribute in excess of 100 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and conspiracy to possess with intent to distribute in excess of one kilogram of methamphetamine in violation of 21 U.S.C. § 846.
The defendant seeks review of the magistrate's order of detention of June 4, 1997. The defendant has presented the court with a specific plan for his release. The purpose of the plan is to address the issue of the defendant's danger to the community and others if released pending trial.
On June 4, 1997, the magistrate held a detention hearing in this case. After hearing from both the government and the defendant, the magistrate ordered the defendant detained pending trial. The magistrate determined the government had shown that (1) there was probable cause to believe that the defendant had committed an offense for which a maximum term of imprisonment of ten years or more is prescribed, and (2) there was a serious risk that the defendant would endanger the safety of another person or the community. In reaching the latter conclusion, the magistrate noted, inter alia, that (1) the defendant had been on bond since March 1996 but continued to participate in drug trafficking, and (2) the defendant continued to engage in drug trafficking even after he was advised of the substantial penalties he could face under federal law.
A defendant detained by a magistrate judge may seek review before the district court. 18 U.S.C. § 3145(b). The district court conducts a de novo review of the magistrate judge's order. United States v. Carlos, 777 F.Supp. 858, 859 (D.Kan.1991). The district court must make its own de novo determination of the facts with no deference to the magistrate judge's findings. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir.1990). De novo review does not require a de novo evidentiary hearing. United States v. Alonso, 832 F.Supp. 503, 504 (D.Puerto Rico 1993); United States v. Bergner, 800 F.Supp. 659, 661 (N.D.Ind.1992). The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence. United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991). The district court may also incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. United States v. Chagra, 850 F.Supp. 354, 357 (W.D.Pa.1994); see United States v. Messino, 842 F.Supp. 1107, 1109 (N.D.Ill.1994). Finally, the district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.; Bergner, 800 F.Supp. at 661.
*2 The court shall consider the evidence presented before the magistrate and the evidence presented before this court. The court has reviewed the transcript of the proceedings before the magistrate.
A judicial officer must determine whether a condition or a combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community in deciding to order detention. 18 U.S.C. § 3142(e). A rebuttable presumption arises that no conditions of release will assure the defendant's appearance and the safety of the community when, such as here, the defendant is charged with a federal drug offense carrying a maximum prison term of ten years or more. Id. Once the presumption is invoked, the burden of production shifts to the defendant. United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir.1991). The burden of persuasion regarding risk of flight and danger to the community, however, always remains with the government. Id. at 1354-55. Even if the 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. at 1355. The factors to be considered in determining whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community include: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any other person or the community. 18 U.S.S. § 3142(g)(4).
At the hearing before this court, the defendant presented a detailed plan for assuring the safety of others and the community if he were released. The defendant had not presented such a plan to the magistrate.
Having carefully reviewed all of the evidence presented as well as the arguments of the parties, the court will release the defendant pending trial under intense supervision by the probation office. The court believes that the defendant has successfully rebutted the presumption of detention. The court further believes that the following restrictions will assure the defendant's appearance and the safety of the community. The court shall order the defendant to provide a $5000 cash bond and a $45,000 unsecured bond. The defendant shall reside and maintain employment at the home of Larry Privat in Lebo, Kansas pending trial. The defendant shall also be allowed to work on his father's property. All firearms shall be removed from Mr. Privat's property prior to the defendant's residence there. The defendant shall not travel outside of Osage or Coffey County for any reason except upon the approval of the United States Probation Office in Topeka, Kansas. The defendant shall refrain from contact with any potential witnesses in this case. The defendant shall report to the Probation Office as directed. The defendant shall be confined to Mr. Privat's residence from 8:00 p.m. to 6:00 a.m. The defendant shall refrain from any use of alcohol or narcotic drugs. The defendant shall also refrain from any type of gambling. The defendant shall allow a search of his residence for drugs or firearms at any time by the Probation Office. The defendant shall surrender his passport or file an affidavit of no passport with the Probation Office. Finally, the defendant shall participate in a program of substance abuse at the direction of the Probation Office, which will include urine surveillance and/or counseling.
*3 The court warns the defendant that the violation of any of the aforementioned conditions will cause his immediate incarceration pending trial. The court expects strict supervision of the defendant by the Probation Office during this period of release.
IT IS THEREFORE ORDERED that defendant's motion for reconsideration of the magistrate's finding of detention (Doc. # 31) be hereby granted. The defendant shall be released pending trial upon the aforementioned terms and conditions.
IT IS SO ORDERED.
D.Kan.,1997.
END OF DOCUMENT

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