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United States v. McCollough

United States District Court, D. Idaho

August 30, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD MCCOLLOUGH, Defendant.

          MEMORANDUM OPINION & ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The Court has before it Defendant's Motion for Revocation of Detention Order and Request for Hearing (Dkt. 51). The Government opposes Defendant's motion (Dkt. 63). For the reasons herein, Defendant's motion is DENIED.

         FACTUAL BACKGROUND

         Defendant is charged with (1) conspiracy to aid and abet the distribution of 500 grams or more of methamphetamine and 5 kilograms or more of cocaine; (2) the actual distribution of 5 kilograms or more of cocaine; and (3) two counts of possession of a firearm in furtherance of those drug trafficking crimes. Magistrate Judge Ronald E. Bush ordered the continued detention of Defendant pending trial (Dkt. 36 & 39). Defendant asks the Court to overturn Judge Bush's decision.

         LEGAL STANDARD

         The Court reviews Judge Bush's order de novo. United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). But the “court is not required to start over in every case, and proceed as if the magistrate's decision and findings did not exist.” Id. Still, the District Judge “should review the evidence before the magistrate and make its own independent determination whether the magistrate's findings are correct, with no deference.” Id.

         To uphold the order, the Government must show (1) by clear and convincing evidence that the Defendant is a danger to the community, 18 U.S.C. § 3142(f)(2)(B), or (2) by a clear preponderance of the evidence that Defendant is a flight risk, United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). “Pretrial detention of a defendant without bail [is permissible] where it is demonstrated either that there is a risk of flight or no assurance that release is consistent with the safety of another person or the community Motamedi, 767 F.2d at 1406 (emphasis added); see also United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985) (“A lack of reasonable assurance of either the defendant's appearance or the safety or the community is sufficient; both are not required.”) (emphasis in original).[1] This Court is required to issue “written findings of fact and a written statement of the reasons for the [Defendant's] detention.” 18 U.S.C. § 3142(i).

         The parties nominally are in dispute regarding the appropriate presumption to apply in this case. Defendant argues in a point heading that “[t]he [c]harges in the [i]ndictment [r]equire a [p]resumption in [f]avor of [r]elease” (Dkt. 51 at 2 citing 18 U.S.C. § 3142(b)). In that same section however, Defendant acknowledges “[b]ecause of the nature of the charges in this case, there is a statutory rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant” (Dkt. 51 at 3). The Government argues that a rebuttable presumption in favor of Defendant's continued detention pending trial applies pursuant to 18 U.S.C. § 3142(e)(3) (Dkt. 63 at 2). The Court agrees. Due to the nature of the charges leveled against Defendant, the Court must presume, subject to rebuttal by Defendant, “that no condition or combination of conditions will reasonably assure the appearance of the … [Defendant] as required and the safety of the community.” 18 U.S.C. § 3142(e)(3).

         To determine whether there are conditions that will reasonably assure the Defendant's appearance and the safety of the community, the Court must consider:

         1. “the nature and circumstances of the offense charged, including whether the offense … involves … a controlled substance, [or] firearm, ” 18 U.S.C. § 3142(g)(1);

         2. “the weight of the evidence against … [Defendant], ” 18 U.S.C. § 3142(g)(2);

         3. “[Defendant's] character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings, ” 18 U.S.C. § 3142(g)(3)(A); and

         4. “the nature and seriousness of the danger to any person or the community that would be posed by … [Defendant's] ...


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