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United States v. Walton

United States District Court, E.D. Wisconsin

January 23, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LAURA L. WALTON, Defendant.

          ORDER ON DEFENDANT'S MOTION TO RECONSIDER DETENTION ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

         Laura L. Walton is charged with five counts of Hobbs Act robberies of businesses, four counts of brandishing a firearm, and one count of discharge of a firearm during a crime of violence. She has pled not guilty. Back on October 27, 2017, after a conducting a bond hearing, I found that Walton presented a danger to the community and ordered her detained pending trial. (Docket # 6.) Walton seeks reconsideration of that order pursuant to 18 U.S.C. § 3142(f)(2). (Docket # 19.)

         Under the Bail Reform Act, a defendant may be detained pending trial when the government is able to establish by clear and convincing evidence either that the person presents a serious risk of flight or a serious risk of danger to another person or the community. See United States v. Diaz, 777 F.2d 1236, 1237 (7th Cir. 1985). Section 3142(e) explicitly provides that the court shall order pre-trial detention if “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community . . . .” 18 U.S.C. § 1342(e).

         In determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of the community, the court must consider:

(1) The nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person's character, his physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.

18 U.S.C. § 3142(g). All of these factors must be balanced in making the ultimate determination of whether a defendant should be released on bond. See Diaz, 777 F.2d at 1238 (ultimate decision whether to detain “depends both on personal observation of the defendant and on a weighing of the daunting list of factors in section 3142(g)”).

         The Bail Reform Act also creates several “rebuttable presumptions” to be applied when determining whether there is any condition or combination of conditions that will reasonably assure the appearance of the defendant at trial and the safety of the community. As relevant here, one of those presumptions applies specifically to persons charged with crimes of violence. 18 U.S.C. § 3142(e). To rebut this presumption, a defendant must come forward with sufficient evidence that he will not flee or endanger the community. Dominguez, 783 F.2d at 706. This does not necessarily require a showing that the defendant is not guilty of the crimes charged. Id. at 707. Rather, the defendant could also show that “the specific nature of the crime charged, or that something about their individual circumstances, suggest that ‘what is true in general is not true in the particular case . . . .”' Id. “Any evidence favorable to a defendant that comes within a category listed in § 3142(g) can affect the operation of one or both of the presumptions, including evidence of their marital, family and employment status, ties to and role in the community, clean criminal record and other types of evidence encompassed in § 3142(g)(3).” Id. at 707.

         Even if a defendant is able to rebut one or both of the presumptions (flight risk or danger to the community), they do not drop out of the detention analysis. The Seventh Circuit explained:

[They do] not disappear when rebutted, like a “bursting bubble” presumption, nor do they actually shift the burden of persuasion to the defendant. They are “rebutted” when the defendant meets a “burden of production” by coming forward with some evidence that he will not flee or endanger the community if released. Once this burden of production is met, the presumption is “rebutted” . . . . Use of that word in this context is somewhat misleading because the rebutted presumption is not erased. Instead it remains in the ...

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