United States District Court, D. Minnesota
John Docherty and Andrew Winter, Assistant United States Attorneys, Counsel for Plaintiff.
Janeanne Murray, Counsel for Defendant.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on the Defendant's Motion to Review the Detention Order of Magistrate Judge Steven Rau dated February 19, 2015 [Doc. No. 11]. The Court has conducted a de novo review of the proceedings before Magistrate Judge Rau. The Court has also reviewed the parties' submissions on appeal and heard arguments of counsel.
At the time of the detention hearing, the Defendant had been charged by Complaint with Making False Statements in violation of 18 U.S.C. § 1001. He was thereafter indicted on February 19, 2015, and charged with Conspiracy to Provide Material Support to a Designated Terrorist Organization and Attempt to Provide Material Support to a Designated Foreign Terrorist Organization, in violation of 18 U.S.C. § 2339B(a)(1) and Section 2, and Making a False Statement in violation of 18 U.S.C. § 1001(a)(2).
A defendant may be detained pending trial if the Court finds that there is no "condition or combination of conditions... [that] will reasonably assure the appearance of such person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1). Because the Defendant has been charged by Indictment for violations of § 2339B, there is a presumption for detention. See 18 U.S.C. § 3142 (e)(3)(C) (providing that subject to rebuttal, it shall be presumed there is no condition or combination of conditions to assure the appearance of defendant or the safety of the community where defendant is charged with a crime under § 2332b(g)(5)(B)).
The existence of this presumption places upon the Defendant the "limited burden of production not a burden of persuasion to rebut that presumption by coming forward with evidence he does not pose a danger to the community or a risk of flight." United States v. Abad, 350 F.3d 793, 797 (8th Cir. 2003)(quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir. 2001)).
Detention is appropriate where the government proves by clear and convincing evidence that the Defendant is a danger to others or to the community, or when the government proves by a preponderance of the evidence that the Defendant is a risk of flight, and that in either case, there are no conditions or combination of conditions that will assure the safety of the community or the Defendant's appearance at future court proceedings.
In making this determination, the Court must take into account the following factors:
(1) The nature and circumstances of the offense charged, including the fact that the crime charged is an offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the ...