IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America, :

Plaintiff, :

v. : Case No. 2:10-mj-465-TPK

Toray K. Wright, : 

 Defendant. :

ORDER

The above defendant appeared before the Court on August 3,

2010 for a detention hearing. The Court ordered him detained

without bond. This order explains that decision.

The defendant has been charged in a complaint with

conspiracy to possess with the intent to distribute in excess of

500 kilograms of marijuana. He waived his preliminary hearing,

thereby establishing probable cause with respect to the charge

against him. The government’s request for detention was

evaluated under the following standard.

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims. That statute states, in pertinent part,

that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

 believe that the person committed an

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 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

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monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, 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 in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

Neither party presented any evidence at the hearing. 

According to the pretrial services report, defendant is fairly

new to the Columbus area, having lived the majority of his life

in New York. He has family ties to New York, including his

mother, two siblings, and a son. He is unemployed and has not

had steady work for at least the past two years. He has spent

time in prison in Ohio, having been convicted of a drug offense

in Franklin County in 2005, a weapons offense in Franklin County

in 2007, and a drug offense in Clark County in 2008, and having

been sentenced to one-year jail terms on each of the drug

offenses. He also acquired his weapons conviction following a

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drug felony conviction, and the second drug conviction while on

community control for the weapons offense. If released, he could

stay with his girlfriend, who is expecting a child, under

electronic monitoring.

The presumption against release in this case is fairly

strong given the fact that defendant was apprehended by law

enforcement officers unloading the marijuana in question, and the

fact that he is facing a mandatory minimum five-year jail term,

which could be subject to enhancement based on his prior drug

trafficking convictions. Other factors such as ties to the

community, employment history, criminal history, and prior

adjustment to supervision all favor detention as well. In short,

defendant has offered little or nothing to rebut the presumption

that he should be detained pending trial, and the Court is

required, under these circumstances, to give effect to that

presumption. Thus, the defendant was detained pending trial.

The defendant is advised of his right to seek review of this

detention order pursuant to 18 U.S.C. §3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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