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UNITED STATES v. DUNCAN

August 24, 1995

UNITED STATES OF AMERICA, -v.- DENNIS DUNCAN and NORMAN DUNCAN, Defendants.

Thomas J. McAvoy, Chief U.S. District Judge


The opinion of the court was delivered by: THOMAS J. MCAVOY

MEMORANDUM-DECISION and ORDER

 Defendant Norman Duncan was detained by order of Magistrate Judge Smith after a pre-trial detention hearing held on June 29, 1995. Duncan now cones before the Court seeking review of Judge Smith's detention order under 18 U.S.C. § 3145.

 I. Background

 Defendant Duncan was charged in the indictment with Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine and Marijuana in violation of 28 U.S.C. §§ 841 and 846. If convicted of these offenses, defendant faces a mandatory minimum term of imprisonment of ten years and a maximum term of life imprisonment.

 II. Discussion

 a. Standard of Review

 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 should be noted that detention hearings are an informal proceeding, and that the evidence presented is not governed by the Federal Rules of Evidence. 18 U.S.C. § 3142(f)(2). It is with these considerations in mind that the Court turns to the merits of the defendant's application.

 b. Statutory Presumptions Under 18 U.S.C. § 3142

 The Court first notes that the defendant is faced with the statutory presumptions of dangerousness and risk of flight. Those presumptions arise from 18 U.S.C. § 3142(e), which states in relevant part:

 
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 a proper indictment "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 there is no allegation that the indictment was improper, there exists probable cause to believe that the defendants committed the acts alleged in the indictment. Accordingly, since the alleged offenses carry ...


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