UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 08-cr-135-01-SM 

Normand Forand

O R D E R

The defendant appeared for a bail revocation hearing on July

11, 2012. The allegations in support of the claimed bail

violations are more fully stated in the Report of Bail Violation

filed on July 11, 2012. Based on the alleged violations, the

government requested detention. 

 A request to revoke bail is governed by 18 U.S.C. § 3148,

which provides in part:

The judicial officer shall enter an order of revocation and

detention if, after a hearing, the judicial officer--

(1) finds that there is–

(A) probable cause to believe that the person has

committed a Federal, State, or local crime while on

release; or

(B) clear and convincing evidence that the person has

violated any other condition of release; and

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(2) finds that--

(A) based on the factors set forth in section 3142(g)

of this title, there is no condition or combination of

conditions of release that will assure that the person

will not flee or pose a danger to the safety of any

other person or the community; or

(B) the person is unlikely to abide by any condition or

combination of conditions of release. 

18 U.S.C. § 3148 (b)(1)-(2). The government has the initial

burden to establish the violation under 18 U.S.C. § 3148 (b)(1). 

In order to satisfy the probable cause requirement of § 3148

(b)(1)(A), the facts available to the judicial officer must

"'warrant a man of reasonable caution in the belief' that the

defendant has committed a crime while on bail." United States v.

Aron, 904 F.2d 221, 224 (5th Cir. 1990)(citations omitted). 

If the government establishes probable cause to believe the

defendant committed a new "felony" offense on release, a

rebuttable presumption arises that no condition or combination of

conditions will assure that the person will not pose a danger to

the safety of any other person or the community. 18 U.S.C. §

3148(b)(2). Otherwise, the government typically has the burden

to prove by a preponderance of the evidence the requirements of

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section 3148 (b)(2)(A) or (B). Aron, 904 F.2d at 224; United 1

States v. Poinsett, 953 F. Supp. 37, 38 (N.D.N.Y. 1997).

In this case, the defendant stipulated to the bail violation

and counsel agreed to proffer on the issue of conditions of

release. For the reasons very thoroughly stated on the record,

the court finds the government has established by a preponderance

of the evidence that no combination of conditions can assure the

safety of the community and that the defendant is unlikely to

abide by any combination of conditions set by the court. In

short, this finding is justified based upon the defendant’s

repeated and escalating substance abuse (even after informed by

USPO Daniel Gildea that he was being violated for drug use and

while recently enrolled in an inpatient treatment program), his

continued denial that he has substance abuse issues, his prior

unmotivated participation in substance abuse counseling, and his

Because this is a bail violation on a supervised release 1

violation, arguably the defendant has the burden to prove by

clear and convincing evidence that he does not present a flight

risk or danger to the community and that he is likely to abide by

conditions of release. See Fed. R. Crim. P. 32.1(a)(6); 18

U.S.C. § 3143(a). For purposes of this hearing, however, the

court will assume that burden rests on the government in this

case. 

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recent discharge from inpatient treatment within days of his

admission after being warned by the court about the adverse

repercussions of not successfully completing the program. 

Therefore, for the reasons stated on the record and

summarized above, the conditions of release are revoked. 

Accordingly, it is ORDERED that the defendant be detained until

the final revocation hearing on August 7, 2012. The court

recommends entry into the Therapeutic Community ("TC") Program

should the defendant be detained in the Strafford County House of

Corrections. 

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.

/s/ Daniel J. Lynch

Daniel J. Lynch

United States Magistrate Judge

Date: July 12, 2012 

cc: Counsel of Record

 U.S. Marshal

 U.S. Probation

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