IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-mj-189 

 

Fred Leatherwood, :

 Magistrate Judge Kemp

Defendant. :

 

 

 ORDER

The Court held a detention hearing in this case on March 11,

2011. After taking testimony, hearing argument, and considering

the Pretrial Services report, the Court ordered the defendant

detained without bond pending further proceedings. This order

explains why.

Mr. Leatherwood was charged in a criminal complaint filed on

March 9, 2011, with conspiracy to possess with intent to

distribute over 28 grams of crack cocaine. That charge carries

with it both a mandatory minimum sentence of five years and a

presumption, described below, that if there is probable cause to

believe that a person committed such an offense, release on bond

is not appropriate.

Legal Standard Applicable. The United States' request

for detention is based in part 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

Case: 2:11-cr-00113-MHW Doc #: 8 Filed: 03/11/11 Page: 1 of 5 PAGEID #: <pageID>
 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

 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

-2-

Case: 2:11-cr-00113-MHW Doc #: 8 Filed: 03/11/11 Page: 2 of 5 PAGEID #: <pageID>
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

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.

The United States established probable cause (although the

Court has not yet conducted the formal preliminary hearing)

through the testimony of the case agent. He testified that the

defendant has been suspected of being a crack cocaine trafficker

for some time and has been under surveillance since January,

2011. During the last several months, he has been seen going

into and out of a residence located at 554A West Town Street in

Columbus, which agents believed was being used as a “stash house”

-3-

Case: 2:11-cr-00113-MHW Doc #: 8 Filed: 03/11/11 Page: 3 of 5 PAGEID #: <pageID>
for drugs. Additionally, a confidential informant has contacted

defendant on multiple occasions to arrange drug purchases, which

subsequently took place at the next-door residence of 552 West

Town Street. On March 9, 2011, agents executed search warrants

at those two locations and a third location, 556A West Town

Street. Defendant and two other individuals were arrested at one

or more of these locations, and agents also found a total of

eight firearms, many of them loaded, over 300 grams of crack

cocaine, and several thousand dollars in cash. There was also

evidence of drug trafficking such as scales and drugs already

packaged for sale. After being questioned by law enforcement

agents, defendant admitted to being involved in selling crack

cocaine and that another of the persons arrested, James Stewart,

worked for him in that trade.

The Pretrial Services report indicates that defendant is a

long-time resident of the Columbus area and has seven children. 

He has been separated from his wife for approximately the past

year. He reported some self-employment, some of which his wife

confirmed, but agents did not observe him working at a full-time

job while he was under surveillance. He was convicted of two

felonies in 2001 and was sentenced to jail time for those

offenses. 

In this case, although defendant is not yet facing weapons

charges, the testimony of the case agent would seem to support

such charges, and indicates, at the very least, a danger to the

community from the presence of weapons at or near drug

trafficking locations. On the drug charge as described in the

complaint, there is a five-year mandatory minimum sentence, but

that could increase to ten years based on the seizure of over 300

grams of crack cocaine from the “stash house” where defendant was

arrested. See 21 U.S.C. §841(b)(1)(A)(iii). The evidence

against defendant is strong, given his presence in the house at

-4-

Case: 2:11-cr-00113-MHW Doc #: 8 Filed: 03/11/11 Page: 4 of 5 PAGEID #: <pageID>
the time of arrest, the surveillance evidence, the evidence from

the informant, and defendant’s own admissions. The case does

involve both drugs and firearms, which are negative factors under

§3142(g). All of these factors, plus the apparently sporadic

nature of the defendant’s employment and the fact that he appears

to have been the manager of this operation, led the Court to

conclude that he had not successfully rebutted the presumption

against release, and that he should be detained pending trial. 

Consequently, that is what the Court ordered.

The defendant was advised of the right to seek review of

this order by a United States District Judge under 18 U.S.C.

§3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

-5-

Case: 2:11-cr-00113-MHW Doc #: 8 Filed: 03/11/11 Page: 5 of 5 PAGEID #: <pageID>