United States v. Smith

DETENTION OPINION & ORDER

Matthew A. Stinnett United States Magistrate Judge.

The Indictment alleges that Defendant Teresa Mae Smith (“Smith”) conspired to distribute 40 grams or more of fentanyl as well as unspecified quantity of methamphetamine all in violation of 21 U.S.C. §§ 846 and/or 841(a)(1). [DE 1]. The United States orally moved for pretrial detention pursuant to 18 U.S.C. § 3142(f)(1)(C). [DE 15]. The Court conducted a detention hearing on December 8, 2021 and afforded both sides all procedural rights outlined in the Bail Reform Act (“BRA”). [DE 26].^[1] The Government urged detention based on nonappearance and danger risks. Under Federal Rule of Appellate Procedure 9(a) and for the reasons discussed in this opinion, the Court finds, per the respective evidentiary standards, that detention is warranted on both nonappearance and danger grounds. The BRA requires Smith's pretrial detention in this case.

I. BRA FRAMEWORK

Given the charges, a detention presumption arises under the BRA as to both nonappearance and danger risk. 18 U.S.C. § 3142(e)(3)(A). The BRA and United States v. Stone, 608 F.3d 939,

945-46 (6th Cir. 2010), frame the resulting inquiry. The presumption imposes on the defendant a threshold “burden of production”; in response, “he must introduce at least some evidence” that he poses neither a flight nor a danger risk. Stone, 608 F.3d at 945; see also United States v. Dominguez, 783 F.2d 702, 707 (7th Cir. 1986) (imposing a responsive burden on the defendant to produce “some evidence that he will not flee or endanger the community if released”); United States v. Hernandez, No. 1:02-CR-006, 2002 WL 1377911, at *2 (E.D. Tenn. Feb. 27, 2002) (requiring the defendant to “produc[e] probative, credible evidence to rebut the presumption and support his contention that he will appear . . . and [that] he does not pose a danger”). The production burden “is not heavy, ” and the Government retains the ultimate burden of persuasion. Stone, 608 F.3d at 945. An unrebutted presumption requires detention. A rebutted presumption remains a pro-detention statutory factor. See Id. (“The presumption remains as a factor because it . . . reflects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial.”).

Where a defendant rebuts the presumption, the burden shifts back to the United States. Detention premised on nonappearance requires preponderant evidence of flight risk. See, e.g., United States v. Patriarca, 948 F.2d 789, 793 (1st Cir. 1991); United States v. Curry, No. 6:06-CR-82-DCR, 2006 WL 2037406, at *6 (E.D. Ky. Jul. 18, 2006). Danger-based detention, however, demands clear and convincing evidence that no combination of conditions will reasonably ensure community safety. 18 U.S.C. § 3142(f). The analyses are distinct. Conditions that sufficiently target nonappearance risk may not adequately address danger potential. See United States v. Mercedes, 254 F.3d 433, 436-37 (2nd Cir. 2001). Further, condition effectiveness inherently hinges on a defendant's predicted good faith compliance. See United States v. Tortora, 922 F.2d 880, 887 (1st Cir. 1990) (characterizing predicted compliance as critical release

component); United States v. Hir, 517 F.3d 1081, 1092 (9th Cir. 2008) (noting the “critical flaw” in a set of proposed release conditions: “In order to be effective, they depend on [the defendant's] good faith compliance.”); id. at 1093 n.13 (observing that, barring a “replica detention facilit[y], ” the success of any condition combination necessarily “hinge[s] on [the defendant's] good faith compliance”).

Evidence rules do not apply in the detention hearing context. 18 U.S.C. § 3142(f). The key is simply evidentiary reliability and accuracy. See, e.g., United States v. Webb, 149 F.3d 1185 (Table), No. 98-1291, 1998 WL 381686, at *1 (6th Cir. June 22, 1998). Given hearing informality, the Court properly considers a wide range of proof. The nature and quality of proof, though, impacts its probative value and weight in the detention calculus. The § 3142(g) factors ultimately drive the overarching analysis.

II. ANALYSIS

As an initial matter, the Court finds that Defendant has overcome the presumption as to both nonappearance and danger. However, the Court concludes that the Government has shown that it is more likely than not that the available conditions would not, under the circumstances, reasonably assure Smith's appearance at future hearings. The Court also finds that the Government has shown by clear and convincing evidence that no combination of conditions can reasonably assure community safety. Smith thus must remain in custody pending trial in this matter.

A. Risk of Nonappearance^[2]

At the outset, the Court finds that Defendant introduced sufficient credible proof to meet her minimal production burden and rebut the presumption as to nonappearance. Defendant

presented testimony from her youngest daughter, Ashley Strickland (‘Strickland”), at the detention hearing. [See DE 30]. Strickland testified that Smith would be welcome to reside at Smith's father's home in Frankfort, Kentucky with Smith's father and oldest daughter, Megan Smith (“Megan”). Strickland's testimony characterized the residential environment as relatively stable and confirmed that Smith's father would be willing, to the extent he is able, to assist with monitoring Smith's compliance. Strickland further observed that Smith is reliable when committed to sobriety and drug treatment. These facts are sufficient to overcome the presumption as to nonappearance risk. The burden thus rests on the United States to demonstrate that conditions are not adequate to assure Smith's future appearances.

1. Nature and Circumstances of the Offenses

The Court first assesses “the nature and circumstances of the offense charged, including whether the offense . . . involves . . . a controlled substance[.]” 18 U.S.C. § 3142(g)(1). The charged offenses here involve distribution of methamphetamine and an aggravated quantity (40 grams or more) of fentanyl, a particularly dangerous substance. The resulting detention presumption signals Congress's belief that defendants charged with such offenses present inherent flight and/or nonappearance risk. United States v. Downsbrough, No. 3:13-CR-61, 2013 WL 2447858, at *1 (E.D. Tenn. June 5, 2013) (citing United States v. Stone, 608 F.3d 939, 947 n. 6 (6th Cir. 2010) (noting that Congress has attached a presumption to those types of crimes, such as drug trafficking, which indicate a “strong probability” that the perpetrator will flee). Though rebutted, the presumption persists as a pro-detention consideration. See Stone, 608 F.3d at 945. Moreover, the drug charges here are linked with Defendant's personal history of severe substance use disorder struggles. For these reasons, this factor favors detention.

2. Weight of Flight Evidence and Defendant's History and Characteristics

The second factor the Court must consider is the weight of the evidence that Smith presents a risk of nonappearance. 18 U.S.C. § 3143(g)(2). See United States v. Sykes, No. 04-cr-80623, 453 F.Supp.3d 1011, 1015-16 (E.D. Mich. Apr. 13, 2020) (citing United States v. Stone, 608 F.3d 939, 948 (6th Cir. 2010)) (noting that, in this Circuit, the § 3142(g)(2) factor looks only to the weight of the evidence that the defendant is a flight/nonappearance risk or a danger); accord United States v. Sanders, 466 F.Supp.3d 779, 785 (E.D. Mich. 2020). The third BRA factor assesses Defendant's history and characteristics, namely, her substance use disorder history, criminal background, record concerning court appearances, and employment history. See 18 U.S.C. § 3142(g). Because these categories of information, together with the nature of the instant controlled substance allegations, supply the proof relevant to the applicable (g)(2) analysis, the Court considers these factors in conjunction. They collectively weigh in favor of finding that Defendant presents a substantial risk of nonappearance if released pretrial in this case.

The record confirms that Smith has a lengthy history of struggling with substance use disorder. Smith reported that, in addition to other substances at other intervals, she was a daily user of heroin/fentanyl^[3] and methamphetamine prior to her May 2021 arrest on state charges related to the instant federal case. [Pretrial Services Report (“PSR”) at 3]. It is particularly concerning that these substances mirror the instant methamphetamine and fentanyl charges, and the charged quantity of fentanyl further highlights the likely amount of the substance Smith was consuming with regularity immediately prior to her arrest. Per the PSR, Smith has used alcohol and other substances occasionally from the very early age of 12, and her drug use has ostensibly

spiked over the preceding 3-4 years as it progressed to daily heroin and methamphetamine use. [Id.]. Though Smith has engaged with drug treatment for various periods in the past, it does not appear that she has achieved long-term success with those programs, and the details and intensity of such programming is unknown. [Id. at 4].

Smith's treatment, reported substance use, and criminal history all are consistent with Strickland's testimony that Smith is capable of being stable for intervals when firmly committed to sobriety, but is unpredictable during periods dominated by heavy substance use. These facts introduce some concern about Smith's consistent participation in any ordered treatment and her potential turbulence if she disengages with it and falls off the rails. Smith's substance use disorder history weighs in favor of detention based on nonappearance risk. See,...