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United States v. Russian

United States District Court, D. Kansas

March 12, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES D. RUSSIAN, Defendant.

MEMORANDUM AND ORDER

ERIC F. MELGREN, District Judge.

Presently before the Court is the Government's Motion to Revoke the Magistrate's Order of Release, filed February 25, 2014. On March 5, 2014, the Court held a hearing on the motion. For the following reasons, the Government's motion is granted.

I. Factual and Procedural Background

On February 13, 2014, a federal grand jury charged Defendant James D. Russian ("Defendant") with being a felon knowingly in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Following a lengthy detention hearing with Magistrate Judge Kenneth G. Gale, Plaintiff was ordered released, despite the Government's objections, on $10, 000 cash bond and certain conditions pending trial.

After Judge Gale made his ruling, the Government indicated its intention to appeal his decision and moved for a stay of Defendant's release pursuant to D. Kan. R. 72.1.4. Judge Gale granted the Government's motion and ordered that the release order be stayed until 9:00 a.m. on February 26, 2014. The Government timely filed its appeal on February 25, 2014.

On this same date, the Government filed a Complaint against Defendant, charging him with one count of knowingly possessing a firearm in furtherance of a drug trafficking crime, namely possession with the intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)(A), and one count of possession with the intent to distribute more than 9.36 grams of marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1).[1] At that time, the Government moved for detention on the grounds that the Complaint charged offenses for which a minimum term of imprisonment is prescribed, which therefore creates a rebuttable presumption of detention, and that Defendant posed a risk of flight and danger to the community. Following a detention hearing on February 26, 2014, Judge Gale ordered Defendant committed to the custody of the Attorney General or his designated representative.

On March 4, 2014, a second federal grand jury indicted Defendant on the following charges: (1) one count of being a felon knowingly in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); (2) one count of being a felon knowingly in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1); (3) knowingly possessing a firearm in furtherance of a drug trafficking crime, namely possession with the intent to distribute a controlled substance, in violation of 18 U.S.C. § 924(c)(1)(A); and (4) knowingly and intentionally possessing, with the intent to distribute, marijuana, a controlled substance, in violation of 21 U.S.C. § 841(a)(1).

In the hearing for its Motion to Revoke on the original indictment, the Government again moved for detention on the grounds that the charges contained in the superseding indictment involve offenses for which a minimum term of imprisonment is prescribed, and which therefore creates a rebuttable presumption of detention, and that Defendant poses a serious risk of flight and danger to the community.

II. Legal Standard

The district court's authority to review a magistrate's detention order derives from 18 U.S.C § 3145(b) and is de novo. [2] However, the court need not conduct a de novo evidentiary hearing.[3] The district court, in its discretion, may either start from scratch or "incorporate the record of the proceedings conducted by the magistrate judge."[4] Regardless of which way it elects to proceed, the district court must decide "both the facts and propriety of detention anew without deference to the magistrate judge's finding."[5]

III. Standards for Detention

Under the Bail Reform Act of 1984, the Court must order an accused's pretrial release, with or without conditions, unless it "finds 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."[6] "The government has the burden to show that no condition or combination of conditions would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community."[7] Because risk of flight and danger to the community are "distinct statutory sources of authority to detain, " the government need only prove one or the other in order to have the defendant detained."[8]

In determining whether the government has met its burden, the court considers the following four factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence... or involves a minor victim or a controlled substance, ...

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