The opinion of the court was delivered by: THOMAS J. MCAVOY
On April 20, 1995, defendant Dennis L. Grice was arrested on the basis of a grand jury indictment alleging that he conspired to distribute crack cocaine and that, on a single occasion, he distributed crack cocaine. After a detention hearing on April 25, 1995, Magistrate Judge Ralph W. Smith, Jr. ordered defendant Grice detained pending trial after finding that Grice posed both a serious risk of flight and a danger to the community. Magistrate Judge Smith denied defendant's Motion for Reconsideration of that detainment order on May 26, 1995. Comes now Defendant Grice seeking review of Judge Smith's detention order under 18 U.S.C. § 3145(b). Grice relies primarily on his arguments that "the evidence the government has obtained to date is not what it expected to obtain as stated in its proffer" at the original detention hearing (Deft. Notice of Motion).
The Second Circuit has declared that when defendants seek review of a magistrate judge's detention order a district court should fully reconsider the magistrate's denial of bail. In undertaking such review the district court should not simply defer to the judgment of the magistrate judge, but should reach its own independent conclusion. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (citing United States v. Delker, 757 F.2d 1390, 1394-95 (3d Cir. 1985); United States v. Williams, 753 F.2d 329, 331 (4th Cir. 1985)). In short, such motions should be accorded substantially de novo review. Id. It is with these considerations in mind that the Court turns to the merits of this defendant's application.
b. The Statutory Presumptions:
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 . . ..
18 U.S.C. § 3142(e) (emphasis added). The Second Circuit has stated that "an indictment returned by a duly constituted and unbiased grand jury satisfies the Constitution as to the existence of probable cause that the defendant committed the crimes enumerated therein." United States v. Contreras, 776 F.2d 51, 54 (2d Cir. 1985) (citing Lawn v. United States, 355 U.S. 339, 349, 78 S. Ct. 311, 317, 2 L. Ed. 2d 321 (1958)). Thus, in the case at bar, since an indictment was returned by a duly constituted grand jury, there is probable cause to believe that the defendant committed the acts alleged in the indictment. Accordingly, since the alleged offenses carry a potential maximum term of life imprisonment, it is presumed that this defendant poses a significant risk of flight as well as a danger to the community.
The government retains the burden of proving dangerousness by clear and convincing evidence even when the statutory presumption has been invoked. See United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir. 1991). Once a defendant introduces rebuttal evidence, however, the presumption does not disappear altogether, but rather continues to be weighed along with other factors. Id. Defendant Grice claims that the Magistrate Judge erred when he found that Panzera had failed to rebut the statutory presumption of dangerousness. He points to no facts in his favor, however, which might serve to mitigate that presumption. Notwithstanding Grice's failure to affirmatively rebut the presumption the Court must nevertheless undertake the statutory factor inquiry.
The factors to be considered in assessing dangerousness are enumerated in § 3142(g) and include the nature and circumstances of the offense charged, the weight of the evidence against the defendant and the history and characteristics of the defendant and the nature and seriousness of the risk to the community. See United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985).
The nature of Grice's charged offense, see § 3142(g)(1), weighs heavily against his application. The government has indicted the defendant for participating in an allegedly extensive narcotics distribution conspiracy. Not only does the crime charged "involve a narcotics drug," 18 U.S.C. § 3142(g)(1), but the government has characterized Grice as the source of supply for the conspiracy. Such a conspiracy is a presumptively dangerous activity. Rodriguez 950 F.2d at 89.
As stated above, Grice's primary objections go to the next factor: the weight of the evidence against him See § 3142(g)(2). Grice claims that the government's proof has not developed as was anticipated and proffered at the detention hearing. Specifically, Grice claims that the government indicated that one or more of his co-defendants would make statements that he was the source of the cocaine distributed during the conspiracy. Grice points out that since that time only one of his co-defendants has made a statement implicating him in the conspiracy. The defendant chooses to view the government's glass as half-empty when he argues that since only one of the co-defendants has offered such a statement, the government has failed to fulfill its promise that one or more of Grice's co-defendants would implicate him at trial. Unsurprisingly, the government ...