United States District Court, District of South Carolina, Coumbia Division
This matter is before the court on Defendant Theodore Fulton’s Appeal of Magistrate Judge’s Decision to District Court (“Appeal”) [ECF No. 364] to deny his request for a reasonable bond. In his Appeal, Defendant requests review of the detention order entered by United States Magistrate Judge Paige J. Gossett on January 20, 2015. [ECF No. 364]. The court heard argument from Defendant and the United States of America (the “Government”) at a hearing on March 16, 2015. [ECF No. 920]. Upon de novo review of the record and upon consideration of the parties’ arguments, the court GRANTS Defendant’s appeal of the detention order.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 8, 2014, the grand jury indicted Defendant with conspiracy to possess with intent to distribute, and distribution of oxycodone, a Schedule II controlled substance, in violation of Title 21, United States Code, §§ 841(a)(1), 841(b)(1)(C), and 846 (Count 1); possession with intent to distribute and distribution of a quantity of oxycodone, a Schedule II controlled substance, in violation of Title 21, United States Code, §§ 841(a)(1) and 841(b)(1)(C), and Title 18, United States Code, § 2, and within 1000 feet of a school, in violation of Title 21, United States Code, §§ 860(a) and 841(a)(1); and possession with intent to distribute and distribution of a quantity of oxycodone, a Schedule II controlled substance, within 1000 feet of a school, in violation of Title 21, United States Code, §§ 841(a)(1), 841(b)(1)(C), and 860 (Count 4). [ECF No. 2]. On August 14, 2014, Defendant was arrested based on the allegations in the indictment and entered a plea of not guilty. [ECF Nos. 20, 33]. Defendant has been in custody since his arrest.
On November 20, 2014, the grand jury issued a superseding indictment [ECF No. 182] in which Defendant was charged with the same offenses, but other Defendants were added to the indictment. On December 2, 2014, Defendant entered a plea of not guilty to this Superseding Indictment. [ECF No. 232]. On January 5, 2015, Defendant entered a guilty plea to Count 1 of the Superseding Indictment pursuant to a Plea Agreement. [ECF Nos. 342, 344].
On January 20, 2015, Defendant filed a Motion for Detention Hearing [ECF No. 361] to determine whether he is entitled to a reasonable bond pending his sentencing in this case. That same day, Magistrate Judge Paige J. Gossett denied Defendant’s request for bond based on Defendant being subject to mandatory detention pursuant to the terms of 18 U.S.C. § 3143(a)(2). However, Magistrate Judge Gossett denied the request without prejudice to re-file the motion if Defendant could make a showing that an exception applies in this case.
The Bail Reform Act provides that a court should release a defendant on a personal recognizance, unsecured bond, or specified condition or combination of conditions, whichever is the least restrictive necessary, to assure the defendant’s appearance and the safety of others and the community. 18 U.S.C. §3142(a)(1-2), (b) and (c). However, a defendant must be detained pending trial if, after a hearing, the court 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 the community.” 18 U.S.C. § 3142(e)(1). It shall be presumed that no condition or combination of conditions exists to reasonably assure the appearance of the defendant or the safety of the community if there is probable cause to believe the defendant committed “an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act (21 U.S.C. [§] 801 et seq.)” or “an offense under section 924(c) of Title 18.” 18 U.S.C. § 3142(e)(3(A)-(B). As such, a rebuttable presumption of pretrial detention applies to Defendant.
“[T]he defendant bears the burden of producing probative, credible evidence to rebut the presumption and support his contention that he will appear in federal court when required and that he does not pose a danger to the safety of the community.” United States v. Tyson, No. 7:11-cr-105-3F, 2011 WL 4443253, at *1 (E.D. N.C. Sept. 23, 2011). Although the defendant has the burden of production to rebut the presumption, the government retains the burden of persuasion. Id.
At the hearing, Defendant’s counsel informed the court that Defendant, almost age 60, has no prior record; was arrested once but the matter was dismissed as an erroneous arrest; retired from the South Carolina Department of Mental Health after twenty-eight (28) years of employment as a mental health specialist working with children, and was re-employed for five (5) years; has always resided in South Carolina; is married and has children; has no passport; has cooperated with the Government and assisted with the arrest of at least three (3) other individuals connected to the conspiracy; and has pled guilty to conspiracy to possess with intent to distribute, and distribution of oxycodone (Count 1). Based on the information presented, the court finds that Defendant has shown sufficient evidence to rebut the presumption for detention.
Since Defendant has successfully rebutted the presumption for detention, the question becomes whether the Government has proved that no condition or combination of conditions would reasonably assure the appearance of Defendant as required or the safety of any other person or the community. The court then evaluates the record pursuant to the factors set forth in 18 U.S.C. § 3142(g): 1) the nature and circumstances of the offense charged, 2) the weight of the evidence against the defendant, 3) the history and characteristics of the defendant, and 4) the nature and seriousness of the danger to the community or an individual if the defendant is released on bond. 18 U.S.C. § 3142(g). “For pretrial detention to be imposed on a defendant, the lack of reasonable assurance of either the defendant’s appearance or the safety of others or the community, is sufficient; both are not required.” United States v. Stewart, 19 F. App’x 46, 48 (4th Cir. 2001) (per curiam) (unpublished). When considering a defendant’s flight risk, the government must show by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the defendant’s presence at trial. Id. When considering the danger to the community or an individual, the government must show by clear and convincing evidence that no condition or combination of conditions will assure the safety of others. Id.
In its Response in Opposition to Appeal of Magistrate Judge Decision to District Court (“Response”) [ECF No. 402], the Government argued that Defendant’s request for bond should be denied because Defendant was “the ringleader of a substantial oxycodone trafficking ring” and is subject to the Mandatory Detention Act, Title 18 United States Code, § 3142(e)(A) and thus faces a sentence of at least ten (10) years. At the hearing, the Government did not dispute the information presented by Defendant’s counsel and essentially relied only on its Response, with the exception that it is concerned that Defendant gave substantial amounts of money to various family members and other persons and has unaccounted for assets which may lead him to flee and thereby pose a risk to the community and possessed a gun (although the Government was unaware of whether it was legally registered to Defendant or Defendant has a concealed weapons permit). The court finds the Government has not carried its burden of persuasion in this case. Instead, Defendant has shown that although he was charged with and pled guilty to a serious offense that is subject to the Mandatory Detention Act, he has no prior criminal record, maintained steady employment throughout his life, remained in South Carolina and has a stable residence, has cooperated and the Government noted that Defendant is expected to testify as a key witness for the Government in any trial of co-defendants. Additionally, Defendant’s burden of production does not require that he produce clear and convincing evidence that he is not dangerous or likely to flee, he is only required to produce some evidence supporting those factors. United States v.Guy, No. 7:12-cr-134-F2, 2013 WL 121807, at *3 (E.D. N.C. Jan. 9, 2013). As a result, Defendant has presented satisfactory information that he is suitable for a reasonable bond in this case. To the contrary, the Government has neither shown by a preponderance of the evidence that no condition or combination of conditions will reasonably assure Defendant’s presence at trial, or by clear and convincing evidence that no condition or combination of conditions will assure the safety of others.
Therefore, Defendant shall be released under the following conditions:
1) Payment of $50, 000.00 secured bond;
2) Home Detention with GPS. Defendant shall not be released until the pretrial services office verifies Defendant’s successful placement and monitoring by GPS. The GPS device will be provided by the pretrial services office; however, Defendant shall pay for the monitoring of such device. Defendant shall only leave home with the permission of the pretrial services office for medical and legal appointments, church, meetings with the U.S. Attorney’s office and its agents or the DEA, and as ...