The opinion of the court was delivered by: Andrew P. Gordon United States District Judge
Before the Court is Defendant Owens Dunson's Motion for Review and Appeal of Detention Order (Doc. #28), filed on April 8, 2013. The Government filed an Opposition (Doc. #29) on April 16, 2013. Defendant filed a Reply (Doc. #30) on April 18, 2013.
Defendant Owens Dunson was charged in a February 12, 2013 Indictment (Doc. #1) with conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. The charges are based on a three-month investigation that culminated in the execution of a search warrant at Dunson's residence. During the search, the following items were recovered: a 9 mm semi-automatic pistol from Dunson's bedroom closet, 26.97 grams of cocaine base from Dunson's jacket, and approximately 18 pounds of marijuana, most of which was recovered from the trunk of Dunson's car. The marijuana was contained in a duffle bag which had a Spirit Airlines flight 918 claim ticket on it. In the master bedroom detectives recovered Spirit Airlines tickets dated June 18, 2012, for flight 918 for Dunson and co-defendant Nancy Pineda. Detectives also recovered evidence of distribution, including a scale with marijuana residue, scissors, a vacuum sealer, and clear plastic bags.
Dunson self-surrendered. On March 5, 2013, Dunson was arraigned and pleaded not guilty. On March 7, 2013, United States Magistrate Judge Robert A. McQuaid, Jr. conducted a detention hearing under the Bail Reform Act, 18 USC § 3142(f). At the conclusion of that hearing, Magistrate Judge McQuaid found:
There is a serious risk that the defendant will not appear.
There is a serious risk that the defendant will endanger the safety of another person or the community. The court finds by a clear preponderance of the evidence that the defendant is a risk of nonappearance based upon conflicting information regarding his residence, lack of property ties to this or any other community, conflicting information regarding his employment, lack of stable employment, lack of verified financial resources, lack of information regarding the use or abuse of controlled substances, a prior arrest for failure to appear, and a prior probation violation. The defendant is viewed as a risk of danger to the community based upon the nature of the instant alleged offense, lack of information regarding the use or abuse of controlled substances, and prior arrests and one conviction for crimes of violence and drug related offenses.
Detention Order Pending Trial (Doc. #23) at p. 1. The Magistrate Judge also found that: the testimony and information submitted at the detention hearing establishe[d] by a preponderance of the evidence that the defendant is detained as a risk of nonappearance and a danger to the community. There is no condition or combination of conditions that could be fashioned to reasonably assure the defendant's appearance at future court proceedings and the safety of the community.
Dunson's present Motion seeks review of and appeal from the Magistrate Judge's March 7, 2013 Order of detention pending trial (Doc. #23). Dunson primarily argues that the Magistrate Judge erred by improperly inferring that Dunson was being untruthful with the Pretrial Services Officer, by failing to give due weight to the fact that Dunson had self-surrendered, and by failing to recognize that Dunson has lived in Las Vegas for seven years and has family members who reside in Las Vegas who are willing to serve as third-party custodians. Dunson also argues that sufficient conditions can be imposed on release to assure his appearance. The Government responds that the factors set forth in 18 U.S.C. § 3142(d) weigh in favor of detention, that the Magistrate Judge properly weighed all of those factors in concluding that Dunson should be detained, and that Dunson represents a flight risk and a threat to public safety.
A. Motion to Reopen Detention Hearing
A defendant may move the district court judge to revoke or amend a pretrial detention Order issued by a magistrate judge. 18 U.S.C. § 3145(b). The district judge reviews the magistrate judge's detention Order de novo, without deference to the magistrate judge's factual
United States v. Koenig, 912 F.2d 1190, 1191-92 (9th Cir. 1990). The district judge reviews the evidence presented to the magistrate judge and makes "its own independent determination whether the magistrate [judge's] findings are correct, with no deference" to either the magistrate judge's factual findings or ultimate conclusion regarding the propriety of detention. Id. at 1192-93. The district judge may, but need not, hold an evidentiary hearing to make this determination. Id.
Title 18 U.S.C. § 3142(g) requires the Court to consider four factors in determining whether to detain or release a defendant: "(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the ...