The opinion of the court was delivered by: Honorable Hugh B. Scott United States Magistrate Judge
Pending before the Court is a motion (Dkt. Nos. 8, 20) by defendant Darryl Peoples for reconsideration of his detention status. Defendant has been in custody since his pre-indictment initial appearance on December 8, 2011. In support of reconsideration, defendant argues that his circumstances have changed in several ways that show that he has no intention to abscond and that the Government's case has weakened over time. The Government opposes reconsideration, contending that defendant has presented no new information except that he has hired private counsel, which does not offset his prior criminal history. The United States Probation Office ("USPO") recommends continued detention.
The Court held oral argument on May 8 and June 18, 2012. For the reasons below, the Court denies defendant's motion.
This case concerns allegations that defendant possessed cocaine base with intent to distribute and maintained a premises to help him do so. The indictment, filed on December 20, 2011, contains three counts. In Count One, the Government charged defendant with possession, with intent to distribute, of a quantity of a mixture or substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In Count Two, the Government charged defendant with possession, with intent to distribute, of a different quantity of a mixture or substance containing cocaine base, at a different location, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). In Count Three, the Government charged defendant with knowingly, intentionally, and unlawfully using and maintaining a premises for the purpose of manufacturing, distributing, and using cocaine base, in violation of 21 U.S.C. § 856(a)(1).
The Court arraigned defendant on December 21, 2011. Prior to the indictment, when defendant was arrested on a criminal complaint, the Court held a detention hearing on December 12, 2011. At the conclusion of the detention hearing, the Court held orally that defendant would remain in custody because he presented a risk of danger to the community and a risk of flight.
The Court relied on defendant's pretrial services report, dated December 8, 2011, when ordering detention. According to the pretrial services report, defendant never has had steady employment. Until the time of arrest, defendant had used alcohol and marijuana daily since age 13 and cocaine daily since age 16. Defendant also began using "designer drugs" like Ecstasy and GHB at age 40 and had used those once or twice per month. Defendant reported that for about 45 days before his arrest, he had been gambling approximately every other day. As for criminal history, defendant has had five felony convictions, three of which concerned drug-related offenses. Defendant's criminal history includes one probation revocation in 1994, one parole violation and 2006, and multiple bench warrants issued for non-appearance during the pendency of some of the prior criminal cases. USPO recommended detention at the time of the pretrial services report and maintained that position in an update memo dated June 15, 2012.
On March 25, 2012, defendant filed the pending motion for reconsideration (Dkt. No. 8); on June 11, 2012, he filed a supplement to that motion (Dkt. No. 20). In support of his motion, defendant makes several arguments to show that circumstances have changed significantly since the detention hearing. First, defendant has hired a private attorney, which supposedly he would not have done if he did not take the case seriously and instead intended to abscond. Second, defendant argues that the Government has not yet confirmed the quantity of drugs in question by way of a lab report. The Government appears to have mooted this argument by furnishing a lab report around March 30, 2012.
Third, defendant argues that the Government has not provided the search warrant and the search warrant application pertaining to him, which at the least makes the strength of the case against him ambiguous. At the supplemental oral argument on June 18, 2012, the Government acknowledged that it needed to furnish those materials; the Court set a deadline of June 28, 2012 for production. Finally, defendant argues that the Government should not be allowed to detain defendant while defendant examines potential discrepancies in the documentation for this case. For example, defendant emphasizes the need to examine the search warrant materials because the criminal complaint describes the premises searched as "539 Plymouth (Rear)," while the indictment describes the premises as "539 Plymouth (Lower)."
The Government opposes defendant's release. The Government contends that defendant's situation has not changed in any material way since the detention hearing. If anything, according to the Government, the case against defendant has strengthened now that a lab report is available that confirms that 28.37 grams of cocaine base are at issue. That quantity would trigger a mandatory minimum imprisonment of five years upon conviction; the mandatory minimum could increase to 10 years under 21 U.S.C. § 851 given defendant's prior felony convictions. The Government argues further that defendant's decision to retain private counsel does not affect whether he is a flight risk or a danger to the community.
"The Eighth Amendment to the Constitution states that '[e]xcessive bail shall not be required.' U.S. Const. amend. VIII. Consistent with this prohibition, 18 U.S.C. § 3142(b) requires a court to order the pre-trial release of a defendant on a personal recognizance bond 'unless the [court] determines that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.'" U.S. v. Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007). Statutory factors to be considered when assessing flight or danger include the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See 18 U.S.C. § 3142(g).
With respect to flight risk, "the government carries a dual burden in seeking pre-trial detention. First, it must establish by a preponderance of the evidence that the defendant, if released, presents an actual risk of flight. Assuming it satisfies this burden, the government must then demonstrate by a preponderance of the evidence that no condition or combination of conditions could be imposed on the defendant that would reasonably assure his presence in court." Sabhnani, 493 F.3d at 75 (citations omitted). "To order detention, the district court must find, after a hearing, that the government has established the defendant's dangerousness by clear and convincing evidence. The ...