IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-cr-22 

 

Randy D. Dennison, : JUDGE GEORGE C. SMITH

Defendant. :

 

 

 ORDER

The defendant, Randy D. Dennison, accompanied by counsel,

appeared for a detention hearing on February 9, 2011. After

considering the information contained in the Pretrial Services

report and the arguments of counsel, the Court ordered the

defendant detained without bond pending further proceedings. 

This order explains why.

On February 3, 2011, the grand jury returned an indictment

charging Mr. Dennison with two counts of having a weapon under a

disability (he is a convicted felon) and one count of trafficking

in oxycodone, a controlled substance. The latter count carries

with it a presumption that the defendant should be detained

without bond, explained as follows.

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

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 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

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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.

No evidence was presented at the hearing. However, a

proffer was made indicating that there are several different

residences available to Mr. Dennison should he be released, and

that electronic monitoring could be established at any of those

residences. That information, and any favorable information in

the Pretrial Services report (and there is not much of that), was

not enough to persuade the Court that release was appropriate.

Aside from the drug trafficking charge and the accompanying

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presumption of detention, the Court was also concerned about the

fact that Mr. Dennison, who has several prior felony convictions,

apparently possessed multiple firearms when the law prohibits

that act. Additionally, his response to supervision in the past

has not been ideal, to say the least. His record reflects that

he had his probation revoked after a 1999 conviction arising out

of an OMVI charge; that after a 2002 conviction for receiving

stolen property, he was declared an absconder on two occasions;

that the same thing occurred following a 2004 conviction arising

out of an escape charge; that his probation was revoked following

a 2003 misdemeanor conviction; that he has been charged with the

crime of escape on three different occasions; and that on

multiple occasions he failed to appear in court. His record

also reflects multiple drug-related charges and some charges for

violent crimes such as domestic violence or assault. His

employment history is negligible (although, to be fair, he has

had health problems over the past several years which have

apparently prevented him from working). Given all of these

factors, the Court concluded that no conditions would either

adequately safeguard the community or assure the defendant’s

appearance in Court were he to be released. Consequently, he was

detained.

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

order by a United States District Judge pursuant to 18 U.S.C.

§3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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