Unpublished Dispositionunited States of America, Plaintiff-appellee, v. Stanley Maurice Owens, Defendant-appellant, 932 F.2d 970 (6th Cir. 1991)

Before KRUPANSKY and BOGGS, Circuit Judges, and COHN, District Judge^* .

ORDER

The defendant appeals a district court order that he be detained pending trial. The defendant has filed a brief in support of his release and the government has filed a brief in opposition.

The defendant is charged with bank robbery in violation of 18 U.S.C. § 2113(d) and carrying and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). At his detention hearing the defendant conceded that the statutory presumption in 18 U.S.C. § 3142(e) in favor of detention was applicable. To rebut the presumption, the defendant offered evidence that he had been acquitted in state court of the charges he now faces in federal court.

Upon review and consideration, the court concludes that the defendant's acquittal rebutted the presumption in favor of detention. Therefore, the burden of persuasion should not have been shifted to the defendant. It remained incumbent on the prosecution to prove, by clear and convincing evidence, that the defendant was a danger to the community and that no condition or combination of conditions would reasonably assure the safety of any other person and the community. See 18 U.S.C. § 3142; United States v. Hazime, 762 F.2d 34 (6th Cir. 1985). Accordingly, the court concludes that this matter should be remanded to the district court.

It is therefore ORDERED that this matter is remanded to the district court for further proceedings in accordance with this order. Upon entry of an order granting or denying pretrial detention in the district court, the party adversely affected by such order may seek appellate review by filing a new notice of appeal.