This matter is before the Court on the Motion to Detain (Doc. 5) filed by the United States on December 18, 2006. For the reasons set forth below, the motion is DENIED.
On December 21, 2006, this Court held a detention hearing on Louis McCottrell ("Defendant"). At the hearing, the Court took judicial notice of the pretrial services report and the underlying indictment. The government proffered evidence that Defendant would be a danger to the community and a flight risk if released on a bond, moving that the Court detain him pending the trial. In turn, Defendant proffered evidence in opposition to the government.
18 U.S.C. §3142 provides that a person charged with an offense may be released on personal recognizance or bond, released with conditions, or detained pursuant to subsection (e). Detention is required if the Court finds that there is "no condition or combination of conditions that 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). Upon motion by the government, when certain offenses are charged or when there is a risk of flight or obstruction of justice, a detention hearing is held in which the government has a clear and convincing burden to show that detention is appropriate. 18 U.S.C. §3142(f). However, if the Defendant is subject to the provisions of subsection (e), a rebuttable presumption arises in favor of detention. This presumption imposes on the defendant only a burden of production -- the burden of persuasion concerning the risk of flight and dangerousness remains with the government. United States v. Portes, 786 F.2d 758,764 (7th Cir. 1985). The Seventh Circuit Court of Appeals has held that to rebut the presumption, defendants need not produce evidence that they are innocent of the charged crime. Rather, they may show that "the specific nature of the crimes charged or . . .something about their individual circumstances" suggest that they are not dangerous or likely to flee. United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986).
In the case at bar, the rebuttable presumption applies. Accordingly, the government argued at the hearing that the circumstances giving rise to the indictment indicate that Defendant would be a danger to the community and a flight risk if released on a bond. More specifically, the government stressed that the quantity of drugs involved is considerably large. In response, Defendant argued that, although he stands accused of a serious crime, he nonetheless has relatively little criminal history, which indicates that he poses no threat to the community. Defendant also argued that because he took the initiative to self-surrender after learning of the indictment against him, the government and the Court should not consider him a flight risk. Lastly, Defendant asked the Court to take notice of the pretrial services report, which recommends that Defendant be released on a bond and proposes conditions to address the risks of nonappearance and danger. Defendant stated that the proposed conditions are reasonable in light of the facts here and stated further that he would willingly comply with those conditions if he were released on a bond.
Section 3142(g) sets forth the factors for the judicial officer to consider in determining whether to release a defendant. These factors must be considered whenever release is sought. The factors are:
1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
2) the weight of the evidence against the person;
3) the history and characteristics of the person, including-
(A) the persons 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 persons release.
The Seventh Circuit has warned that the trial court may not disregard any of these factors. United States v. Torres, 929 F.2d 291, 291-92 (7th Cir. 1991) (stating, for example, "[i]f, as the statue provides, family ties are relevant to the probability of ...