United States v. Johnson, 10th Cir. (2005)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
FOR THE TENTH CIRCUIT
MAR 8 2005
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 05-1029
(D.C. No. 04-CR-514-N)
(D. Colo.)
v.
JEFFREY JOHNSON,
Defendant-Appellant.
ORDER AND JUDGMENT
Before MURPHY , OBRIEN , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant Jeffrey Johnson appeals the district courts order of detention

pending trial. We have jurisdiction under 28 U.S.C. 1291 and 18 U.S.C.
3145(c), and we affirm.
I.
On December 16, 2004, an Indictment was returned against defendant and
twenty-nine other individuals. All were charged with conspiracy to distribute and
possess with intent to distribute crack cocaine, in violation of 21 U.S.C. 846
and 841(a)(1), with one count of criminal forfeiture.
Defendant was arrested on
December 16 and he has been in custody since that date. The government moved
for detention at defendants first appearance.
A magistrate judge held a detention hearing on December 27, 2004, and
then ordered defendant released with certain conditions. The government sought
revocation of the magistrate judges release order. The district court held its own
detention hearings on January 4 and 5, 2005. The district court determined that
defendant was a flight risk and a danger to the community and that no
combination of conditions would assure his appearance at trial and the safety of
the community.
On January 26, 2005, a 137-count Superseding Indictment was returned.
Defendant is charged in five counts: conspiracy to distribute and possess with
intent to distribute cocaine and cocaine base in Counts 1 and 2; distribution and
possession with intent to distribute cocaine in Count 58; use of the telephone to
facilitate a felony in Count 60; and forfeiture in Count 137.
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II.
A judicial officer must detain a defendant prior to trial if he or she 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). The judicial officer must hold a hearing to
make this determination. Id. 3142(f). If there is probable cause
to believe that
a defendant committed an offense prescribed by the Controlled Substances Act

that carries a maximum term of imprisonment of over ten years, then a rebuttable
presumption arises that there are no conditions that will reasonably assure the
appearance of the person as required and the safety of any other person and the
community. Id. 3142(e). The burden of production on the defendant to
overcome the presumption is not a heavy one, but the defendant must produce
some evidence. United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir.
1991) (per curiam). Even if the presumption is overcome, the presumption
remains a factor in the district courts detention decision. Ultimately, the burden
of persuasion is always on the government. Id.
We review de novo mixed questions of law and fact concerning the
detention decision. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.
2003). We review the district courts findings of fact for clear error. Id.
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III.
Defendant argues that the district court erred by failing to make the
determinations required by the statute. We disagree.
The district court held a
detention hearing and then it made oral and written findings. In this case, the
district court found that the presumption applied because probable cause was
required to charge the defendant in the Indictment and because he was charged
with a crime under the Controlled Substances Act that carries a maximum term of
imprisonment over ten years. Aplt. App., Vol I, Tab H at 40. In its written order,
the district court noted that it had considered the presumption and all of the other
evidence in making its determination concerning detention. Id. The court then
acknowledged its duty to consider the statutory factors to determine whether there
were conditions of release that would reasonably assure the appearance of
defendant as required and the safety of any other person and the community.
Id.
The court recited the relevant factors from 18 U.S.C. 3142(g) and then it made
specific findings of fact and explained the reasons for detention as required by 18
U.S.C. 3142(i)(1). Aplt. App., Vol. I, Tab H at 40-44.
Defendant also challenges three of the district courts factual findings. He
argues that the district court erred in finding that: 1) he was a danger to the
community; 2) the evidence against him was great; and 3) he was a flight risk.
The district courts factual findings are supported by the evidence. The district
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court found that defendant was a danger to the community because of his
propensity to engage in acts of violence and because he deals in drugs. This
finding was based on evidence presented at the hearing that defendant was
involved in an incident where he jumped in another mans car, refused to let him
drive away, and slapped him in the face with a gun. Aplt. App., Vol. I, Tab H at
42-43, Aplt. App., Vol. IV at 84-85; Aplee. Supl. App., Ex. 1A. This finding was
also based on evidence presented at the first detention hearing that the
government had tapes of defendant and another member of the alleged conspiracy
discussing the sale of nine ounces of cocaine that was going to be manufactured
into crack cocaine. Aplt. App., Vol. II at 13-14. This second piece of evidence
also supports the district courts finding that [t]he evidence is more than
sufficient to connect the defendant to [the] conspiracy and to sustain a finding of
guilt beyond a reasonable doubt.
Id. , Vol. I, Tab H at 42-43.
Finally, on the question of whether defendant was a flight risk, i.e., whether
there was a condition or combination of conditions that could assure defendants
appearance, the district court found that defendant has a record of failing to
appear in just about every court proceeding that he has been involved in.
Id. at
41. This finding was based on evidence in defendants Pretrial Services Report
that in three previous cases he failed to appear four times resulting in significant
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delays in processing those charges. Aplee. Supl. App., PSR at 3-4. The district
courts factual findings are not clearly erroneous.
Lastly, defendant asserts that the district court erred in refusing to consider
his proffered evidence. At the hearing on January 5, defendant sought to
introduce evidence from Troy McMillon by way of proffer. The government
objected. Because of the governments objection and the fact that the witness was
within the jurisdiction of the court and available by subpoena, the district court
did not accept the proffered evidence. Aplt. App. Vol. IV at 52-54. Although the
statute provides that evidence can be presented by proffer,
see 18 U.S.C.
3142(f), it is within the courts discretion not to accept such evidence.
See
United States v. Gaviria , 828 F.2d 667, 669 (11th Cir. 1987).
Regardless, the district court stated that even if it were to consider the
proffer, the evidence itself was inadequate. The proffer was a letter by
Mr. McMillon to support defendants position that he would be able to obtain
employment if he were released pending trial. The letter states in relevant part,
[p]lease take into consideration that upon [defendants] release I will recommend
him for any open position to work for Advantage Rent A Car. Aplt. App.,
Vol. I, Tab G at 38. The district court found that the evidence was inadequate
because [t]he letter writer doesnt say hes associated with Advantage Rent-aCar, or that he is in a position to recommend or secure a job for defendant.
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Id.,
Tab H at 44. The district court did not err in refusing to accept this proffered
evidence.
The district court considered the evidence presented at the hearing in
conjunction with the relevant statutory factors and it made the required factual
findings to support its detention order. The judgment of the district court is
AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

ORDER AND JUDGMENT

Before MURPHY , OBRIEN , and TYMKOVICH , Circuit Judges.

See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant Jeffrey Johnson appeals the district courts order of detention

Defendant was arrested on

a defendant committed an offense prescribed by the Controlled Substances Act

The district court held a

Id. , Vol. I, Tab H at 42-43.

3142(f), it is within the courts discretion not to accept such evidence.

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