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United States v. Rice

United States District Court, W.D. Pennsylvania

December 13, 2017

UNITED STATES OF AMERICA,
v.
LAMAR RICE, Defendant.

          OPINION

          JOY FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE.

         On November 27, 2017, a magistrate judge found there was probable cause for the arrest of defendant Lamar Rice (“defendant”), but determined he would be released from custody on an unsecured bond of $50, 000.00 and subject to various conditions of release to ensure the safety of the community. (ECF Nos. 9-12.) The government appealed the decision of the magistrate judge. (ECF No. 8.) On December 4, 2017, this court held a hearing and conducted a de novo review of whether defendant should be detained pending trial. The court considered the transcript of the hearing held before the magistrate judge, the pleadings in this case, the pretrial services report prepared by the United States Probation and Pretrial Services Office (the “Pretrial Services Report”), and the arguments made and evidence presented by the parties at the hearing on December 4, 2017.

         The undersigned judge affirmed in part and reversed in part the decision of the magistrate judge and ordered defendant be detained pending trial. The court explained that defendant did not satisfy his burden to set forth some evidence to rebut the presumption of detention with respect to the danger he poses to the community, and, even if he had satisfied his burden, the government showed by clear and convincing evidence that he poses a risk of danger to the community, i.e., he is likely to engage in drug trafficking if released prior to trial. The court determined, however, that defendant rebutted the presumption that he is a risk of flight and the government did not satisfy its burden to show by a preponderance of the evidence that defendant is likely to flee if not detained pending trial. This opinion sets forth the reasons for the court's decision to detain defendant, which were detailed on the record.

         I. Background

         A. Procedural History

         On November 16, 2017, John Balish, a special agent of the United States Department of Justice, Federal Bureau of Investigation (“FBI”), filed a criminal complaint accusing defendant of the following crimes: possession with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii); maintaining a drug involved premises, in violation of 21 U.S.C. § 856(a)(1); and possession of ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (ECF No. 1.)

         On November 27, 2017, a detention hearing was held before a magistrate judge. (ECF No. 9.) The magistrate judge determined that risk of flight was not an issue in the case and that defendant established that there was a condition or combination of conditions that could be imposed to reasonably assure the safety of the community upon his release from incarceration pending trial. The magistrate judge denied the government's request to detain defendant pending trial and ordered defendant's release on an unsecured bond of $50, 000.00 with specified conditions.

         On the same day, the government filed a notice of appeal of the magistrate judge's decision. (ECF No. 8.) On December 1, 2017, the government filed a brief in support of its appeal. (ECF No. 15.) Defendant did not file a brief in response. On December 4, 2017, the undersigned judge held a de novo hearing with respect to defendant's detention status. After reviewing the transcript of the November 30, 2017, detention hearing and the Pretrial Services Report submitted by the pretrial services officer, and taking into consideration the evidence and arguments presented by the parties at the hearing held on December 4, 2017, the court ordered defendant be detained pending trial.

         B. Factual Background

         At the detention hearing before the magistrate judge on November 27, 2017, the government presented the testimony of Lee Niebel (“Niebel”), a detective with the Port Authority of Allegheny County Police Department, who is assigned to the FBI Western Pennsylvania Opioid Task Force. (H.T. 11/27/2017 (ECF No. 14) at 3.) At the hearing held before the undersigned judge on December 4, 2017, the government presented additional testimony from Niebel, and defendant presented testimony from his aunt, Diane Williams (“defendant's aunt”), and uncle, Robert Williams (“defendant's uncle”). Based upon the record and the pretrial services report, the following factual background was developed.

         1. The crimes charged in the criminal complaint

         Niebel was involved in the criminal investigation of defendant, which included executing search warrants on November 14, 2017, for defendant's person, his residence on Fourth Avenue in Pitcairn, Pennsylvania (“defendant's residence”), and 321 5th Avenue, McKeesport, Pennsylvania (the “McKeesport building”). (H.T. 11/27/2017 (ECF No. 14) at 3-4, 12-13.) At the time of the investigation, defendant had been convicted of at least one felony. (Id. at 26.) On November 14, 2017, law enforcement observed defendant leaving the McKeesport building and going to his residence. (Id. at 4.) Defendant was observed exiting the front door of his residence and walking down the side of the “breezeway.” (Id. at 5.) Defendant was detained in the parking lot behind his house where his truck was parked. (Id.) Defendant did not attempt to flee or run from law enforcement. (Id. at 13.) The search warrant for defendant's person was executed in the parking lot. (Id.) Law enforcement recovered two sets of keys from defendant's person; one set for defendant's residence and one for the McKeesport building. (Id.)

         In the basement of defendant's residence law enforcement found “a grow operation that had been torn down and put in boxes[, ]” which included “lamps, PVC pipes, irrigation supplies, fertilizers, hydroponic sensors, ventilation duct and fans.” (H.T. 11/27/2017 (ECF No. 14) at 5.) Law enforcement also found marijuana grow magazines and books and “receipts from Home Depot and high tech gardening stores for a lot of the equipment that was in the basement.” (Id. at 6.) On the second floor of the residence, law enforcement found ammunition in a bedroom that was being utilized as a walk-in closet. (Id. at 6, 15.) Law enforcement did not find marijuana or contraband at defendant's residence. (Id. at 13-15.) Various documents were found in defendant's residence, (H.T. 12/4/2017 at 27), including the following: a “72-Hour Shut-Off Notice” for 315 5th Avenue 15132 dated September 10, 2016, (ex. 1; H.T. 12/4/2017 at 27-28); and a Duquesne Light billing statement for 315 5th Avenue, McKeesport, Pennsylvania 15132 dated September 29, 2016, (ex. 2; H.T. 12/4/2017 at 29-30).

         The McKeesport building is a large commercial-sized building, including approximately four floors, a basement, and a loading dock. (H.T. 11/27/2017 (ECF No. 14) at 7, 17.) Inside the McKeesport building were mailboxes, one of which had an address of 315 5th Avenue, McKeesport, Pennsylvania. (H.T. 12/4/2017 at 28, 29.) On either the third or fourth floor of the building, law enforcement found “50 gallon or 100-gallon water drums with pumps going and a bunch of tools…as well as fertilizer, grow chemicals and grow booklets.” (H.T. 11/27/2017 (ECF No. 14) at 7, 22; H.T. 12/4/2017 at 18.) On the same floor, there was a room with “plastic all on the inside or like a tent with lights, fans, power amps, and the plants growing.” (Id. at 7-8.) There were “a lot of rooms prepped for growing[, ]” and “probably five…with actually plants in them.” (Id. at 8.) More than four hundred plants, which were in various stages of growth, were recovered from the McKeesport building. (Id. at 8, 22-23.) In the area of the McKeesport building where tools were stored, law enforcement found a pile of “Duquesne Light statements” for the McKeesport building. (H.T. 11/27/2017 (ECF No. 14) at 8.)

         Also in the McKeesport building was a small room that was set up as an office. (Id.) On the table in the office was a piece of glass “with a bunch of white powder residue, some small knotted baggies of white powder suspected to be fentanyl.” (Id.) Law enforcement also found in the office “[g]rinders, sifters, mannitol, which is commonly used to cut fentanyl, empty stamp bags, stamps, an Amazon box with a shopping label to” defendant, (id. at 9), and a “luggage check bag in…[defendant's] name[, ]” (H.T. 12/4/2017 at 30). According to Niebel, who has been a narcotics officer for “many years[, ]” heroin and fentanyl are mixed together with the use of a blender or coffee grinder. (Id. at 43-44.) The Pennsylvania State Police clandestine lab was called to process the evidence found in the office. (H.T. 11/27/2017 (ECF No. 14) at 9.) A large amount of spent and unspent .22 caliber pistol or long rifle casings were found in the office and “bullet holes that would appear to be of the .22 caliber size” were found throughout the building. (Id. at 10.)

         In an “open area” of the McKeesport building on the same floor as the grow operation, law enforcement found a “large wheeled toolbox filled with various power tools[, ]…[a] couple large water, 55 gallon drums with pumps that were pumping to the plants, a torpedo heater and a composition notebook as well as…Duquesne Light statements and some other indicia.” (H.T. 12/4/2017 at 30-31.) The following documents were recovered from the “open area:”

- a “Municipal Authority of Westmoreland County Certificate of Deposit” dated August 1, 2016, received from defendant “as security for payment of bills to be incurred for water service at 315 5th Avenue” dated August 1, 2016, (ex. 3; H.T. 12/4/2017 at 31);
- an envelope addressed to defendant at 315 5th Avenue, McKeesport, Pennsylvania, 15132 (ex. 4; H.T. 12/4/2017 at 32);
- a billing statement for account number “9811000” from the Municipal Authority of the City of McKeesport with a due date of July 6, 2017, (id.);
- a deposit slip from the Municipal Authority of the City of McKeesport for account number “M09811000” dated July 18, 2017, (id.);
- a “Notice of Insufficient Funds” from The Huntington National Bank addressed to “Rice Homes Inc [sic] 315 5th Ave [sic] McKeesport [sic] ¶ 15132” with a payment date of February 6, 2017, (ex. 5 H.T. 12/4/2017 at 32);
- a billing statement for sewage services from The Municipal Authority of the City of McKeesport for account number “M09811000” addressed to defendant at 315 5th Avenue, McKeesport, Pennsylvania 15132 with a due date of May 4, 2017, (ex. 6; H.T. 12/4/2017 at 32);
- a letter addressed to defendant at 315 5th Avenue, McKeesport, Pennsylvania 15132, from First Premier Bank, dated October 25, 2016, (ex. 7; H.T. 12/4/2017 at 33);
- a billing statement from the Municipal Authority of the City of McKeesport addressed to defendant at 315 Fifth Avenue, McKeesport, Pennsylvania 15132, with a due date of May 4, 2017, (ex. 8; H.T. 12/4/2017 at 33); and
- a piece of mail from The Huntington National Bank addressed to “Rice Homes Inc [sic] 315 5th Ave [sic] McKeesport [sic] PA [sic] 15132” (id.).

         In the composition notebook law enforcement found five pages with handwritten notes about “[t]he whole marijuana grow operation, the feeding and whatnot of the plants.” (Ex. 9; H.T. 12/4/2017 at 33-34.) The last page of the handwritten notes is dated October 2, 2012. (Ex. 10; H.T. 12/4/2017 at 41.) Other than the “grow operation” and office, the McKeesport building was “completely vacant.” (H.T. 12/4/2017 at 29.)

         A male approached law enforcement while they were at the McKeesport building. (H.T. 11/24/2017 (ECF No. 14) at 11.) The male said he was from a business across the street and “asked what was going on.” (Id.) The law enforcement instructed him that “some police activity” was taking place. (Id.) The man told the law enforcement that the building ...


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