United States v. John Yopp , 991 F.2d 797 ( 1993 )

991 F.2d 797

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
John YOPP, Defendant-Appellant.

No. 93-1337.

United States Court of Appeals, Sixth Circuit.

April 9, 1993.

Before JONES and BATCHELDER, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ORDER

1

Defendant was indicted on a charge of conspiracy to possess with intent to distribute and conspiracy to distribute heroin and cocaine. He was ordered detained pending trial, and now appeals the detention order and seeks release. The government opposes defendant's release.

2

According to the provisions of 18 U.S.C. § 3142(e), a defendant shall be detained pending trial if, after a hearing, the judicial officer finds that no condition or set of conditions will assure the defendant's appearance and the safety of the community. The factors to be considered in determining whether to release a defendant pending trial are set forth in 18 U.S.C. § 3142(g) and include: the nature and circumstances of the offense charged; the weight of the evidence against the person; and the nature and seriousness of the danger posed by the defendant's release. Subject to rebuttal by the defendant, there is a presumption in favor of pretrial detention if the judicial officer finds there is probable cause to believe that the person committed an offense for which a potential maximum term of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801 et seq. 18 U.S.C. § 3142(e); see also United States v. Strong, 775 F.2d 504, 506-07 (3rd Cir.1985). The statutory presumption does not, however, shift the burden of proof. The government is required to demonstrate risk of flight by a preponderance of the evidence. See United States v. Martir, 782 F.2d 1141, 1146 (2d Cir.1986); United States v. Hazime, 763 F.2d 34, 37 (6th Cir.1985).

3

The factual findings of the district court will not be disturbed on appeal unless they are clearly erroneous. United States v. Hazime, 763 F.2d at 37. Questions of law and mixed questions of law and fact are reviewed de novo. Id. Upon review of the record, we conclude that the government has established a risk of flight by the preponderance of the evidence. In addition, under the circumstances of this case, the district court's denial of defendant's motion for a continuance of the detention hearing was not error. See 18 U.S.C. § 3142(f) ("Except for good cause, a continuance on motion of the person may not exceed five days ...").

4

It therefore is ORDERED that the February 25, 1993, detention order is affirmed.