IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

 v. : Case No. 2:10-mj-0011 

Terrance Vance, : 

 Defendant. :

 DETENTION ORDER

 The defendant was charged in a criminal complaint filed on

January 8, 2010 with conspiracy to possess less than 500 grams of

cocaine in violation of 21 U.S.C. §§841(a)(1) and 846. The Court

held a detention hearing in the case on January 11, 2010. For

the following reasons, the Court grants the United States’ motion

to detain the defendant without bond pending further proceedings.

The defendant waived a preliminary hearing on the complaint. 

Therefore, the Court is entitled to conclude that probable cause

supports the United States’ allegation that the defendant was

involved in a cocaine possession and distribution conspiracy with

at least one other individual, Tarico Smith, and that the

defendant has been purchasing quantities of cocaine from Smith

for at least two years. 

 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 and certain firearm offenses. 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....”

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 the rebuttable

presumption created by a charge under the Controlled

Substances Act 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,

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

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

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their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statute, 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.

Here, in addition to the presumption created by the probable

cause finding, the Court takes into account information in the

pretrial services report. That information shows that the

defendant has at least four prior felony drug convictions in

state court (one of them for trafficking), failed to appear in

court in at least one of those cases, and has had his probation

revoked at least once. He is currently unemployed and has an

unstable residence situation, apparently residing off an on with

a girlfriend or with his mother. He has a history of substance

abuse. All of these factors weigh strongly in favor of

detention.

The countervailing evidence consists of the following. 

Defendant was employed for approximately three years after his

most recent release from prison (although it does not appear that

he has attempted to obtain employment after losing that job in

2008). He has ties to this community and could reside with his

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mother on electronic monitoring. He is willing to look for a job

and at least one employer is apparently willing to consider

hiring him, although he does not have any guaranteed employment

waiting for him. 

In the Court’s view, this evidence is not enough to overcome

the presumption in favor of detention. Of particular concern is

the defendant’s four prior drug felony convictions, his lack of

gainful employment for the past two years, and his admission that

he has been involved in cocaine transactions for most of that

period. It would seem extremely likely that he would continue to

be involved in illegal narcotics activity, as he has been for

more than fifteen years, if released, and electronic monitoring

is not a sufficient deterrent to persuade the Court that release

is appropriate. For all these reasons, the Court grants the

United States’ request for detention, and detains the defendant

without bond pending further proceedings.

The defendant may seek review of this detention order under

18 U.S.C. §3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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