UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 08-mj-89-01-JM

Tracey L. Lavery

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 September

22, 2008, for the purpose of determining whether to detain

defendant, Tracey L. Lavery, who has been charged in a criminal

complaint with possession with intent to distribute and

conspiracy to distribute 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

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

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. Facts necessary to find that no

combination will reasonably assure the safety of any person and

the community require satisfaction of the “clear and convincing”

standard. 18 U.S.C. § 3142(f)(2). 

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

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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, 

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, I have found 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). 

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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,

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 involving several

hand-to-hand sales to an undercover officer. She has confessed. 

This is her third drug crime. She has birthed crack babies and

thinks she is pregnant now - she tested dirty for cocaine upon

arrival. 

The defendant here is precisely the type of individual

Congress envisioned when it established the statutory

presumption. 

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

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

rebutted with any credible evidence the presumption that she

poses 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

States Marshal for the purpose of an appearance in connection

with a court proceeding.

SO ORDERED.

______________________________

James R. Muirhead

United States Magistrate Judge

Date: September 23, 2008

cc: Tracey Lavery

Tony Soltani

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U.S. Marshal

U.S. Probation

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