The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Defendant Antonio Briggs is charged in three counts of a
multi-count, multi-defendant Second Superseding Indictment*fn1
with conspiring to possess with intent to distribute, and to
distribute, quantities of mixtures and substances containing cocaine,
cocaine base, heroin, 3,4-methylenedioxymethamphetamine (MDMA),
oxycodone, hydrocodone, and marijuana, in violation of 21 U.S.C. §§
841(a), 841(b)(1)(A)--(E), and 846, and using a telephone to
facilitate felony drug offenses, in violation of 21 U.S.C. § 843(b).
Upon the Government's motion for Defendant's pretrial detention, the Magistrate Judge conducted a detention hearing and found that Defendant presented a risk of flight and danger to the community. (Text minute entry, Aug. 26, 2010.) The Magistrate Judge subsequently ordered, without prejudice, that Defendant be detained. Defendant moved for reconsideration of detention (Docket No. 46) and the Magistrate Judge held a hearing on the motion on September 20 and 28, 2010. The Magistrate Judge found that Defendant failed to rebut the statutory presumption of detention and, on December 23, 2010, issued an Order denying Defendant's motion and ordering his detention. (Docket No. 132.)
Presently before this Court is Defendant's Appeal of the Magistrate Judge's Detention Order. (Docket No. 136.) For the reasons stated below, Defendant's appeal is denied and he shall remain detained pending trial.
2. Eighteen U.S.C. § 3145(b) provides the mechanism for review of a magistrate judge's detention order by a district judge. Review is de novo, but the district judge is permitted to use the factual and evidentiary record developed below when making an independent conclusion. SeeUnited States v. Leon, 766 F.2d 77, 80 (2d Cir. 1985).
3. Under the Bail Reform Act, 18 U.S.C. §§ 3141, et seq., pretrial detention is available only pursuant to § 3142(e). See 18 U.S.C. § 3142(a)(4); United States v. Dillard, 214 F.3d 88, 90--91 (2d Cir. 2000). That subsection expressly authorizes the pretrial detention of a defendant upon a judicial finding that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community."18 U.S.C. § 3142(e).
4. Also applicable here, given that Defendant is subject to a maximum term of imprisonment of life under Title 21 United States Code Section 841(b), is the rebuttable presumption of both flight and dangerousness. See 18 U.S.C. § 3142(e)(3)(A). Under that provision, it is presumed, subject to rebuttal, "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community," if 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). The indictment itself furnishes probable cause to believe that a defendant committed the offenses charged. See United States v. Contreras, 776 F.2d 51, 55 (2d Cir. 1985).
5. When the statutory presumption of detention exists, the defendant must present "some evidence contrary to the presumed fact" to rebut the presumption.United States v. Rodriquez, 950 F.2d 85, 88 (2d Cir. 1991). The government retains the burden of persuading the court of the defendant's risk of flight by a preponderance of the evidence, seeUnited States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988), and of the defendant's dangerousness by clear and convincing evidence, seeRodriquez, 950 F.2d at 88; 18 U.S.C. § 3142(f). The remaining strength of the presumption is then weighed along with the factors set forth in 18 U.S.C. § 3142(g), which include (1) the nature and circumstances of the offense charged, including whether the offense . . . involves . . . a controlled substance; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g).
6. To rebut the presumption that no condition or combination of conditions will reasonably assure against his flight or dangerousness, Defendant argues that he has significant ties to the Western New York area, no out-of-state contacts, no history of violence, and no history of mental health issues to corroborate the Government's contention that he may harm himself if released, and, further, that Pretrial Services recommended his release on non-financial bond in its August 27, 2010 Report.
7. The Court will consider each factor of § 3142(g) in turn. First, the nature and circumstances of the drug offenses charged are serious. Congress has specified that courts considering detention of a defendant take into account the significance of a crime involving "a controlled substance." 18 U.S.C. § 3142(g)(1). Here, Defendant is charged with participating in a large-scale drug-trafficking conspiracy involving various controlled substances, including five kilograms or more of cocaine and five grams or more of cocaine base, as well as quantities of heroin, MDMA, oxycodone, hydrocodone, and marijuana. Moreover, Defendant is alleged to have held a principal role in this drug conspiracy case.
The recent Second Superseding Indictment of January 20, 2011, charges
Defendant with offenses that carry more substantial criminal penalties
than the offenses in previous indictments considered by the Magistrate
Judge. If convicted of this conspiracy offense, Defendant faces a
mandatory minimum term of imprisonment of ten years*fn2
and a maximum sentence of life. This Court finds that the
nature of Defendant's alleged offenses and his potential for a lengthy
period of incarceration provide a motive to flee and weigh against
Second, the evidence against Defendant appears to be strong. The Government has proffered evidence of intercepted communications between Defendant and other co-defendants, regarding the alleged purchase and distribution of narcotics. The Government will present recordings from a cellular telephone that investigation revealed to be used by Defendant, as well as from the telephone at Defendant's place of business. Along with information provided by cooperating defendants, the Government will present surveillance of Defendant's clothing business that revealed alleged drug-trafficking arrangements and negotiations.
The Government has proffered the transcript of an intercepted communication between Defendant and his father on March 22, 2010, during which Defendant first tells his father that he is presently under surveillance while at Buffalo International Airport and then directs his father to remove something from inside a particular coat in Defendant's clothing store. Defendant asserts that he was directing his father to remove money from one of the coat pockets to protect the money from being seized during a search of his store. (Docket No. 147.) Although Defendant has suggested that the money was from clothing sales at his store, rather than from drug-trafficking, the likelihood that Defendant was directing removal of inculpatory evidence is sufficiently strong to weigh against him.
Defendant argues that even after determining that he was under surveillance while at the airport, he departed from and returned to Buffalo as planned, rather than fleeing. The Government proffered information, however, that a federal employee in the Transportation Security Administration had disclosed this covert ...