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United States v. Johnson

United States District Court, E.D. Wisconsin

April 26, 2018

UNITED STATES OF AMERICA Plaintiff,
v.
GERMAINE JOHNSON Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Defendant Germaine Johnson seeks district court review of the magistrate judge's detention order. On review of the record and the submissions, I continue that order.

         I. BACKGROUND

         On December 5, 2017, the government applied for and obtained a criminal complaint against defendant and 18 others alleging heroin trafficking and related offenses. (R. 1 at 1.) The government further sought warrants to search various properties, including defendant's residence. (R. 1 at 8.) The supporting affidavit averred that Clifton Morrison, the leader of the organization, provided heroin and cocaine to mid-level distributors, including defendant. (R. 1 at 10-11.) The affidavit further averred that the government had obtained a wiretap for Morrison's phone, intercepting approximately 99 calls and/or text messages between Morrison and defendant that were deemed criminal in nature. (R. 1 at 39.) The affidavit summarized a number of these communications, ostensibly involving defendant's receipt of heroin from Morrison and defendant's provision of drug proceeds to Morrison, and described agents' attempted surveillance of defendant, with defendant using counter-surveillance measures to evade agents. (R. 1 at 39-43.)

         Defendant appeared before a magistrate judge on December 6, 2017, and was temporarily detained, with a detention hearing set for December 13, 2017. (R. 18.) At the December 13 hearing, the government indicated that according to surveillance and wiretap intercepts defendant was one of Morrison's main distributors. The government noted that defendant continued to engage in drug trafficking activities even after he observed law enforcement conducting surveillance on him. The government further noted that during the execution of the search warrant agents recovered a firearm, ammunition, cash, scales, and jewelry from defendant's residence. The evidence was strong, the government claimed, and defendant faced a lengthy mandatory minimum sentence if convicted. Finally, the government noted that defendant was a felon, with a previous federal drug trafficking conviction. Based on these factors, the government sought detention as a danger to the community. (R. 88 at 1.) Defendant responded that he shared the residence with others, and the gun could have belonged to someone else. He further noted that Morrison is his cousin and that most of the calls related to family matters. Finally, he noted that he had a job as a teacher's aide at a school, which was still available if released, and that he also ran a home healthcare business. (R. 88 at 1-2.) The magistrate judge ordered detention, finding that the presumption of detention had not been overcome. He also expressed concern about the firearm and the possibility that defendant would go back to criminal activity if released. (R. 88 at 2.)

         On December 19, 2017, the government obtained an indictment charging defendant with conspiracy to distribute 100 grams of more of heroin, 21 U.S.C. § 841(b)(1)(B), and felon in possession of a firearm, 18 U.S.C. § 922(g)(1). At the December 20, 2017, arraignment, the magistrate judge continued the previous detention order. (R. 5 at 2.)

         On February 14, 2018, defendant filed a motion for release on bail. In support of that request, he noted that the drug charge on which he had been indicted carried a lower penalty range than the government previously asserted;[1] that the government had not alleged use of the firearm to facilitate the drug conspiracy; and that the firearm was found during the search of his residence, not on his person, and that the gun belonged to his girlfriend, a CCW permit holder, who swore out an affidavit to that effect. He further argued that the government would not be able to prove his constructive possession of the gun. (R. 143.)

         The magistrate judge held a hearing on the motion on March 2, 2018. The government sought continuation of the detention order, indicating that the indictment was presented to the grand jury very conservatively, and that the recorded calls showed defendant to be an important part of the conspiracy. The government further noted that the firearm was found in the master bedroom in plain view; even if defendant's girlfriend owned the gun, he knew it was there. Agents also found ammunition and magazines in the house, as well as money and scales. (R. 153 at 1.) Defendant responded that there was no allegation in the indictment that the gun was related to the alleged drug offenses, or that he carried a firearm, and that it is not an offense for a felon to be in the same premises as a firearm. Regarding the scales, he indicated that he has a heroin problem, and that it is not unusual for heroin users to have scales in their residences. Finally, he noted his stable residence and job, and that his prior record is dated. (R. 153 at 2.) The magistrate judge continued the detention order. While he was not concerned about flight, he noted that this was still a presumption case. He was also concerned about the presence of ammunition and magazines in the residence. (R. 153 at 2.)

         On March 14, 2018, defendant filed the instant motion for review of the detention order. The government has responded, and the matter is ready for decision.

         II. DISCUSSION

         A. Standard of Review

         Under 18 U.S.C. § 3145, the district court reviews a magistrate judge's bail decision de novo. United States v. Hendon, No. 08-CR-172, 2009 U.S. Dist. LEXIS 86341, at *5 (E.D. Wis. Sept. 10, 2009) (citing United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985); United States v. Jones, 804 F.Supp. 1081, 1086 (S.D. Ind. 1992)). The district court may hold a new hearing or review the record of the proceedings before the magistrate judge. See United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991).

         Neither side specifically requests a de novo hearing in the present case. Defendant's motion for review is virtually identical to the February 14 bond motion, including the same four exhibits. He presents no new evidence with the motion, nor does he indicate that he has additional evidence to present. Under these circumstances, a de novo hearing is unnecessary. I find the record made before the magistrate judge and the parties' submissions sufficient to rule.

         B. ...


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