United States v. Gray

1

UNITED STATES OF AMERICA, Plaintiff, v. TERRANCE GRAY, Defendant.

Criminal No. 1:23-cr-00272-CNS-1

United States District Court, D. Colorado

June 29, 2023

ORDER

Charlotte N. Sweeney Judge

Before the Court is Defendant Terrance Gray's Motion for Revocation of the Detention Order (ECF No. 16). For the following reasons, Mr. Gray's Motion for Revocation of the Detention Order is DENIED.

I. BACKGROUND

On May 17, 2023, Mr. Gray was indicted on three counts for violations of:

• 18 U.S.C. § 924(c)(1)(A), possession of a weapon in furtherance of a drug trafficking offense;

• 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)), possession with intent to distribute cocaine; and

• 18 U.S.C. 922(g)(1), possession of a firearm by a prohibited person

(see ECF No. 1). An arrest warrant was issued that same day (ECF No. 2). Mr. Gray was arrested and had his initial appearance on May 30, 2023 (ECF No. 4; ECF No. 5). On June 2, 2023, the United States Magistrate Judge held a detention hearing; Mr. Gray contested detention (ECF No. 10 at 1). After conducting the detention hearing, the Magistrate Judge ordered Mr. Gray detained pending trial (see id. at 4). Mr. Gray filed the instant revocation motion on June 20, 2023 (ECF No. 16). As ordered by the Court, the government filed its Response on June 26, 2023 (ECF No. 20).

II. LEGAL STANDARD AND STANDARD OF REVIEW

A judicial officer may only order detention pending trial if they find-after a hearing, and pursuant to 18 U.S.C. § 3142(f)'s procedures-that no “condition or combinations of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). See also United States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). At detention hearings, the government bears the burden of proving a defendant's risk of flight by a “preponderance of the evidence” and the burden of proving dangerousness to persons or the community by “clear and convincing evidence.” See, e.g., Cisneros, 328 F.3d at 616. In making detention determinations, judicial officers must consider the statutory factors set forth in 18 U.S.C. § 3142(g). If-after conducting a detention hearing and considering § 3142(g)'s factors-a judicial officer orders a defendant's detention, their detention order must include written findings of fact and a statement of the “reasons for detention.” Cisneros, 328 F.3d at 617 (quoting 18 U.S.C. § 3142(i)(1)); Fed. R. App. P. 9(a)(1).

This standard may change based on the offenses charged. For instance, regarding § 924(c)(1)(A), a rebuttable presumption applies that no condition or combination of conditions will reasonably assure the defendant's appearance or safety of individuals in the community. See, e.g., United States v. Rudolph, 582 F.Supp.3d 804, 807 (D. Colo. 2022); 18 U.S.C. § 3142(e)(3)(B). Once § 3143(e)(3)'s presumption is “invoked,” the burden of production shifts to the defendant. Rudolph, 582 F.Supp.3d at 807. The defendant's production burden is not heavy, but “some evidence” must be produced. United States v. Stricklin, 932 F.2d 1353, 1355 (10th Cir. 1991).

However, the burden of persuasion regarding a defendant's risk of flight and danger to the community “always remains with the government.” Rudolph, 582 F.Supp.3d at 807 (citing Stricklin, 932 F.2d at 1354-55).

Where a person is ordered detained by a magistrate judge, they may file with the district court a revocation motion. See 18 U.S.C. § 3145(b). A district judge reviews a magistrate judge's detention order de novo. See, e.g., United States v. Renander, 431 F.Supp.3d 1240, 1241 (D. Colo. 2020) (citing Cisneros, 328 F.3d at 616 n.1). “[A] district court retains the discretion to decide whether to hold a hearing when conducting its de novo review of a magistrate judge's detention decision.” United States v. Oaks, 793 Fed.Appx. 744, 747 (10th Cir. 2019). A district judge reviewing a magistrate judge's detention order may consider the evidence presented during the original detention hearing and “may permit the parties to submit new evidence.” United States v. Mendoza-Haro, No. 12-cr-00242-WJM, 2013 WL 12196762, at *1 (D. Colo. Mar. 1, 2013) (citing Cisneros, 328 F.3d at 617).

III. ANALYSIS

Having considered Mr. Gray's revocation motion and attendant exhibits, the government's Response and attendant exhibits, the Magistrate Judge's detention order, evidence before the Magistrate Judge and evidence on which he based his detention determination, the entire case file, and relevant legal authority, the Court denies Mr. Gray's revocation motion.^[1]In arriving at this conclusion, the Court engages in de novo review of the Magistrate Judge's determination that assessment of § 3142(g)'s factors compelled detention (see ECF No. 13 at 3-4).

A. Nature and Circumstances of Offenses Charged

The first § 3142(g) factor contemplates the “nature and circumstances of the offense[s] charged.” § 3146(g)(1). Here, as the Magistrate Judge stated in his detention order and at the detention hearing, the offenses charged against Mr. Gray are extremely serious (ECF No. 13 at 3; ECF No. 16-1 at 18; see also ECF No. 1).^[2] They involve the possession of a firearm and possession with intent to distribute. See United States v. Hernandez-Saldivar, No. 4:22-cr-00266-RDP, 2022 WL 4474893, at *4 (N.D. Ala. Sept. 26, 2022) (“This factor weighs in favor of detention because the charged offense involves the possession of firearms.”). And, as the government observes, the potential sentences Mr. Gray may face for these charges, if convicted, are lengthy (see generally ECF No. 1; ECF No. 20 at 11-12). See also United States v. Ambrose, No. CR-23-00894-001-TUC-SHR(EJM), 2023 WL 4136608, at *3 (D. Ariz. June 22, 2023) (“The charge here is serious and the possible prison sentence creates an incentive to flee.”) Moreover, exhibits attached to the government's Response support its contention at the detention hearing that a firearm fell from Mr. Gray's waistband while officers pursued him (ECF No. 20 at 8, 10; ECF No. 20-3 at 2-3; ECF No. 20-5; ECF No. 16-1 at 7; ECF No. 20-4 at 2:15-2:18). Thus, this § 3146(g) factor favors detention. See United States v. Stumpf, No. 1:22-cr-00373 KWR, 2022 WL 16961385, at *2 (D.N.M. Nov. 16, 2022).

B. Weight of Evidence Against the Person

Mindful that the government bears the burden in detention proceedings, see Cisneros, 328 F.3d at 616, section 3146(g)'s “weight of the evidence” factor favors detention (ECF No. 20 at 12). Although Mr. Gray offers screenshots from video footage that he contends demonstrates he was not engaged in a drug trade, in addition to its proffer, the government offers and cites evidence in its Response demonstrating that Mr. Gray was in possession of a firearm and cocaine when arrested (see, e.g., ECF No. 16 at 4; see also ECF No. 20 at 8-9; ECF No. 20-1; ECF No. 20-3; ECF No. 20-4 at 2:15-2:18; ECF No. 20-5).^[3]See also United States v. Bentley, No. 23-10012-JWB, 2023 WL 2951606, at *3 (D. Kan. Apr. 14, 2023) (determining “weight of the evidence” factor favored detention where the government's proffer indicated weight of evidence against defendant was “strong”); United States v. Blackson, No. 23-CR-25 (BAH), 2023 WL 1778194, at *10 (D.D.C. Feb. 6, 2023), aff'd, No. 23-3020, 2023 WL 2663034 (D.C. Cir. Mar. 28, 2023). Thus, considering the weight of this evidence to the extent that it bears on the risk of Mr. Gray's flight and dangerousness to the community, this § 3146(g) factor favors detention. See United States v. Allen, No. 16-cr-00169-MSK-GPG, 2019 WL 2151304, at *3 (D. Colo. May 17, 2019) (noting that “weight of the evidence” factor is not a “pre-adjudication of the merits” of a case, but is considered to determine a defendant's risk of “non-appearance or harm to the community”); see also Rudolph, 582 F.Supp.3d at 812 (agreeing with magistrate judge that there was “significant probative evidence” against defendant and that given “the nature of [the] charges and the strength” of the evidence that the defendant had a “strong incentive” to flee); Cisneros, 328 F.3d at 618.

C. History and Characteristics of the Person

The third § 3146(g) factor considers a defendant's history and characteristics, including, for example, their “physical and mental condition, family ties, employment . . . past conduct, criminal history,” and whether at the time of arrest the defendant was on probation or parole. See § 3146(g)(3)(A)-(B). The parties, as they did before the Magistrate Judge, debate whether facts relevant to the Court's analysis of this § 3146(g) factor support detention (Compare ECF No. 16 at 10, with ECF No. 20 at 5-7). In its de novo review of the Magistrate Judge's detention order, the Court agrees with the Magistrate Judge that consideration of this factor favors detention (see ECF No. 13 at 3; ECF No. 16-1 at 17).

To be sure, the Court has considered-as the Magistrate Judge did-the letters of support submitted on Mr. Gray's behalf (see generally ECF No. 12; ECF No. 16-1 at 9). For instance, Cynthia Coleman, Mr. Gray's wife, represented that Mr. Gray worked for Coors Tech in Golden, Colorado, and that he was supportive of their children (ECF No. 12 at 1). But the Court must also consider, as the Magistrate Judge did, Mr. Gray's past conduct and criminal history (ECF No. 16-at 17; ECF No. 20 at 7). See also § 3146(g)(3)(A); United States v. Smith, No 5:23-MJ-1003, 2023 WL 1097269, at *4 (N.D. Ohio Jan. 30, 2023). And in doing so, Mr. Gray has a criminal history and prior felony conviction, and is certainly aware of the severe nature of the charges against him (see generally ECF No. 15). Accordingly, after reviewing the case file in light of § 3146(g)'s enumerated considerations, the Court concludes that this §...