The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole
MEMORANDUM OPINION AND ORDER
Mr. Williams has been charged in a two-count indictment with distribution of ecstasy, in violation of 21 U.S.C.§ 841(a)(1), and possession of a sawed-off shotgun, in violation of 26 U.S.C. § 5861(d). Pursuant to § 841(a)(1), Count One carries, among other things, a maximum sentence of ten years' imprisonment, which triggers a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant and the safety of the community. See 18 U.S.C.§3142(e)(3)(A). The Government has moved to detain the defendant.
Under the Bail Reform Act, there is a rebuttable presumption that in cases involving certain specified, serious offenses there is no set of conditions that will reasonably assure the appearance of the defendant at trial or the safety of the community. The crimes charged in this case fall within that classification. See 18 U.S.C. §§3142(e) and (f)(1)(A) --(E). To rebut the presumption, all that is required is the defendant present some evidence to the contrary. United States v. O'Brien, 895 F.2d 810, 815 (1st Cir. 1990); United States v. Carbone, 793 F.2d 559, 560 (3rd Cir. 1986). The ultimate burden of proof of risk of flight and danger to the community is the government's.
The Bail Reform Act's preference for liberty -- a preference that is consistent with and demanded by our entire heritage -- ensures that pretrial detention will occur only in the rarest of circumstances. Hamilton v. Lyons, 74 F.3d 99, 105 (5th Cir. 1996). As the Supreme Court has stressed, "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755 (1987). Thus, 18 U.S.C. § 3142(a) and (b) require that a person charged with an offense shall be released on personal recognizance or upon execution of an unsecured appearance bond unless further conditions are necessary to reasonably assure attendance at trial and the safety of the community.
The preference for release accounts for the requirement that the judge consider the possibility of less restrictive alternatives to detention. United States v. Infelise, 934 F.2d 103, 105 (7th Cir. 1991)(Posner, J.). See also United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985). Doubts regarding the propriety of release should be resolved in the defendant's favor. United States v. Wilbon, 54 F.3d 788 (10th Cir. 1995); United States v. Gebro, 948 F.2d 1118 (9th Cir. 1991); United States v. Barnett, 986 F.Supp. 385, 392 (W.D. La. 1997)(collecting cases).
Thus, merely because Mr. Williams is charged with an offense involving drugs and guns, does not mean that, as a matter of law, bond cannot be granted. Salerno, 481 U.S. at 750. Indeed, there are cases involving crimes of violence or drug trafficking where bond either has been granted or where the court made clear that bond was at least a theoretical possibility. See Infelise, 934 F.2d at 105; United States v. Leonti, 326 F.3d 1111, 1114 (9th Cir. 2003); United States v. O'Dell, 204 F.3d 829 (8th Cir. 2000); United States v. Gigantei, 39 F.3d 42, 48 (2nd Cir. 1994); United States v. Mancuso, 726 F.Supp. 1210, 1214 (D.Nev. 1989). In United States v. Ploof, 851 F.2d 7, 11-12 (1st Cir. 1988), the First Circuit stressed that even where there was serious risk of obstruction, intimidation, threat, or death to prospective witness, detention still requires showing that no set of conditions will "reasonably assure" safety. (Emphasis in original).
Given the discretionary nature of bond decisions, cases can be found to support or deny bond in any almost any situation. Indeed, on the same set of facts, two decision makers can arrive at opposite decisions and either may be deemed an appropriate exercise of discretion. United States. v. Banks, 546 F.3d 507, 508 (7th Cir. 2008). Since decisions under the Bail Reform Act are discretionary, there must be a consideration of the factors relevant to that exercise, cf., United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). The factors that inform bond decisions are: the nature of the circumstances of the offence charged, the weight of the evidence, the history and characteristics of the person, including whether at the time of the current offense the person was on other release pending trial under federal, state or local law, the person's family ties, length of residence in the community, appearance at court proceedings, and the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. §1342(g)(1)-(4).*fn1
The Bail Reform Act does not require the government to show with certainty that a particular defendant poses a risk of flight or danger to the community. It recognizes that to some extent bond decisions are exercises in uncertain prophesy. But at the same time the Act is properly premised on the theory that there is nothing inherently unattainable about a prediction of future criminal conduct, and the fact-intensive assessment of all relevant factors and the various safeguards under the Act are specifically designed to further the accuracy of that determination. Salerno, 481 U.S. at 751. It is significant that even the defendant in Salerno who had contended that the Bail Reform Act impermissibly allowing detention based on predictions of future dangerousness, conceded that an arrestee may be incarcerated until trial if he presents a danger to witnesses (or a risk of flight). 481 U.S. at 749.*fn2
After conducting a detention hearing as required by §3142(f), and upon consideration of the evidence proffered by the government and the defendant, which included the testimony of the defendant's wife, Tatiana Plummer, and the contents of the reports prepared by the United States Pretrial Services Office ("PTSO Report"), I find that the government has proven, by clear and convincing evidence,*fn3 that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the defendant is released. With respect to each of the statutory factors enumerated in §3142(g), I find:
(a) Nature and Circumstances of the Offense: The nature and circumstances of the offenses with which the defendant is charged includes an alleged series of narcotics and firearms transactions conducted out of, among other places, the defendant's residence. Section 3142(g)(1) explicitly lists, and this Court finds, that offenses involving controlled substances and firearms are very serious offenses. Thus, the nature of the charged offenses weighs in favor of detention.
(b) Weight of the Evidence: While all defendants are presumed innocent, that presumption obviously does not render unnecessary an analysis of the factors prescribed to §3142, or bond would necessarily be granted in all cases. The government's proffer has shown the weight of the evidence against the defendant to be quite strong. In addition to an incriminating post-arrest statement, the evidence includes multiple video and audio recordings of undercover purchases of narcotics and firearms with the defendant. The audio recordings include several ...