United States District Court, D. Minnesota
John Docherty and Andrew Winter, Assistant United States Attorneys, Counsel for Plaintiff.
Bruce D. Nestor, De Leon & Nestor, LLC, Counsel for Defendant.
MEMORANDUM OF LAW AND ORDER
MICHAEL J. DAVIS, Chief District Judge.
The Defendant has been charged in the Superseding Indictment with Conspiracy to Provide Material Support to a Designated Terrorist Organization and Attempting to Provide Material Support to a Designated Terrorist Organization in violation of 18 U.S.C. § 2339B(a)(1). The offenses charged are serious felonies that carry a statutory maximum sentence of 15 years.
This matter is before the Court for a detention hearing.
A defendant may be detained pending trial if the Court finds 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 18 U.S.C. § 2339B, there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the Defendant and the safety of the community. 18 U.S.C. § 3142 (e)(3)(C) (18 U.S.C. § 2339B is a crime listed in 18 U.S.C. § 2332b(g)(5)).
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 ...