UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-247-01-SM

Kenneth Botelho

ORDER OF DETENTION PENDING TRIAL

In accordance with Section 3142(f) of the Bail Reform Act,

18 U.S.C. §§ 3141 et seq., a hearing was conducted on December

19, 2005, for the purpose of determining whether to detain

defendant, Kenneth Botelho, who has been indicted on two counts

of distribution of cocaine.

Under 18 U.S.C. § 3142(b), a court, in making a

determination regarding detention, must evaluate the risk of the

defendant’s flight, the risk to the safety of any other person,

and the risk to the safety of the community. In circumstances

when detention is not mandated by the court, the court is

nonetheless empowered to impose conditions on release. 18 U.S.C.

§ 3142(c). 

Pursuant to the provisions of 18 U.S.C. § 3142(g) a court,

in assessing the risks noted in 18 U.S.C. § 3142(b), shall

consider the following: (1) the nature and circumstances of the

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offense charged; (2) the weight of the evidence as to guilt; 

(3) the history and characteristics of the accused, including

family ties, past history, financial resources and employment;

and (4) the nature and seriousness of the danger to any person or

the community that would be posed by a release.

During the course of a hearing conducted pursuant to 18

U.S.C. § 3142, the government typically retains the burden of

persuading the court that “‘no condition or combination of

conditions will reasonably assure’ the defendant’s presence at

trial.” United States v. Perez-Franco, 839 F.2d 867, 870 (1st

Cir. 1988)(quoting United States v. Palmer-Contreras, 835 F.2d

15, 17-18 (1st Cir. 1987)); United States v. Patriarca, 948 F.2d

789, 793 (1st Cir. 1991). For its part, the government is

required to offer clear and convincing evidence of dangerousness;

and a preponderance of the evidence to prove risk of flight. See

Patriarca, 948 F.2d at 792-93.

In specific instances, delineated in 18 U.S.C. § 3142(e), a

presumption arises that no condition or combination of conditions

will reasonably assure the appearance of a defendant and the

safety of the community. Among the instances where a presumption

arises is the situation where, 

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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 (21 U.S.C. 801

et seq) . . . .

18 U.S.C. § 3142(e).

In the case at hand, the Indictment itself constitutes

probable cause to believe that the offenses charged have been

committed and that the defendant has committed them. Further,

the offenses charged against defendant are ones for which a

maximum term of imprisonment is ten years or more, as prescribed

in the Controlled Substances Act, 21 U.S.C. §§ 801 et seq. See

United States v. Dillon, 938 F.2d 1412, 1417 (1st Cir. 1991). 

Thus, Section 3142(e)’s rebuttable presumption that “no condition

or combination of conditions will reasonably assure [defendant’s]

appearance . . . and the safety of the community . . .” is

triggered in this case. See 18 U.S.C. § 3142(e), (f); 21 U.S.C.

§ 841(b)(1)(C); see also United States v. Vargas, 804 F.2d 157,

162-63 (1st Cir. 1986). 

In order to counter the statutory presumption triggered, the

defendant must present evidence which demonstrates that “what is

true in general is not true in [his] particular case.” United

States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985). Notably,

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the burden is one of production, not of persuasion. Id. at 380-

81. 

Here, I find that the defendant fails to rebut the

presumption with regard to risk of flight and danger to the

community. Specifically, this is a drug crime with two hand-tohand sales to an undercover agent. Not only is the weight of the

evidence substantial but defendant is a drug addict with three

prior drug convictions. 

The defendant here is precisely the type of individual

Congress envisioned when it established the statutory

presumption. The legislative history reveals that, in

establishing the statutory presumption that “no condition or

combination of conditions will reasonably assure . . . the safety

of the community . . . ,” 18 U.S.C. § 3142(e), Congress

specifically had in mind defendants alleged to be involved in

drug trafficking: “The Committee also emphasize[d] that the risk

that a defendant will continue to engage in drug trafficking

constitutes a danger to the ‘safety of any other person or the

community.’” S. Rep. No. 225, 98th Cong., 1st Sess. 13 (1983). 

Congress has determined that “flight to avoid prosecution is

particularly high among persons charged with major drug

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offenses.” S. Rep. No. 225, 98th Cong., 1st Sess. 20 (1983);

Jessup, 757 F.2d at 378. 

Aside from the presumption imposed in this case by 18 U.S.C.

§ 3142(e), I am satisfied from the representations offered during

the hearing that no condition or combination of conditions will

reasonably assure the appearance of the defendant. 

Upon full consideration of the arguments offered by the

government and defense, I am satisfied that the defendant has not

rebutted with any credible evidence the presumption that he poses

a serious risk of flight and a danger to the community. 

Accordingly, it is ORDERED that the defendant be detained

pending trial.

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

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States Marshal for the purpose of an appearance in connection

with a court proceeding.

SO ORDERED.

______________________________

James R. Muirhead

United States Magistrate Judge

Date: December 19, 2005

cc: Mark A. Irish, AUSA

 Kenneth Glidden, Esq.

 U.S. Marshal

 U.S. Probation

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