UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, Case No. 4:08-CR-20482-1

Plaintiff,

United States District Judge

vs.

Michael Hluchaniuk

SAMUEL SHARON UPCHURCH, United States Magistrate Judge 

Defendant.

 /

ORDER OF DETENTION PENDING TRIAL

In accordance with the Bail Reform Act, 18 U.S.C. § 3142(f), a detention

hearing has been held, I conclude that the following facts require the detention of

the defendant pending trial in this case.

Part I-Findings of Fact

(1) The defendant is charged with an offense described in 18 U.S.C. §

3142(f)(1) that is an offense for which a maximum term of imprisonment of

ten years or more is prescribed in the Controlled Substances Act (21 U.S.C.

§ 801, et seq.)

(2) A finding of probable cause that defendant committed an offense described

in (1) establishes a rebuttable presumption that no condition or combination

of conditions will reasonably assure the appearance of defendant as required

and the safety of the community. I further find that the defendant has not
rebutted this presumption.

Part II – Written Statement of Reasons for Detention

I find that the credible testimony and information submitted at the hearing

establishes by clear and convincing evidence and a preponderance of the evidence

that: detention is appropriate in this matter. After conducting a hearing on the

government’s motion for detention, it is ordered, pursuant to 18 U.S.C. § 3142(e),

that defendant be detained pending trial in this case. This decision was based on

the factors contained in § 3142(g). Defendant is charged in an indictment with

three offenses (relating to the distribution, possession with the intent to distribute

and conspiracy to distribute five grams or more of cocaine base) that have

maximum possible sentences of ten years or more. Inherent in the fact that

defendant is charged with these offenses under Title 21 in an indictment is the fact

that probable cause exists that defendant committed these offenses. Probable cause

that such offenses have been committed creates a rebuttable presumption in favor

of detention. 18 U.S.C. § 3142(e). 

Defendant is 23 years old, has resided in Genesee County his entire life and

has family, including a mother and two children, who reside in the area. However, 

he is unemployed (and has never had employment except for eight months of his

adult life), claims to own no assets and has no verifiable source of income. 

Defendant has a prior drug felony conviction in 2003 and a misdemeanor retail
fraud conviction in 2005. An unrelated drug felony charge is currently pending in

Genesee County, apparently arising out of an incident in May of 2008. 

The offense charged in Count 1 of the present indictment was committed

while the defendant was on supervision for his retail fraud conviction. Defendant

has admitted using marijuana beginning in 1995 and continuing up to just before

his arrest on the present offense, which would indicate that he was using illegal

drugs while on supervision for the two offenses he was convicted of as well as

while he was on bond for the currently charged Genesee County offense. The

Pretrial Services Report indicates that defendant has used an alias and a false

Social Security number in the past and the government, during the hearing,

proffered that when defendant was originally arrested by state authorities for the

offenses that are charged in the indictment he gave the authorities a false name. 

Defendant has given information relating to his residence that is inconsistent

with other information available to the court. Defendant claimed to have lived

with his mother at a residence on Stockdale in Flint for the last ten years. 

Defendant’s girlfriend advised Pretrial Services that defendant lived with her at a

residence on Clairmont in Flint and defendant’s mother told Pretrial Services that

defendant lived with her at a residence on Maybury for the past three months and

on Mt. Elliot for the seven years before that. Defendant had informed Genesee

County authorities, with respect to his release on bond in those charges, that he
resided on Mt. Elliot. These various statements relating to defendant’s residence

cannot be reconciled and therefore either the defendant, his girlfriend or his mother

are not being truthful about these circumstances. 

Defendant’s mother was suggested as a third party custodian at the hearing

and was called to the witness stand for testimony. Defendant’s mother testified

that defendant lived with her, on Maybury and Mt. Elliot, and that he helped her

with various things around the house and that she gave him money from time-totime as he needed it. On cross-examination she denied knowing about his prior

convictions or the other charges in Genesee County. She also denied knowing

about any illegal drug use on his part. Having claimed that defendant lived with

her but that she did not know of his prior convictions or drug use, defendant’s

mother has demonstrated that she is either not being truthful or that she was so

detached from the events of his life that she either did not care about him or closed

her eyes to his illegal conduct. Either circumstance makes her an unsuitable third

party custodian. 

Based on the above information, the undersigned concludes that the

presumption in favor of detention has not been overcome. While defendant has

family ties to this community he has no employment, no assets or any source of

income in this area. Even if the presumption had been overcome, the possibility of

a ten year mandatory minimum sentence gives defendant an incentive to flee the
jurisdiction and his past conduct on supervision as well as his use of an alias and

false Social Security number indicates a sufficient risk of flight that satisfies the

government’s burden of proof, by a preponderance of the evidence, that defendant

is a flight risk. Defendant’s prior convictions, his current federal charges and his

current Genesee County charges indicates a pattern of conduct that establishes, by

clear and convincing evidence, that he is a danger to the community. 

Part III – Directions Regarding Detention

The defendant is committed to the custody of the Attorney General or his

designated representative for confinement in a corrections facility separate, to the

extent practicable, from persons awaiting or serving sentences or being held in

custody pending appeal. The defendant shall be afforded a reasonable opportunity

for private consultation with defense counsel. On order of a Court of the United

States or on request of an attorney for the Government, the person in charge of the

corrections facility shall deliver the defendant to the United States Marshal for the

purpose of an appearance in connection with a court proceeding.

Date: December 24, 2008 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge
CERTIFICATE OF SERVICE

I hereby certify that on December 24, 2008, I electronically filed the

foregoing paper with the Clerk of the Court using the ECF system which will send

electronic notification to the following: Nancy Abraham, AUSA and David A.

Koelzer, Esq.,Federal Defenders Office and I hereby certify that I have mailed by

United States Postal Service/hand-delivered the paper to the following non-ECF

participants: Pretrial Services Agency and the United States Marshal’s Service.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov