The opinion of the court was delivered by: MCAVOY
This matter comes before the court on the defendant Carter's motion for revocation or amendment of the detention order entered against him in the instant case.
The defendant Carter was charged in an indictment dated June 23, 1995, along with many others with various counts of cocaine distribution in violation of 21 U.S.C. § 841(a)(1), the use of firearms in furtherance of narcotics trafficking in violation of 18 U.S.C. § 924(c), and two forfeiture counts. Following a detention hearing before Magistrate Judge DiBianco on July 6, 1995, the defendant Carter was detained pursuant to an order of the Magistrate Judge dated July 12 1995. The defendant Carter sought reconsideration of that Order, which was denied on December 13, 1995. The defendant Carter now seeks review by this court.
A. Review Of A Detention Order
"If a person is ordered detained by a magistrate ... the person may file, with the court having original jurisdiction over the offense, a motion for revocation or amendment of the order. The motion shall be determined promptly." 18 U.S.C. § 3145(b). This Circuit has held that when a defendant seeks review of a Magistrate Judge's detention order, the district court should fully review the denial of bail, and reach an independent conclusion. United States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985) (citations omitted).
The court notes that the defendant Carter has been charged with at least one count contemplated by 18 U.S.C. § 848, and accordingly, the defendant Carter is faced with a statutory presumption of dangerousness and risk of flight.
See 18 U.S.C. § 3142(e). The statute 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..." Id. The Second Circuit has further held 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) (citation omitted).
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). However, once a defendant introduces rebuttal evidence the presumption does not disappear altogether, but rather, continues to be weighed along with other factors. Id.2 The factors to be considered in assessing dangerousness are enumerated in 18 U.S.C. § 3142(g) and include the nature and circumstances of the offense charged, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the seriousness of the risk to the community. See also United States v. Chimurenga, 760 F.2d 400 (2d Cir. 1985).
The nature of the crimes charged against the defendant Carter weighs most heavily against his application. The government has alleged a violation of 21 U.S.C. § 846 (cocaine conspiracy involving more than 5 kilograms of cocaine and with a mandatory minimum of 10 years to life imprisonment), and 21 U.S.C. § 848 (CCE with a mandatory minimum of 20 years to life imprisonment), each of which raises the 18 U.S.C. § 3142(e) presumption.
The government contends that the defendant Carter was a manager in the so-called Joyner Organization.
The government has alleged that the defendant Carter's role in the CCE and the conspiracy was as the manager of Begies, a local bar, out of which cocaine allegedly was sold, and as a collector and storer of cocaine delivered from New York, as a collector of money from sellers of cocaine, and as a supervisor of security.
In addition, the defendant Carter allegedly was involved in a high speed car chase by the Binghamton police during which two guns were thrown from the car in which the defendant Carter was riding. Those two guns were used by the drug organization.