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United States v. Harris

United States District Court, E.D. Wisconsin

January 5, 2018




         Defendant Derrick L. Harris (“Harris”) is charged in a three-count indictment with offenses relating to retaliating against a police informant. (Docket #1). The three charges are: (1) conspiracy to retaliate against an informant, in violation of 18 U.S.C. §§ 1513(b)(2) and (f); (2) obstruction of justice by attempting to kill an informant, in violation of 18 U.S.C. § 1513(a)(1)(B); and (3) discharge of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

         On October 12, 2017, Harris was ordered detained pending trial by Magistrate Judge Nancy Joseph. (Docket #21). He sought modification of the order on November 28, 2017, asking that he be granted pretrial release on supervision. (Docket #52). Magistrate Joseph declined to modify the detention order. (Docket #63). Harris now seeks review of that decision in this Court pursuant to 18 U.S.C. § 3145(b). (Docket #64). For the reasons stated below, the Court will reverse the bond decision of the magistrate judge.


         Under 18 U.S.C. § 3145(b), the district court reviews a magistrate judge's bail decision de novo. United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985). The district judge may “start from scratch” and hold a new hearing or review the proceedings before the magistrate. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991). In this case, the Court finds the parties' written submissions and the existing record are sufficient to conduct its review, so it declines Harris' request for a hearing.

         A defendant charged with an offense may be released on personal recognizance, released on conditions, temporarily detained to permit revocation of conditional release, or detained. 18 U.S.C. §§ 3142(a), (e). Detention is appropriate only where there are no conditions of pretrial release that will reasonably assure the appearance of the defendant and the safety of the community. Id. § 3142(e). In determining whether there are satisfactory release conditions, the court considers: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves narcotics; (2) the weight of the evidence against the person; (3) the history and characteristics of the person; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. Id. § 3142(g). To sustain its burden, the government must prove by clear and convincing evidence that no condition or set of conditions will ensure the safety of the community or the defendant's appearance. Id. § 3142(f)(2)(B); Portes, 786 F.2d at 764.

         If the court finds probable cause to believe that the defendant committed an offense under 18 U.S.C. § 924(c), a rebuttable presumption arises that no conditions will reasonably assure the appearance of the defendant or the safety of the community. Id. § 3142(e)(3)(B). An indictment charging such an offense is sufficient to trigger the presumption. United States v. Dominguez, 783 F.2d 702, 706 n.7 (7th Cir. 1986). The presumption shifts the burden of production to the defendant to come forward with some evidence that if released he will not flee or endanger the community. Portes, 786 F.2d at 764. The rebuttal burden is “not a heavy one to meet, ” but even if the presumption is rebutted, it remains in the case as an evidentiary finding militating against release, although the ultimate burden of persuasion rests with the government. Dominguez, 783 F.2d at 707.

         2. RELEVANT FACTS

         Harris' arguments implicate both his personal background and a careful review of what precisely occurred on August 8, 2017, the night of the offense conduct. The Court will summarize the pertinent facts below.

         Harris is a 26-year-old law enforcement officer. He is married and has two young children. He lacks a prior criminal record despite growing up in a dangerous neighborhood in Chicago. He has a bachelor's degree from Illinois State University. At the time of the offense conduct, he had two jobs, one as a correctional officer at a juvenile detention center and one at Home Depot. He reports that prior to the instant offense, he was in the “final stages” of being accepted for a position at the Chicago Police Department. He also holds a concealed-carry gun permit valid for both Illinois and Wisconsin.

         In the evening of August 8, 2017, Harris and his co-defendants Jose Lazcon (“Lazcon”), Michael Bonds (“Bonds”), and Rashawn Bumpus (“Bumpus”) were patrons at Cham Tap in Mount Pleasant, Wisconsin. Harris says he met Lazcon through playing internet basketball with him and that this night was the second time they had ever met in person. The bar captured most of the relevant events on surveillance cameras and audio equipment.

         The bar has two entryways: one on Durand Avenue near the bar's parking lot and one on Gates Street. Eventually, the four men left Cham Tap through the door on Durand Avenue. Just as the defendants left, AV1, a confidential informant in the case of United States v. Tirado, 16-CR-168-LA (E.D. Wis.), entered the tavern through the door near Gates Street and sat at the bar. Meanwhile, in the parking lot the four defendants said their goodbyes and Harris, Bonds, and Bumpus entered a white Chevrolet Malibu and left.

         Lazcon re-entered the bar through the Durand Avenue door and observed AV1 sitting at the bar. He immediately exited the bar and yelled to his co-defendants, who had already left the area. While in the parking lot, Lazcon placed a phone call and insisted, “Come back! Come back! That guy who did my bro is here. . . . Come back!” Shortly thereafter, Harris, Bonds, and Bumpus returned. They exited the Malibu and met with Lazcon, who was animated and appeared eager to confront the informant.

         The four men re-entered Cham Tap and immediately encircled AV1 from behind and verbally confronted him. Harris was seated at the bar, near AV1, when Lazcon announced to the bar patrons, “That's the snitch who told on my brother!” Harris was the first to approach AV1 and made aggressive advances against him. Several bar patrons ...

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