U.S. v. Lutz

207 F.Supp.2d 1247

UNITED STATES of America, Plaintiff, v. Russell Eugene LUTZ, Defendant.

No. 02-40031-01-SAC.

United States District Court, D. Kansas.

June 4, 2002.

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Marilyn M. Trubey, Office of Federal Public Defender, Topeka, KS, for Russell Eugene Lutz.

Randy Hendershot, Office of U.S. Atty., Topeka, KS, for U.S.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

This case comes before the court on the defendant's following pretrial motions: Motion to Review Detention Order (Dk.13); Motion to Suppress Statement (Dk.21); Motion to Suppress Evidence (Dk.22); Motion for Disclosure of Rule 404(b) Evidence (Dk.23); and Motion for Discovery (Dk.24). The government has filed a consolidated response addressing all of the defendant's motions, except for the motion to review the detention order. (Dk.25). On May 22, 2002, the court heard evidence on the motions to suppress as well as counsels' arguments on all motions. Having reviewed all matters submitted and researched the law relevant to these issues, the court is ready to rule.

PROCEDURAL BACKGROUND

The grand jury returned a single count indictment on February 28, 2002, charging the defendant with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g). Specifically, the indictment charges that the defendant is an unlawful user of and addicted to methamphetamine and has been convicted previously of two felony convictions and that he unlawfully possessed a 9 mm. caliber pistol on or about January 6, 2002. This indictment was sealed until after the defendant's arrest on February 27, 2002.

On April 4, 2002, the magistrate judge entered an order of temporary detention, as the defendant requested a continuance of the hearing on the government's motion for detention. On April 11, 2002, the magistrate judge conducted the hearing following which she entered an order of detention. The magistrate judge found the evidence to be clear and convincing "that there are no conditions which the court can establish which will reasonably assure the safety of others and the community from defendant's pattern of criminal activity involving both weapons and drugs." (Dk.15, Attach. ¶ 7).

MOTION TO REVIEW DETENTION ORDER (Dk.13).

Standard of Review

By statute, 18 U.S.C. § 3145(b), a defendant detained by a magistrate judge may seek review before the district court. This is a de novo review of the magistrate judge's order. United States v. Tortora, 922 F.2d 880, 883 n. 4 (1st Cir. 1990); United States v. Burks, 141 F.Supp.2d 1283, 1285 (D.Kan.2001); see United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993). The district court conducts its own de novo determination of the facts paying no deference to the magistrate judge's findings. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir.1990); United States v. Gaviria, 828 F.2d 667, 670 (11th Cir.1987). Ultimately, the district court must decide the propriety of detention also without giving any deference to the magistrate judge's conclusion. Id.

De novo review does not require a de novo evidentiary hearing. United States v. Burks, 141 F.Supp.2d at 1285; see United States v. Koenig, 912 F.2d at 1193. The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence. United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991). The district court also may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. United States v. Chagra, 850 F.Supp. 354, 357 (W.D.Pa.1994); see United States v. Messino, 842 F.Supp. 1107, 1109 (N.D.Ill.1994). The district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.; Bergner, 800 F.Supp. at 661. The parties agreed that the district court in ruling on the defendant's motion needs to review de novo only that evidence and arguments presented in the proceedings before the magistrate judge. The district court offered both sides the opportunity to present any additional information in support of their respective positions.

Controlling Law

Under the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq., the court must order an accused's pretrial release, with or without conditions, unless it "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." See 18 U.S.C. § 3142(b),(c), and (e). In making this determination, the court is to consider "the available information" on the following factors: the nature and circumstances of the offense, including whether the offense is a crime of violence or involves a narcotic drug; the weight of the evidence; the history and characteristics of the person; and the nature and seriousness of the danger to any person or the community posed by a release on conditions. 18 U.S.C. § 3142(g).

At all times, the burden of proof remains with the government to show there is no condition or combination of conditions that would reasonably assure the accused's presence in later proceedings and/or the safety of other persons and the community. United States v. King, 849 F.2d 485, 489 (11th Cir.1988); United States v. Orta, 760 F.2d 887, 891 (8th Cir.1985). The government must prove dangerousness to any other person or the community by clear and convincing evidence. United States v. King, 849 F.2d at 485 n. 3; 18 U.S.C. § 3142(f). Evidence is clear and convincing if it gives the factfinder "an abiding conviction that the truth of . . . [the] factual contentions are `highly probable.'" Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) (quoting C. McCormick, Law of Evidence § 320, p. 679 (1954)).

Analysis and Ruling

The court bases its ruling on the evidence and arguments presented to the magistrate judge and in the defendant's motion seeking review. The defendant limits his argument on review to the sufficiency of the evidence in support of the magistrate judge's finding that no conditions of release would insure the safety of the community.

Nature and Circumstances of the Offense

The defendant is charged with possession of a firearm in violation of 18 U.S.C. § 922(g). Officers found the pistol in the car that the defendant was driving. Officers also found drug paraphernalia in the car. During the traffic stop, the defendant admitted to officers that he had been in possession of methamphetamine which he had just swallowed. The magazine was in the firearm with seven rounds of ammunition in it. At the time of this arrest, he was on probation for a state felony conviction. His possession of a loaded firearm while in possession of methamphetamine weighs in favor of detention.

Weight of the Evidence

As it now stands on the record of the hearing, the weight of the evidence against the defendant is substantial. When the officers found the firearm, the defendant volunteered that, "My son called and wanted me to pick up the gun from his house." The defendant later emotionally told officers, "I can't believe that you are putting me away for 5 years. Do you know that because of the gun, I'm going away for 5 years. Don't you feel bad?" The defendant's admissions at the time of his arrest make this a strong case on the merits. This factor weighs in favor of detention.

History and Characteristics of the Defendant

The defendant is a resident of the area with sufficient family and community ties to favor pretrial release. The defendant's employment history shows he has held jobs in the construction industry, but his employment cannot be described as stable. His criminal history is rather extensive. He has multiple felony convictions in the last fourteen years with two of those convictions being felony drug convictions. For both of the felony drug convictions, officers either found firearms in the defendant's car or a deadly weapon in the defendant's pocket. In April of 2000, the defendant was convicted of attempted aggravated burglary that involved his display of a firearm in order to force a citizen/motorist to drive the defendant and his companions to a requested location. The defendant had his probation revoked in two cases, he committed two offenses while on parole, and he was arrested for the instant offense while on probation. The report of the pretrial services officer reflects the defendant has been arrested on eleven occasions, and eight of those times involved the possession of drugs or weapons. The defendant offers that he never failed to appear in any of the prior proceedings. Nonetheless, this factor strongly favors detention in that it demonstrates the defendant's repeated failure to refrain from criminal activity while subject to the terms of court-imposed supervision. In its judgment, the court finds the cumulative weight of these different factors to favor detention.

Nature and Seriousness of Danger to Any Other Person or the Community

The court believes the defendant's pattern of criminal conduct demonstrates a very real threat of continued involvement in drug trafficking and in the unlawful possession of firearms. Ongoing drug trafficking presents a serious danger to the community.

Summary

Based upon its de novo review of the record, the court concludes that there are no set of conditions of release which will protect the community from the danger of additional drug trafficking crimes and unlawful possession of firearms. This court's decision to detain the defendant pending trial was reached after a careful consideration of all of the facts and information offered by proffer or otherwise at the hearing before the magistrate judge. The court carefully applied those facts to the factors set forth in the ...