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November 15, 2005.


The opinion of the court was delivered by: YVETTE KANE, District Judge


Pending before the Court is the Motion of the United States for Revocation of the Magistrate Judge's September 27, 2005 Order of Release. (Doc. No. 18.) The motion has been fully briefed and the Court heard testimony and argument on October 4, 2005. For the reasons set forth below, the motion will be granted and Defendant will be ordered detained pending trial.

I. Background

  On September 21, 2005, a federal grand jury sitting in Harrisburg, Pennsylvania, returned a three-count indictment against Defendant. Count I of the indictment charged Defendant with distributing and possessing with the intent to distribute 50 grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1), which carries a minimum sentence of 10 years in prison. Count II of the indictment charges Defendant with distributing crack cocaine within 1,000 feet of a public housing facility in violation of 21 U.S.C. § 860, which exposes Defendant to twice the maximum punishment authorized by 21 U.S.C. § 841(b). Count III represents a forfeiture count filed pursuant to 21 U.S.C. § 853.

  Defendant was arrested on September 23, 2005, and on that date Defendant appeared before Magistrate Judge J. Andrew Smyser to be arraigned. At that time, the Court granted Defendant's request to continue his arraignment and detention hearing until September 27, 2005.

  Prior to Defendant's initial appearance, the United States moved for Defendant's pretrial detention. In support of this motion, the United States argued that there existed a rebuttable presumption that Defendant posed both a flight risk and a danger to the community. Specifically, the United States asserted that due to the nature of the crimes charged, Defendant is presumed to be both a flight risk and a danger to the community under 18 U.S.C. § 3142(e). Additionally, the United States proffered evidence of the danger Defendant posed to the Carlisle, Pennsylvania community in which he lives, noting that since September 2004, Defendant has been arrested on several occasions for selling crack cocaine, and further noting that law enforcement officers made controlled purchases of crack cocaine from Defendant while he was on bail on other charges of crack distribution that were pending in Commonwealth Court. The United States also proffered that the government has videotaped surveillance that shows Defendant selling crack cocaine out of his Carlisle, Pennsylvania home, and that the government seized 20 grams of crack cocaine from the residence.

  Defendant responded to the United States, also by way of proffer. Defendant's counsel advised Magistrate Judge Smyser that Defendant was a long-term resident of Carlisle, Pennsylvania and resides with his mother and father and has not been convicted of any crimes committed as an adult. Additionally, counsel indicated that Defendant is enrolled at Harrisburg Area Community College and plans to apply to college in Maryland where he hopes to play basketball.

  Defendant's father also testified during the detention hearing in support of a request that the father be appointed as a third-party custodian of Defendant. Mr. Anderson testified that his son has lived at home his entire life, and that he provides limited assistance to his mother, who is confined to the home as a result of a stroke. Mr. Anderson acknowledged that he works very long hours and is not consistently present in order to supervise his son's activities during the day.

  Following this testimony, Magistrate Judge Smyser found that the United States had not demonstrated probable cause to detain Defendant pending trial. In so finding, Judge Smyser specifically disagreed with the United States' assertion that the grand jury's finding of probable cause to charge Defendant was sufficient to trigger a presumption of dangerousness. (Transcript of September 27, 2005, at. 20-21.) Judge Smyser asserted that the government was not required to rely only on the grand jury's probable cause finding of probable cause, and stating "that there are circumstances where the actual evidence that supports a charge ought to be presented to the Court, and this seems to me to be such a case." (Id. 21.) Upon a request from the United States for clarification on his ruling, Magistrate Judge Smyser did not specify whether it was the position of the Court that the grand jury's probable cause determination was insufficient to trigger a presumption of dangerousness under 18 U.S.C. § 3142(e). (Id.)

  Subsequently, the United States filed the instant motion before the Court requesting a de novo review of Judge Smyser's denial of the government's detention motion, and requesting that such denial be revoked. (Doc. No. 18.) On October 4, 2005, the Court heard argument on the motion and the government presented testimony of Jeffrey Kurtz, a detective with the Carlisle Police Department involved in the investigation of Defendant's involvement in drug trafficking, whose testimony is discussed more fully below.

  II. Legal Standard

  This Court has jurisdiction to review the Magistrate Judge's denial of pretrial detention pursuant to 18 U.S.C. § 3145(a). That statute requires that the Court make a de novo determination of the Magistrate Judge's findings underlying the order of release. United States v. Delker, 757 F.2d 1390, 1394 (3d Cir. 1985). To the extent the Magistrate Judge provides reasons for denying pre-trial detention, those articulated reasons must be given "respectful consideration." United States v. Suppa, 799 F.2d 110, 120 (3d Cir. 1986).

  Pretrial detention may be ordered only if, after a hearing, a "judicial officer finds that no condition or combination of conditions will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(e). In making such a finding, a court employs an evidentiary presumption:
Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure . . . 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 is prescribed in the Controlled Substances Act (21 U.S.C. § 801 et seq.). . . .
18 U.S.C. § 3142(e). The United States Court of Appeals for the Third Circuit has held that because an indictment by a grand jury conclusively demonstrates that probable cause exists to implicate a defendant in a crime, "[t]he indictment, coupled with the government's request for detention, is a sufficient basis for requiring an inquiry into whether detention may be necessary. . . ." Suppa, 799 F.2d at 118 (3d Cir. 1986) (quoting United States v. Hurtado, 779 F.2d 1467, 1478 (11th Cir. 1985)). In reaching this conclusion, the Third Circuit stated that to "[accord] this effect to an indictment is consistent with the holding that an indictment is a sufficient substitute for a preliminary hearing to establish probable cause." Suppa, 799 F.2d at 119 (citation omitted).
  However, a probable cause finding predicated on an indictment will not necessarily be sufficient alone to cause detention, "since the presumption of § 3142(e) shifts to the defendant only the burden of producing evidence of lack of dangerousness, the burden of persuasion on dangerousness remaining always with the government." Id. The Third Circuit, quoting a decision from the United States Court of Appeals for the Eleventh Circuit, explained:
The showing of probable cause (by means of an indictment) may be enough to justify detention if the defendant fails to meet his burden of production, or if the government's showing is sufficient to countervail the defendant's proffer, . . . but it will not necessarily be enough, depending upon whether it is sufficient to carry the government's burden of persuasion.
Id. (quoting Hurtado, 779 F.2d at 1478) (emphasis in original). The Third Circuit has suggested evidence that might be adequate to rebut the ...

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