United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER OF COURT
TERRENCE F. McVERRY, Senior District Judge.
Pending before the Court is the government's NOTICE OF APPEAL OF RELEASE ORDER (ECF No. 80). Defendant Donte Yarbough ("D. Yarbough" or "Defendant") has filed a brief support of pre-trial release (ECF No. 82), and the government has filed a brief in support of detention (ECF No. 83). An oral argument was held before the undersigned on Tuesday, December 23, 2014. Accordingly, the appeal is ripe for disposition.
On December 9, 2014, a federal grand jury sitting in the Western District of Pennsylvania returned a seven-count indictment in which it charged twelve individuals with, inter alia, the following: at Count One, conspiracy to possess with the intent to distribute-(a) one kilogram or more of heroin (Barlow, Brown, Butler, Joseph, Scott, D. Yarbough, L. Yarbough); (b) 100 grams or more of heroin (Akins, Pryor, Robinson, Springer); and (c) less than 100 grams of heroin (Means)-from in an around a date uncertain in 2008 and continuing thereafter to in and around October 2012 in violation of 21 U.S.C. § 846. Defendant was also charged at Count Three and Count Five with possession with the intent to distribute and distribution of heroin on or about (respectively) July 11, 2011 and September 6, 2012 in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). If convicted of the crimes charged, Defendant faces a statutory mandatory minimum term of imprisonment of not less than ten (10) years to a maximum of life at Count One and a term of imprisonment of not more than twenty (20) years at Counts Three and Five. These potential penalties may, however, increase based on Defendant's four prior felony drug convictions. If the government files an information to establish one prior conviction pursuant to 21 U.S.C. § 851, Defendant will face a statutory mandatory minimum term of imprisonment of not less than twenty (20) years to a maximum of life at Count One and a term of imprisonment of not more than thirty (30) years at Counts Three and Five. But if the government files a § 851 information as to two or more of these prior felony drug convictions, Defendant will face a mandatory sentence of life imprisonment.
On December 11, 2014, Defendant appeared before Magistrate Judge Maureen P. Kelly for his initial appearance at which he pleaded not guilty to the crimes charged against him in the indictment. Upon motion of the government, Magistrate Judge Kelly entered an Order of Temporary Detention pending a hearing pursuant to the Bail Reform Act.
On December 17, 2014, Defendant appeared before Magistrate Judge Lisa Pupo Lenihan for a detention hearing. At the hearing, the government offered no testimony or proffer but instead emphasized that under the Bail Reform Act the crimes with which Defendant is charged creates a rebuttable presumption that no condition or combination of conditions will reasonably assure appearance of Defendant as required and safety of community. The government also highlighted Defendant's four prior felony drug convictions, some of which were committed while on probation or parole. For his part, Defendant called his fiance, Ronnae Demery, as a witness to testify on his behalf. Ms. Demery testified that she and Defendant live together with their four children, including a four-month old child with serious health issues, that Defendant acts as the primary caregiver of their children during the day, and that he worked as a youth counselor. On cross-examination, Ms. Demery admitted that Defendant smoked marijuana on a daily basis before his arrest but claimed that he did not do so in front of their children.
At the conclusion of the hearing, Magistrate Judge Lenihan found that Defendant was not a flight risk and that home confinement would assure the safety of the community, and therefore, ordered him released subject to certain conditions. The government requested and Magistrate Judge Lenihan entered a stay pending an appeal to this Court. The government filed its Notice of Appeal the following day.
The Court has reviewed the transcript of the proceeding conducted before Magistrate Judge Lenihan, considered the information and material set forth in the parties' filings, and heard oral argument on this matter in an expedited fashion in light of Defendant's important liberty interest. In its review of the record evidence, this Court respectfully disagrees with the Magistrate Judge and concludes that Defendant has not overcome the presumption of detention.
II. Standard of Review
Section 3145 of Title 18 sets forth the procedure for review and appeal of a release or detention order entered by a United States Magistrate Judge and provides, in relevant part, as follows:
If a person is ordered released by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court-
(1) the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release....
18 U.S.C.A. § 3145(a). The district court reviews a magistrate judge's denial of pretrial detention de novo. United States v. Delker, 75 ...