United States District Court, W.D. Washington, Tacoma
Theresa L. Fricke United States Magistrate Judge
COURT conducted a hearing under the Bail Reform Act, 18
U.S.C. § 3142(e), (g) on the government's Motion for
Detention (Dkt. 4) on December 12, 2019 and determined that
detention is appropriate because no condition or combination
of conditions will reasonably assure the safety of any other
person and the community.
defendant is charged in the United States District Court for
the District of Alaska with two felony counts, both of which
carry a maximum penalty of ten years or more. In Count 1, the
Indictment charges Mr. Ayers with attempted distribution of
controlled substances - 50 grams or more of actual
methamphetamine, under 21 U.S.C. §§ 841(a)(1),
(b)(1)(A). In Count 2, the Indictment charges him with
attempted distribution of controlled substances-a mixture and
substance containing a detectable amount of heroin under 21
U.S.C. §§ 841(a)(1), (b)(1)(C). Charging documents,
Dkt. 1. Under Fed. R. Crim. P. 5(c)(2), (3), and 5(d), Mr.
Ayers was arrested in Washington State and was brought to the
United States District Court for the Western District of
Washington for an initial appearance on December 9, 2019.
Dkt. 5. Mr. Ayers waived the Fed. R. Crim. P. 5(c)(3) hearing
to determine identity and consented to be transferred to the
District of Alaska. Dkt. 8.
Fed. R. Crim. P. 5(c), (d), it is important for the Court in
the arresting jurisdiction to consider the interests of the
charging jurisdiction; in this matter, interests of The
United States District Court for the District of Alaska in
following up on the Grand Jury's Indictment, and to
ensure the defendant appears for proceedings in that Court,
are considered. United States v. Dominguez,
783 F.2d 702, 704-05 (7th Cir. 1986); United
States v. Savader, 944 F.Supp.2d 209, 213-215 (E.D.N.Y.
defendant is entitled to a presumption of innocence, and
under the Bail Reform Act, the Court is required to determine
-- taking into full consideration the defendant's
constitutional rights and that the defendant is presumed
innocent -- whether the defendant should nevertheless be
detained pending trial. United States v. Motamedi,
767 F.2d 1403, 1408 (9th Cir. 1985).
presumption of detention applies in Mr. Ayers' situation,
because the Court is required by 18 U.S.C. §
3142(e)(3)(A) to apply the presumption as to both
dangerousness and flight risk when a defendant is charged
with a felony drug offense that with a maximum sentence of
ten years or more. Dkt. 1. The defendant bears the burden of
proffering evidence to overcome the presumption. The
government maintains the burden of persuading the Court by a
preponderance of the evidence that Mr. Ayers is a
non-appearance risk, or by clear and convincing evidence that
Mr. Ayers is a danger to the community. United States v.
Hir, 517 F.3d 1081, 1086 (9th Cir. 2008).
When the defendant offers evidence to rebut the presumption,
that does not mean the presumption is erased; the Court may
consider the presumption as an evidentiary finding that
militates against the defendant's release and weighs the
presumption along with all the factors listed in 18 U.S.C.
§ 3142(g). Id.
the four factors listed in 18 U.S.C. § 3142(g) permit
this Court to consider the nature of the offense currently
charged, and the evidence of guilt, these factors are
considered only in the context of evaluating the likelihood
that the person will fail to appear or will pose a danger.
United States v. Motamedi, at 1408. Even if a
defendant poses a danger to others or to the community, the
defendant must be released when the Court determines there
would be a “condition or combination of conditions
[that] will reasonably assure. . .the safety of any other
person and the community.” United States v.
Hir, 517 F.3d 1081, 1091-92 (9th Cir. 2008).
defendant proffered evidence in this case, but has not
overcome the presumption of detention. The government met its
burden of showing by a preponderance of the evidence an
extreme risk of flight or failure to appear. The government
also met its burden of showing by clear and convincing
evidence that Mr. Ayers presents a serious risk of
dangerousness to others and to the community.
risk of flight, the defendant absconded from supervision on a
King County Superior Court Sentence imposed on 9-20-2013
(government's Ex. 2). The Supplemental Pretrial Services
Report, and the government's Ex. 2, show that Mr. Ayers
absconded from supervision in April or May of 2014 and he was
not apprehended until April 2019. For approximately five
years, he absconded from supervision -- this shows that Mr.
Ayers disregarded the authority of the King County Superior
Court and did not conform his behavior to comply with the
terms of his sentence. This evidence overwhelmingly
establishes that Mr. Ayers would likely be an extreme flight
risk and he also presents a serious risk of failure to appear
if he was released on supervision.
the potential risk of dangerousness, the record indicates
that Mr. Ayers engaged in drug-trafficking activities and has
admitted to involvement with large-scale illicit drug
distribution. Government's Ex. 1 (filed under seal). In
addition, the offenses listed in the Indictment show that Mr.
Ayers is charged with crimes that occurred during the time
when he was on abscond status from the King County Superior
Court's sentence. Dkt. 1, Indictment in United States
District Court for the District of Alaska, No.
Court considered the defendant's proffer of evidence that
he has positive relationships with his girlfriend and her
family, he has a job in a restaurant that is owned by his
girlfriend's family, he and his girlfriend are expecting
a baby, and he has been complying with terms of supervision
for several weeks -- after release from the Washington State
Department of Corrections in September 2019. Yet Mr. Ayers
has failed to overcome the presumption of detention. The
defendant asserts that he has recently been a responsible
person, following conditions of supervision since release
from the Washington State Department of Corrections, but the
Court is not persuaded that a few weeks of compliance with
terms of supervision would be a reliable measure of his
ability to conform his behavior to the law while being
supervised in the community. For many years leading up to
September 2019, he demonstrated that he cannot comply with
terms of supervision and in fact absconded for about five
years between 2014 and 2019. During that time, he allegedly
was participating to distribute dangerous, illegal drugs such
as heroin and methamphetamine. Even with the support of his
friends and family, and a position working in the restaurant
owned by his girlfriend's family, the longitudinal
evidence shows that Mr. Ayers' track record of complying
with court-ordered supervision is dismal.
Government's motion for detention (Dkt. 4) is, for all of
the above reasons, GRANTED.
defendant shall be committed to the custody of the Attorney
General for confinement in a corrections facility separate,
to the extent practicable, from persons awaiting or serving
sentences or being held in custody pending appeal. The
defendant shall be afforded reasonable opportunity for
private consultation with counsel. The defendant shall on
order of a court of the United States or on request of an
attorney for the Government, be delivered to a United States
Marshal for transfer to ...