United States of America, Plaintiff-appellee, v. Fritz Paul, Defendant-appellant, 86 F.3d 1156 (6th Cir. 1996)

Annotate this Case
U.S. Court of Appeals for the Sixth Circuit - 86 F.3d 1156 (6th Cir. 1996)

May 23, 1996


Before: BOGGS and MOORE, Circuit Judges; HILLMAN, District Judge.* 

ORDER

The defendant appeals a district court order detaining him pending trial on a charge of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1). The defendant has filed a brief in support of release and a reply brief. The government has filed a brief in opposition.

According to the provisions of 18 U.S.C. § 3142(e), a defendant shall be detained pending trial if, after a hearing, the judicial officer finds that no condition or set of conditions will assure the defendant's appearance and the safety of the community. The factors to be considered in determining whether to release a defendant pending trial are set forth in 18 U.S.C. § 3142(g) and include: the nature and circumstances of the offense charged; the weight of the evidence against the person; and the nature and seriousness of the danger posed by the defendant's release. Subject to rebuttal by the defendant, there is a presumption in favor of pretrial detention if the judicial officer finds there is probable cause to believe that the person committed an offense for which a potential maximum term of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. § 801 et seq. 18 U.S.C. § 3142(e); see also United States v. Strong, 775 F.2d 504, 506-07 (3rd Cir. 1985); S.Rep. No. 98-225, 98th Cong., 2d Sess. 12-13, reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3195-96. A finding of fact in support of pretrial detention shall not be disturbed on appeal unless clearly erroneous. United States v. Hazime, 762 F.2d 34 (6th Cir. 1985).

The defendant does not dispute that the statutory presumption in favor of pretrial detention is triggered in this case. He claims, however, that he has offered evidence sufficient to rebut the presumption. The mere presentation of some evidence contrary to the presumption in § 3142(e) does not automatically destroy it, and, "in making its ultimate determination, the court may still consider the finding by Congress that drug offenders pose a special risk of flight and dangerousness to society." United States v. Hare, 873 F.2d 796, 798-799 (5th Cir. 1989); see also United States v. Martir, 782 F.2d 1141, 1146 (2d Cir. 1986). Upon review of the briefs and the facts and arguments presented, we conclude that the district court did not err in denying pretrial release.

It therefore is ORDERED that the district court's order denying release is affirmed.

 *

The Honorable Douglas W. Hillman, United States District Judge for the Western District of Michigan, sitting by designation