United States District Court, E.D. Washington
ORDER DENYING DEFENDANT'S MOTION TO MODIFY
R. SUKO SENIOR U.S. DISTRICT COURT JUDGE.
THE COURT is Defendant's “Motion to Reopen
Detention Hearing and Modify Detention Order.” ECF No.
87 (4:15-CR-6031-EFS-1); ECF No. 235 (2:04-CR-6045-EFS-1).
The motion was heard with oral argument on April 27, 2017 in
Yakima. Defendant was present and represented by Nicholas
Marchi. The United States is represented by Assistant United
States Attorney Laurel J. Holland.
initially requested to proceed pro se for purposes
of the hearing. The undersigned thereafter engaged in a
preliminary discussion with Defendant pursuant to Faretta
v. California, 422 U.S. 806, 807 (1975). Defendant
subsequently agreed to have Mr. Marchi continue to represent
him for purposes of the bail review motion, and the Court
determined Defendant would be permitted to present
supplemental argument on the motion.
previously waived the right to a bail hearing and, on
September 21, 2015, Magistrate Judge James P. Hutton granted
the United States' motion for detention. ECF No. 23.
Defendant was thereafter detained, and the original pretrial
services report, ECF No. 15, was limited to the criminal
history of Defendant. Defendant now avers a change of
circumstances: if released, he has a residence to live in,
employment, and an appointment for counseling services. ECF
No. 87 at 2.
sides presented argument. The United States asserted
Defendant has not submitted sufficient evidence to rebut the
presumption of detention in this case. The United States
argued that Defendant, if released, would present a risk of
flight and a danger to the safety of the community. Defendant
requested his release on personal recognizance or, in the
alternative, the setting of conditions of release to ensure
his attendance at future proceedings. ECF No. 87 at 4.
Court has taken into account the information and evidence
produced at this hearing concerning the nature and
circumstances of the offense charged, the weight of the
evidence against the Defendant, his history and
characteristics, including character, physical and mental
condition, family ties, employment, financial resources,
length of residence in the community, community ties, past
conduct, history relating to alcohol and drug abuse, criminal
history, record concerning appearance at court proceedings,
and the nature and seriousness of the danger to the community
posed by Defendant's release.
purposes of Case No. 4:15-CR-6031-EFS-1, there is a
rebuttable presumption that Defendant is a flight risk and a
danger to the community based on the nature of the pending
charge in this case. 18 U.S.C. § 3142(e). Although the
presumption shifts the burden of production to Defendant, the
burden of persuasion remains with the United States. See
United States v. Hir, 517 F.3d 1081, 1086 (9th Cir.
2008). The Court finds Defendant has not rebutted the 18
U.S.C. § 3142(e) presumption and has not met the burden
of production establishing there are conditions which will
reasonably assure his appearance and the safety of the
purposes of Case No. 2:04-CR-6045-EFS-1, the Court finds
that, pursuant to Fed. R. Crim. P. 32.1(a)(6), Defendant has
not met his burden of establishing by clear and convincing
evidence that there are conditions or a combination of
conditions that would reasonably assure his presence at trial
and the safety of the community.
Court further finds the United States has established by a
preponderance of evidence an absence of conditions or
combination of conditions that would reasonably assure this
Defendant's presence at trial and has established by
clear and convincing evidence that Defendant poses a present
risk to the safety of other persons or the community.
1. Defendant's Motion to Modify the Court's detention
order, ECF No. 87 (4:15-CR-6031-EFS-1); ECF No. 235
(2:04-CR-6045-EFS-1), is DENIED. Defendant shall be held in
detention pending disposition of this case or until further
order of the court.
2. Defendant is committed to the custody of the U.S. Marshal
for confinement separate, to the extent practicable, from
persons awaiting or serving sentences or being held in
custody pending appeal.
3. Defendant shall be afforded reasonable opportunity for
private consultation with counsel.
4. If a party desires this Court to reconsider conditions of
release because of material and newly discovered
circumstances pursuant to 18 U.S.C. § 3142(f), that
party shall file a two-page motion for reconsideration
succinctly stating what circumstances are new, how they are
established, and the requested change in conditions of
release. The motion shall indicate whether opposing counsel
or Pretrial Services object, whether a hearing is desired,
and whether a supplemental pretrial report is requested. This