United States District Court, D. Utah
Parrish District Judge
MEMORANDUM DECISION REGARDING ORDER OF RELEASE WITH
J. Furse United States Magistrate Judge
August 15, 2018, Mr. Sexton was arrested and charged in two
state cases each alleging a first degree felony possession of
drugs with intent to distribute and one also alleging
eighteen third degree felonies for possession of firearms by
a restricted person. The state court released Mr. Sexton on
bail on these charges. On February 13, 2019, a federal grand
jury indicted Mr. Sexton for this same conduct, and the state
dismissed the two pending cases. A federal warrant issued,
and on February 27, 2019, Mr. Sexton was arrested following a
traffic stop. Mr. Sexton was charged with misdemeanor drug
counts in a new state case for allegedly possessing slightly
over an ounce of methamphetamine at the time of his arrest.
The state again set bail in that case.
March 18, 2019, Mr. Sexton appeared for the first time in
federal court on this indictment. The Government moved for a
detention hearing pursuant to 18 U.S.C. § 3142(f)(1)(C)
because the case against Mr. Sexton involves a drug offense
for which a maximum term of imprisonment is ten years or
more. The Court granted the motion and held the detention
hearing that day, considered the information in the Pretrial
Services Report, the information proffered during the
hearing, and counsel's arguments.
Government moved the Court to detain Mr. Sexton because he
poses both a risk of flight and danger to the community. The
Government primarily argues that Mr. Sexton fails to rebut
the presumption of detention because the investigation
produced recordings of the drug transactions, lab results
confirming the drugs, and a search of the home produced
numerous weapons including a semi-automatic rifle.
Sexton's counsel contends the Court can mitigate any risk
Mr. Sexton poses by imposing conditions. The state court
released Mr. Sexton on these charges in August 2018 without
incident, and over ten years have passed since he
successfully completed probation without incident on his last
conviction. Because Mr. Sexton's counsel was just
appointed at the hearing, he has not had the opportunity to
review the evidence but notes the government charged Mr.
Sexton with being a felon in possession of firearms and
ammunition but not possession of firearms in furtherance of a
drug crime, indicating the government lacks evidence to
suggest he used the guns as part of his alleged drug
Court found Mr. Sexton rebutted the presumption of detention.
While the information before the Court suggests Mr. Sexton
poses both a risk of nonappearance and a risk of danger to
the community, the Court can impose a combination of
conditions that can reasonably assure both appearance back at
court and the safety of the community.
Eighth Amendment prohibits the imposition of excessive bail.
U.S. Const. amend. VIII. 18 U.S.C. § 3142 governs a
defendant's release or detention pending trial. This
statute requires the court order the defendant released on
his own recognizance or on an unsecured bond pretrial,
“unless the judicial officer determines that such
release will not reasonably assure the appearance of the
person as required or will endanger the safety of any other
person or the community.” 18 U.S.C. § 3142(b). If
the court determines either personal recognizance or an
unsecured bond will not reasonably assure either end, 18
U.S.C. § 3142(c)(1)(B) requires the court impose the
least restrictive further condition that will
reasonably assure the appearance of the defendant and the
safety of the community.
THE REBUTTABLE PRESUMPTION
case, a rebuttable presumption arises that no condition of
release will reasonably assure the appearance of Mr. Sexton
at court and the safety of any other person and the community
because probable cause exists to believe he committed a drug
offense punishable by more than ten years in prison. 18
U.S.C. § 3142(e)(3)(A). The rebuttable presumption
requires the defendant to come forward with evidence to rebut
the presumption to obtain release. United States v.
Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991).
“Once the presumption is invoked, the burden of
production shifts to the defendant. However, the burden of
persuasion regarding risk-of-flight and danger to the
community always remains with the government.”
Id. The defendant does not bear a heavy burden to
overcome the rebuttable presumption but must produce some
evidence. Id. at 1355; see also United States v.
Jessup, 757 F.2d 378, 380-84 (1st Cir. 1985) (leading
case regarding the rebuttable presumption explaining the
difference between the burden of production and the burden of
persuasion). Absent rebuttal, the court will detain the
Court finds Mr. Sexton has rebutted this presumption. As to
the presumption of risk of nonappearance back at court, Mr.
Sexton was arrested for the underlying offenses in August
2018 and charged in state court. The state court released Mr.
Sexton pending trial. He faced a substantial maximum amount
of prison time for the charges at that time but did not flee
the jurisdiction and did not fail to appear in court. The
Court finds Mr. Sexton's actions while on release in
state court for these alleged crimes rebut the presumption
that he presents and uncontrollable risk of nonappearance.
the presumption of risk of harm to the community, Mr. Sexton
had a period of criminal activity in 2003 through 2004 that
ended with him serving one year in jail and thirty-six months
on probation. Mr. Sexton completed his jail time and
probation without incident and had no additional law
enforcement contacts until 2017. The Court finds Mr.
Sexton's prior compliance with court supervision and the
extended period of compliance with the law rebuts the
presumption that he presents an uncontrollable risk to the
safety of the community.
Court also notes the empirical evidence regarding the risk of
dangerousness and the presumption of detention as studied by
the Administrative Office of the U.S. Courts. Amaryllis
Austin, The Presumption for Detention Statute's
Relationship to Release Rates, Fed. Probation, Vol. 81
No. 2, Sept. 2017. Pretrial calculated Mr. Sexton's
Pretrial Risk Assessment score at category 4. Defendants with
that same risk level in non-presumption cases have a higher
level of any rearrest and slightly higher level of violent
rearrest than defendants in presumption cases. Id.
at 56 (Table 2) & 58-59. “[T]his study suggests the
presumption is overly broad.” Id. at 60.
the Court continues to consider the presumption in
determining whether to release or detain Mr. Sexton, as ...