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United States v. Folker

United States District Court, D. Utah

January 15, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
WENDY RACHILLE FOLKER, Defendant.

          MEMORANDUM DECISION AND ORDER DETAINING DEFENDANT

          Ted Stewart, United States District Judge.

         This matter is before the Court on Defendant's Notice of Appeal and Objection to Detention Order. The Court conducted a hearing on January 14, 2020. For the reasons discussed below, the Court orders Defendant detained pending trial.

         I. BACKGROUND

         Defendant is charged in an Indictment with possession of methamphetamine with intent to distribute. Magistrate Judge Pead conducted a detention hearing on December 3, 2019. At the conclusion of that hearing, Judge Pead ordered Defendant detained. Defendant filed her Notice of Appeal and Objection to Detention Order on January 7, 2020.

         II. DISCUSSION

         The Court considers Defendant's request for a review of the Magistrate Judge's order of detention under 18 U.S.C. § 3145(b) and DUCrimR 57-16(a)(1). The Court conducts its own de novo review of the detention issue giving no deference to the Magistrate Judge's findings or conclusions.[1] In so doing, the Court may elect to start from scratch and take evidence-whether or not new evidence is proffered-and also may incorporate the record of the proceedings conducted by the Magistrate Judge, including any exhibits.[2]

         In making its determination, this Court, like the Magistrate Judge, is governed by the standards set forth in 18 U.S.C. § 3142. Under that statute, an accused is ordinarily entitled to pretrial release, with or without conditions, unless the Court “finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and community.”[3]

         In certain cases, however, the presumption shifts. Section 3142(e)(3)(A) dictates that, “[s]ubject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act.”[4]

         In this case, Defendant is charged with possession of methamphetamine with intent to distribute. This offense is punishable under 21 U.S.C. § 841(b)(1)(A), which carries a maximum term of more than 10 years' imprisonment. The Indictment constitutes probable cause that Defendant participated in the acts alleged.[5] Therefore, detention is presumed.

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. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.[6]

         As stated, the burden of persuasion remains with the government. The government must prove risk of flight by a preponderance of the evidence and it must prove dangerousness to any other person or to the community by clear and convincing evidence.[7] To determine whether there are conditions of release that will reasonably assure the appearance of Defendant and the safety of any other person and the community, this Court considers the following factors:

(1) The nature and circumstances of the offense charged, including whether the offense . . . involves . . . a controlled substance . . .;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, ...

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