The opinion of the court was delivered by: R. Barclay Surrick U.S. District Judge
SURRICK, J. NOVEMBER 29, 2010
Presently before the Court is Defendant's Motion for Revocation of Magistrate Judge's Order to Detain Petitioner (ECF No. 11). For the following reasons, Defendant's Motion will be granted.
It is alleged that in August 2010, Defendant Luis A. Gonzalez met with a confidential informant and spoke with him on the telephone on various occasions. They arranged for Defendant to provide the confidential informant with a vehicle that contained a hidden compartment. Defendant was to purchase ten kilograms of cocaine that the confidential informant would hide in the vehicle. On September 23, 2010, the confidential informant with the assistance of federal agents placed sham cocaine in the hidden compartment of the vehicle. Defendant and the confidential informant met at a pre-arranged location. As Defendant took possession of the vehicle, he was arrested by federal agents who observed the entire encounter.
On September 24, 2010, the Government filed a criminal complaint against Defendant. On October 6, 2010, a detention hearing was held pursuant to 18 U.S.C. § 3142(f). Magistrate Judge Henry S. Perkin found that Defendant posed a danger to the community and ordered his pretrial detention. Magistrate Judge Perkin also concluded that there were steps that could be taken to assure Defendant's appearance at trial. In reaching his conclusions, Judge Perkin characterized this as a very difficult case. On October 21, 2010, a federal grand jury indicted Defendant on one count of attempt to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846.
Defendant contends that the Magistrate Judge erred in concluding that he posed a danger to the community.We held a hearing on November 16, 2010.
We review a magistrate judge's pretrial detention determination de novo. United States v. Delker, 757 F.2d 1390, 1395 (3d Cir. 1985). The Bail Reform Act authorizes a judicial officer to detain a defendant pending trial upon a 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); United States v. Perry, 788 F.2d 100, 106 (3d Cir. 1986). In determining whether a defendant is dangerous or poses a risk of flight, we are guided by the following statutory factors:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, including:
(A) the person'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; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. § 3142(g).
The Act creates a presumption that no condition or combination of conditions will reasonably assure the appearance as required and 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 tens years or more is prescribed in the Controlled Substances Act, 21 U.S.C. § 801, et seq. § 3142(e); United States v. Strong, 775 F.2d 504, 506-07 (3d Cir. 1985). The defendant may rebut this presumption by producing evidence to the contrary. If the defendant does rebut the presumption, the government must then convince the court by a preponderance of the evidence that the defendant is a flight risk or must prove by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of the community. See United States v. Thomas, No. 08-0020, 2008 WL 2557997, at *2 (D.V.I. June 23, 2008) (citing United States v. Himler, 797 F.2d 156, 160-61 (3d Cir. 1986)); see also § 3142(f).
Defendant is charged with a narcotics offense for which there is a mandatory minimum imprisonment of ten years with a maximum of life. In addition, there is probable cause to believe that Defendant committed the charged offense. Indeed, the case against Defendant appears to be strong. A confidential informant is prepared to testify against Defendant at trial. The Government has transcripts of incriminating telephone conversations between ...