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-0749 

 

Thouy Syvilaylack, : Magistrate Judge Kemp

Defendant. :

 

 DETENTION ORDER

The defendant, Thouy Syvilaylack, accompanied by counsel,

appeared for a detention hearing on September 29, 2011. After

the hearing, the Court decided that the defendant should be

detained pending further proceedings. This order explains why.

On September 26, 2011, defendant was charged in a criminal

complaint with possession with intent to distribute a controlled

substance (approximately seven ounces of cocaine) and possession

of a firearm in furtherance of a drug trafficking offense. He

waived a preliminary hearing. Based on that waiver (as well as

testimony presented at the detention hearing), the Court is

entitled to conclude that probable cause exists to believe he

committed these offenses. That gives rise to a presumption of

detention, 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

 assure the appearance of the person

 as required and the safety of the

Case: 2:11-mj-00749-TPK Doc #: 12 Filed: 10/14/11 Page: 1 of 5 PAGEID #: <pageID>
-2-

 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

the lucrative nature of drug trafficking, and the fact that

Case: 2:11-mj-00749-TPK Doc #: 12 Filed: 10/14/11 Page: 2 of 5 PAGEID #: <pageID>
-3-

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 called one witness at the hearing, DEA

agent Matthew Heufelder, who testified that the defendant has

been the subject of an ongoing investigation, having first come

to the DEA’s attention in 2006. In 2009, he was found in

possession of narcotics and firearms, and efforts were made to

resolve federal charges arising out of that incident, although

they have not yet borne fruit. More recently, on September 26,

2011, he was found in a hotel room and in possession of cocaine

and two loaded firearms, one of which was loaded with armorCase: 2:11-mj-00749-TPK Doc #: 12 Filed: 10/14/11 Page: 3 of 5 PAGEID #: <pageID>
-4-

piercing bullets.

According to the Pretrial Services report, the defendant has

lived in the Columbus area for a number of years, although he did

live in the State of Washington until 2000. He has been living

with a girlfriend since May and before that lived on and off with

a cousin. He has been fairly steadily employed. He has a

history of abusing various substances, including alcohol, and has

been treated for substance abuse in the past. His adult and

juvenile criminal record is extensive, and includes convictions

for assault, robbery, and possession of drugs. There are active

warrants for him from the State of Illinois and he has been the

subject of many bench warrants as well as probation revocation

proceedings. The Pretrial Services office has recommended that

he be detained.

Here, in addition to the presumption in favor of detention,

the Court notes that the evidence against the defendant is strong

and that defendant is facing significant prison time if

convicted. He has a history of both substance abuse and drugrelated convictions. His record of failures to appear, probation

violations, and the presence of active warrants is particularly

troubling, as is the fact that he has apparently continued to

possess distribution quantities of cocaine and dangerous, loaded

weapons while attempting to resolve potential federal charges

arising out of similar behavior in the past. The few positive

factors in the record - his work history and the availability of

place to reside if released - do not outweigh the negative

factors or overcome the presumption in favor of detention. 

Therefore, the Court ordered him detained pending further

proceedings.

The defendant was advised of his right to seek review of

this order by a United States District Judge pursuant to 18

U.S.C. §3145(b).

Case: 2:11-mj-00749-TPK Doc #: 12 Filed: 10/14/11 Page: 4 of 5 PAGEID #: <pageID>
-5-

/s/ Terence P. Kemp 

United States Magistrate Judge

Case: 2:11-mj-00749-TPK Doc #: 12 Filed: 10/14/11 Page: 5 of 5 PAGEID #: <pageID>