United States District Court, D. Nevada
before the court is defendant Dequane
Moore's (“defendant”) motion for
review of Magistrate Judge Ferenbach's detention order.
(ECF No. 17). The United States of America (the
“government”) did not file a response, and the
time to do so has passed. On August 26, 2019, defendant filed
a notice of non-opposition. (ECF No. 20).
is charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
(ECF No. 1). In 2014, defendant was convicted of attempted
possession of a controlled substance with intent to sell, a
felony offense. Id. On June 26, 2019, law
enforcement conducted a traffic stop and found defendant in
possession of a Taurus G2C, 9mm handgun with an altered and
obliterated serial number. (ECF Nos. 1, 16 at 11-12).
Defendant was indicted on July 16, 2019, and an arrest
warrant was issued. (ECF Nos. 1, 4).
25, 2019, defendant was arrested by a Las Vegas Metropolitan
Police Department officer and turned over to federal custody.
(ECF Nos. 12, 17 at 4). The next day, defendant appeared
before Magistrate Judge Ferenbach and was detained pending
trial. (ECF Nos. 15, 16). Defendant now seeks review of Judge
Ferenbach's detention order. (ECF No. 17).
court's review of a magistrate judge's detention
order is governed by Local Rule, Part IB, 3-5, which
provides, in pertinent part:
Any party seeking review of a release or detention order by a
district judge must, within 14 days from the date of service
of the release or detention order, file and serve a motion
for review. . . The district judge must conduct a de novo
review, and it may, but need not, hold an evidentiary hearing
to make this determination.
LR IB 3-5. The court's de novo review “is to be
conducted without deference to the magistrate's factual
findings.” United States v. Koenig, 912 F.2d
1190, 1192 (9th Cir. 1990). The court may hold an evidentiary
hearing to “explore and redetermine factual issues if
that proves necessary.” Id.
“the district court is not required to start over in
every case, and proceed as if the magistrate's decision
and findings did not exist.” Id. at 1193.
“The point is that the district court is to make its
own ‘de novo' determination of facts, whether
different from or an adoption of the findings of the
Criminal Rule 47-3 provides that “[t]he failure of an
opposing party to include points and authorities in response
to any motion constitutes a consent to granting the
motion.” LCR 47-3. In this case, the government has
failed to file a response to defendant's motion and
therefore consents to the granting of defendant's motion.
The court nevertheless conducts a de novo review of Judge
Ferenbach's determination “that no condition or
combination of conditions will reasonably assure the
appearance of the defendant as required.” (ECF No. 16
Ferenbach noted on the record that “[t]his [case] is a
really close one.” Id. at 15. The court
agrees. As an initial matter, the court notes that Judge
Ferenbach found “by a preponderance of the evidence
that no condition or combination of conditions will
reasonably assure the appearance of the defendant as
required”; he did not determine by clear and convincing
evidence that defendant poses a danger to the community.
Id.; see also United States v. Gebro, 948
F.2d 1118, 1121 (9th Cir. 1991) (“On a motion for
pretrial detention, the government bears the burden of
showing by a preponderance of the evidence that the defendant
poses a flight risk, and by clear and convincing evidence
that the defendant poses a danger to the community.”).
Considering this is a close case, the court-like Judge
Ferenbach-does not find clear and convincing evidence that
defendant is a danger to the community.
this court considers whether the government showed, by a
preponderance of the evidence, that defendant is a flight
risk. Importantly, “doubts regarding the propriety of
release should be resolved in the defendant's
favor.” Gebro, 948 F.2d at 1121 (citing
United States v. Motamedi, 767 F.2d 1403, 1405 (9th
Cir.1985)). Consequently, the court will, when possible,
release a defendant “subject to the least restrictive
further condition, or combination of conditions, that [the
court] determines will reasonably assure the appearance of
the person as required . . . .” 18 U.S.C. §
is, indeed, a close case. Defendant concedes his record
includes “a prior history of drugs and weapons,
failures to appear in some traffic cases, two probation
violations, and a current warrant from Georgia.” (ECF
No. 17 at 7). Regarding defendant's prior history of
drugs and guns, defense counsel indicated that none of
defendant's prior convictions constituted a crime of
violence. (ECF No. 16 at 12). Indeed, his first felony
offense was attempted possession ...