United States v. Hubbard , 962 F. Supp. 2d 212 ( 2013 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 13-65 (RWR)
)
WILLIAM HUBBARD, )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION
A magistrate judge ordered that defendant William Hubbard be
detained pending trial. Hubbard moved for review of the
magistrate judge’s detention order. After a hearing, Hubbard’s
motion was denied. This Memorandum Opinion sets forth in further
detail the basis for that ruling.
BACKGROUND
A grand jury charged that in November 2010, Hubbard used a
firearm to rob a Garda Cash Logistics armored truck in
Washington, D.C. A grand jury returned a two-count indictment
against Hubbard, which charges Hubbard with one count of
interference with interstate commerce by robbery, in violation of
18 U.S.C. § 1951, and one count of using, carrying, and
possessing a firearm during a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A).
In February 2013, Magistrate Judge Alan Kay arraigned
Hubbard. At the arraignment, the government orally moved that
Hubbard be temporarily detained
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pursuant to: 18 U.S.C. § 3142(f)(1)(A), as he [has]
been charged with a crime of violence; 18 U.S.C.
§ 3142(f)(1)(D), as he has two prior convictions for
crimes of violence; and 18 U.S.C. § 3142(d)(1)(A), as
he is on supervised release in case 2008-CF1-198
(Attempted Second Degree Child Sex Abuse), and parole
in case 1997-FEL-5744 (Armed Robbery, Possession of a
Firearm During a Violent Offense, and Unlawful Use of
an Automobile).
Govt.’s Opp’n to Def.’s Mot. to Modify Release Conditions & Mem.
of P. & A. in Supp. Thereof (“Govt.’s Opp’n”) at 1. Magistrate
Judge Kay granted the government’s motion and set a detention
hearing. Magistrate Judge John Facciola presided over the
detention hearing and granted the government’s oral motion to
detain Hubbard pending trial and denied Hubbard’s oral motion to
be released pending trial. On March 12, 2013, Magistrate Judge
Facciola issued a detention memorandum explaining that he
detained Hubbard pending trial because he found that “there is
clear and convincing evidence that defendant’s release on any
condition or combination of conditions will not reasonably assure
the safety of the community and his detention is, therefore,
appropriate.” Detention Mem. entered Mar. 12, 2013 (“Detention
Mem.”) at 2.
Hubbard moved for a district court judge to review
Magistrate Judge Facciola’s detention memorandum and “permit his
release on high intensity supervision, [to a] halfway house, or
[on his own] personal recognizance.” Mot. to Modify Release
Conditions (“Def.’s Mot.”) at 1. The government opposed. On
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July 17, 2013, a hearing was held to consider Hubbard’s motion.
At the hearing, the findings of fact and conclusions of law in
the magistrate judge’s order were adopted and Hubbard’s motion
was denied because it was found that there is no condition or
combination of conditions that could reasonably assure the safety
of the community or Hubbard’s presence at trial.
DISCUSSION
“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.”
United States v. Salerno, 481 U.S. 739, 755 (1987). “The Bail
Reform Act of 1984 sets forth the limited circumstances in which
a defendant may be detained before trial despite the presumption
in favor of liberty.” United States v. Hanson, 613 F. Supp. 2d
85, 87-88 (D.D.C. 2009). Under the Act, a judicial officer
“‘shall order’” the detention of a defendant before trial if,
after a hearing, the judicial officer “finds by clear and
convincing evidence that ‘no condition or combination of
conditions will reasonably assure . . . the safety of any other
person and the community.’”1 Hanson, 613 F. Supp. 2d at 88(alteration in original) (quoting 18 U.S.C. § 3142(e)); see also
United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987). A
1
Clear and convincing evidence “requires the trier of fact,
in viewing each party’s pile of evidence, to reach a firm
conviction of the truth on the evidence about which he or she is
certain.” United States v. Montague, 40 F.3d 1251, 1255 (D.C.
Cir. 1994).
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judicial officer must also order pretrial detention if he finds
by a “preponderance of the evidence that no condition or
combination of conditions will reasonably assure the appearance
of the defendant in court as required.”2 Hanson, 613 F. Supp. 2d
at 88; see also 18 U.S.C. § 3142(e)(1); Simpkins, 826 F.2d at 96.
In making these determinations, a judicial officer must
consider:
(1) the nature and circumstances of the offense
charged, including whether the offense is a crime of
violence,[3] a violation of section 1591, a Federal
crime of terrorism, or involves a minor victim or a
controlled substance, firearm, explosive, or
destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person,
including--
(A) the person’s character, physical and mental
condition, family ties, employment, financial
resources, length of residence in the community,
community ties, past conduct, history relating to drug
or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or
arrest, the person was on probation, on parole, or on
other release pending trial, sentencing, appeal, or
2
Preponderance of the evidence is “evidence which as a
whole shows that the fact sought to be proved is more probable
than not.” Montague, 40 F.3d 1251 at 1255 (internal quotation
marks omitted).
3
A crime of violence means:
(A) an offense that has as an element of the offense
the use, attempted use, or threatened use of physical
force against the person or property of another; [or]
(B) any other offense that is a felony and that, by its
nature, involves a substantial risk that physical force
against the person or property of another may be used
in the course of committing the offense[.]
18 U.S.C. § 3156(a)(4).
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completion of sentence for an offense under Federal,
State, or local law; and
(4) the nature and seriousness of the danger to any
person or the community that would be posed by the
person’s release.
18 U.S.C. § 3142(g)(1)-(4).
“Ordinarily, the government bears the burden of
demonstrating the appropriateness of pretrial detention[.]”
United States v. Jones, Criminal Action No. 05-386 (ESH), 2013 WL
1611473, at *2 (D.D.C. Apr. 16, 2013) (citing 18 U.S.C.
§ 3142(f)(2)). However, where “the judicial officer finds that
there is probable cause to believe that the person committed
. . . an offense under section 924(c),” it is presumed that no
condition or combination of conditions would be sufficient to
reasonably assure the defendant’s appearance and the community’s
safety. 18 U.S.C. § 3142(e)(3)(B). “An indictment returned by a
duly constituted grand jury conclusively establishes the
existence of probable cause for the purpose of triggering the
rebuttable presumptions set forth in § 3142(e).” United States
v. English, 629 F.3d 311, 319 (2d Cir. 2011) (internal quotation
marks omitted); see also United States v. Parker, 517 F. Supp. 2d
375, 376 (D.D.C. 2007); United States v. Diaz, Criminal Action
No. 10-323-11 (ESH), 2011 WL 31131, at *1 (D.D.C. Jan. 4, 2011).
The defendant may rebut this presumption by offering “credible
evidence” to the contrary. United States v. Alatishe, 768 F.2d
364, 371 (D.C. Cir. 1985).
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Under 18 U.S.C. § 3145(b), “a person [who] is ordered
detained by a magistrate judge . . . may file, with the court
having original jurisdiction over the offense, a motion for
revocation or amendment of the order.” 18 U.S.C. § 3145(b).
A motion under 18 U.S.C. § 3145(b) for review of a
magistrate judge’s detention order requires the Court
promptly to examine de novo whether there are
conditions of release that will reasonably assure the
safety of any other person and the community. “The
Court is free to use in its analysis any evidence or
reasons relied on by the magistrate judge, but it may
also hear additional evidence and rely on its own
reasons.”
United States v. Sheffield, 799 F. Supp. 2d 18, 19-20 (D.D.C.
2011) (quoting Hanson, 613 F. Supp. 2d at 88); accord United
States v. Hitselberger, 909 F. Supp. 2d 4, 7 (D.D.C. 2012).
Here, a grand jury charged Hubbard with using, carrying, and
possessing a firearm during a crime of violence in violation of
18 U.S.C. § 924(c). That established probable cause to believe
that Hubbard violated § 924(c) and triggered a rebuttable
presumption that no condition or combination of conditions would
be sufficient to reasonably assure Hubbard’s appearance at trial
and the community’s safety. See 18 U.S.C. § 3142(e).
Moreover, the government has provided clear and convincing
evidence that Hubbard poses a danger to the community. First, a
grand jury charged Hubbard with a crime of violence: interference
with interstate commerce by robbery. See id. § 1951. Second,
the government’s evidence against Hubbard appears weighty,
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including testimony from one of Hubbard’s co-defendants that
Hubbard was one of the men who robbed the armored truck, and cell
site data placing Hubbard near the scene of the robbery around
the time that the armored truck was robbed. Detention Mem. at 4.
Third, Hubbard’s history and characteristics weigh in favor of
detaining Hubbard pretrial. Hubbard tested positive for drugs
twice shortly before he was arrested. Id. Additionally, Hubbard
has numerous previous convictions including for armed robbery,
possession of a firearm during a violent or dangerous offense,
and unauthorized use of an automobile in 1997 and attempted
second degree child sex abuse in 2008. At the time Hubbard
allegedly robbed the armored truck, he was on supervised release
for the 2008 conviction. Id.
Hubbard cites several factors that he argues favor his
release pending trial. He has substantial local family ties
including sick family members for whom he provides care and three
children, two of whom live with him. Detention Mem. at 3; see
also Def.’s Mot. ¶¶ 3-4. Hubbard also was employed before he was
arrested. Detention Mem. at 3; Def.’s Mot. ¶ 2. With the
exception of the two recent positive drug tests, he has been
compliant with the terms of his supervised release that he is
serving for his 2008 conviction. Def.’s Mot. ¶ 5. Hubbard
argues that he is presumed innocent and the charged events
occurred in November 2010 “long before Mr. Hubbard had
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established himself with employment and [as] a model citizen
under the law.” Id. ¶ 6.
Although Hubbard’s ties to the Washington, D.C. area may
weigh against his being a flight risk, Hubbard has failed to
provide persuasive evidence that, if released, he would not pose
a danger to the community. Accordingly, Hubbard has not rebutted
the statutory presumption that there is no condition or set of
conditions that will reasonably assure the safety of the
community.
CONCLUSION
Because there is probable cause to believe that Hubbard
violated 18 U.S.C. § 924(c), there is a presumption that Hubbard
should be detained pending trial. Hubbard failed to rebut that
presumption. Accordingly, his motion [17] to modify his release
conditions was denied.
SIGNED this 26th day of August, 2013.
/s/
RICHARD W. ROBERTS
Chief Judge