UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 20-cr-09-JD Opinion No. 2020 DNH 136 Hallett Merrick
O R D E R
Defendant Hallett Merrick moves (doc. no. 23) for review
and revocation of the magistrate judge’s order detaining him
without bail under 18 U.S.C. § 3145(b). The government opposes
pretrial release.
Standard of Review
Under 18 U.S.C. § 3145(b), the court conducts a de novo
review of the record to decide whether to maintain detention or
release a defendant. See United States v. Tortora, 922 F.2d
880, 883 n.4 (1st Cir. 1990). The court must state in writing
the reasons for the decision on review. Id. at 883.
The court shall order pretrial detention if it “finds that
no condition or combination of conditions will reasonably assure
the appearance of [the defendant] as required and the safety of
any other person and the community.” 18 U.S.C. § 3142(e). In
making that determination, the court considers the factors provided in § 3142(g). These factors are the nature and
circumstances of the charged offense, including whether it
involves a controlled substance or firearm, the weight of the
evidence against the defendant, the history and characteristics
of the defendant, and the nature and seriousness of the danger
to any person or the community that would be posed by the
defendant’s release. § 3142(g)(1)-(4). Ultimately, to support
detention, the government must prove by clear and convincing
evidence that the defendant poses a danger to the community or
prove by a preponderance of the evidence that the defendant is a
flight risk. United States v. Patriarca, 948 F.2d 789, 892-93
(1st Cir. 1991).
In certain circumstances, a presumption arises that no
condition or combination of conditions will reasonably assure
the appearance of a defendant and the safety of the community.
§ 3142(e). As relevant to this case, the presumption arises if
there is probable cause to believe the defendant committed “an
offense for which a maximum term of imprisonment of ten years or
more is prescribed in the Controlled Substances Act.”
§ 3142(e)(3)(A).
When a presumption under § 3142(e) applies, the defendant
need only produce “some evidence” to rebut it. United States v.
Dillon, 938 F.2d 1412, 1416 (1st Cir. 1991). “When a defendant
produces such evidence, however, the presumption does not
2 disappear. The burden of persuasion remains on the government
and the rebutted presumption retains evidentiary weight.” Id. at
1416.
Background
The court has reviewed the indictment, the transcript
of the bail hearing before the magistrate judge, the
pretrial services report prepared by the Probation Officer,
the magistrate judge’s detention order, and the parties’
briefs.1 In addition, the court held a detention review
hearing by video conference on July 30, 2020. Merrick,
counsel for Merrick, and counsel for the government
attended.
A. Charges & Initial Bail Hearing Before Magistrate Judge
Merrick was initially indicted on January 22, 2020. The
grand jury returned a superseding indictment on July 8, 2020.
In the superseding indictment, Merrick is charged with
possession with intent to distribute controlled substances, in
violation of 21 U.S.C. § 841(a) and (b)(1)(C) (Count 1),
1 The court has also considered the “Status Report” (doc. 31) filed by Merrick’s counsel, which retracts certain statements made during the initial bail hearing and in the motion for review of the detention order.
3 possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2), and
possession of a firearm having previously been convicted of
felony offense, in violation of 18 U.S.C. § 922(g)(1) (Count 3).
Merrick made his initial appearance on January 30, 2020, and
stipulated to detention. In May, Merrick requested a bail
hearing, which the magistrate judge held on May 22, 2020, by
video conference. The magistrate judge ordered Merrick to be
detained pending trial.
A United States Probation Officer prepared a pretrial
services report containing the following information for the
bail hearing. Merrick is thirty-three years old. At the time
of his arrest, he resided in White River Junction, Vermont.
Merrick’s criminal history begins at age eighteen, in 2005, when
he was charged with conspiracy to traffic opium and conspiracy
to sell or deliver Oxycontin in North Carolina. Through the
present, Merrick has been charged and convicted of various
burglary and drug-related offenses, which have resulted in
several terms of incarceration. Merrick has also repeatedly
violated terms of probation and failed to appear in court when
required.
The Report details Merrick’s struggles with substance
abuse, including use of alcohol, cocaine, heroin, and fentanyl.
The Report also notes Merrick’s mental health status, which
4 includes a diagnoses of post traumatic stress disorder, anxiety,
and, potentially, bipolar disorder.
Based on the history and information collected, the
Probation Officer determined that Merrick presents a risk of not
appearing for trial because of his criminal history, including
his record of failing to appear, defaulting, and being a
fugitive from justice. The Probation Officer also determined
that Merrick poses a risk of danger to the community because of
the nature of the offense, his criminal history, his substance
abuse history, his mental health history, and repeated
noncompliance with probation. The Report recommended that
Merrick be detained.
B. Initial Bail Hearing
At the initial bail hearing before the magistrate judge,
Merrick requested release to the Phoenix House to receive
substance abuse treatment. The government opposed Merrick’s
release.
The government proffered the facts underlying the case.
During an arrest, a search of Merrick uncovered six grams of
fentanyl “packaged for distribution,” $4,000 in cash, and a
firearm. Doc. 17 (Bail Hearing Tr.) at 11.2 The government
2 The arrest resulted from an outstanding warrant for a state offense. Doc. 17 at 12.
5 noted that Merrick has previously been convicted of a felony.3
The government theorized that Merrick was selling drugs but was
providing his customers smaller quantities than promised or
typical – i.e., “shorting” the customers. The government
suggested that Merrick was carrying a firearm for protection
during those sales.
Merrick responded that the weight of the evidence was weak
and did not support the government’s drug distribution case.
Merrick argued that the drugs found were for personal
consumption, pointing to the “fairly modest quantity” of drugs
found. Id. at 22. Merrick dismissed the government’s theory
that Merrick was “shorting” customers as speculative.
The government argued that Merrick has a lengthy and
serious criminal history including crimes such as burglaries.
The government noted that Merrick’s history also includes
failures to appear “nearly every time” Merrick has been charged,
as well as probation violations. Id. at 14. Merrick
acknowledged that his criminal history is serious but asserted
that he does not have an atypical criminal history for a person
with longstanding and unresolved substance abuse issues.
3 At the time of the initial bail hearing, Merrick had not yet been charged with possession of a firearm by a person convicted of a felony offense. That charge was added as Count 3 in the July 8, 2020, superseding indictment.
6 Merrick contended that substance abuse is the root cause of his
criminal history. Accordingly, Merrick asserted that release to
a substance abuse treatment program was appropriate.
The government argued that Merrick has no ties to New
Hampshire and a sporadic work history. The government stated
that the Phoenix House is not a secure facility, so there would
be no guarantee that Merrick would not simply walk away.
Merrick responded that his lack of ties to New Hampshire were
not critical to the analysis because he has strong ties to the
neighboring New England states of Massachusetts and Vermont.
Merrick contended that there was no evidence that he would
abscond if released to the substance abuse treatment program.
After the parties presented their arguments, the magistrate
judge reviewed each of the factors under § 3142(g). She noted,
without objection from Merrick, that the court would begin with
a rebuttable presumption that there are no conditions that could
be fashioned to address Merrick’s risk of flight and
dangerousness. See 18 U.S.C. § 3142(e)(3)(A) (“Subject to
rebuttal by the person, it shall be presumed that no condition
or combination of conditions will reasonably assure the
appearance of the person as required and the safety of the
community if the judicial officer finds that there is probable
cause to believe that the person committed,” among other
offenses, “an offense for which a maximum term of imprisonment
7 of ten years or more is prescribed in the Controlled Substances
Act”); doc. 15 (Order of Detention Pending Trial) at 3
(identifying the legal basis for and explaining the scope of the
presumption).
As to the weight of the evidence, the magistrate judge
concluded that the evidence as proffered by the government could
lead to a conclusion that Merrick was involved in the
distribution of controlled substances. As to Merrick’s history,
the magistrate judge acknowledged Merrick’s efforts to attempt
substance abuse treatment, but noted Merrick’s “lengthy history”
of defaults, failures to appear, violations of probation, and
“multiple fugitive from justice charges.” Doc. 17 at 51. The
magistrate judge concluded that Merrick “demonstrate[d] a
history of noncompliance with court orders and also a history of
failing to appear.” Id. The magistrate judge stated that she
was not persuaded that Merrick’s behavior would be different in
this case.
The magistrate judge acknowledged Merrick’s ties to New
England, but stated a concern about the “flux” in his residences
and difficulties in maintaining contact with Merrick, which was
exemplified by his most recent failure to appear resulting from
an inability to identify Merrick’s current address. Id. at 53.
The magistrate judge also noted that Merrick’s employment
history was sporadic and unverified and that Merrick’s mental
8 health issues raised concerns for the court as to risk of
flight. Lastly, as to whether Merrick presents a danger to the
community if released, the magistrate judge stated that the
facts of the case – Merrick’s possession of controlled
substances and his possession of a firearm – raised concerns
about the community’s safety.
After reviewing the § 3142(g) factors, the magistrate judge
found that the government met its burden to show by a
preponderance of the evidence that there is no condition or
combination of conditions that would reasonably assure Merrick’s
appearance. The magistrate judge also found that the government
proved by clear and convincing evidence that there was no
condition or combination of conditions for release that would
reasonably assure the safety of the community. Accordingly, the
magistrate judge ordered Merrick detained pending trial.
C. Detention Review Hearing
Merrick subsequently filed a motion for review of his
detention status, which is now before the court. Doc. 23. The
court held a detention review hearing on Merrick’s motion by
video conference on July 30, 2020.
At the hearing, Merrick requested that the court
temporarily detain Merrick until a bed was available at an
inpatient substance abuse treatment program. Merrick asserted
9 that a bed would become available as one was before during the
initial bail hearing before the magistrate judge. Merrick
reiterated his argument from the initial bail hearing that his
criminal record stems from severe substance abuse issues, that
he has substantial ties to New England, and that he is highly
motivated to address his substance abuse problem through
inpatient treatment.
In addition, Merrick argued that he was not a danger to the
community because he was arrested with only a small quantity of
controlled substances. He asserted that he has no prior
firearms, drug distribution, crime of violence, or sexual
assault convictions. Merrick maintained that the drugs found
during his arrest were for his personal use, and he noted that,
under the applicable standard, only reasonable assurances of the
defendant’s appearance and the safety of the community are
necessary to mandate bail.
In response, the government reiterated its theory that
Merrick was “shorting” customers. The government also pointed
to the large amount of cash found on Merrick and the firearm as
evidence supporting the controlled substance distribution
charge. As to Merrick’s history, the government also reiterated
that it was rife with defaults, probation violations, and
failures to appear, even when the ultimate disposition of a case
was dismissal. The government did not dispute that Merrick’s
10 substance abuse problems were a cause of his criminal record,
but it stated that his history of failures to appear and
inability to comply rendered a rehabilitative model unsuitable.
After the parties completed their arguments, the court took the
matter under advisement.
Discussion
Merrick asks the court to review his detention under
§ 3145(b) and release him to the custody of an inpatient drug
rehabilitation facility. The government contends that Merrick’s
detention is necessary because he poses a flight risk and a
danger to the community. It argues that all the § 3142(g)
factors weigh in favor of detention.
A. Nature and Circumstances of Charged Offense
Merrick is charged with three offenses: possession with
intent to distribute fentanyl (Count 1), possession of a firearm
in furtherance of that drug trafficking crime (Count 2), and
possession of a firearm having been convicted of a felony
offense (Count 3).4 Congress has unequivocally determined that
charges which involve drugs and firearms are serious and present
the highest risk of danger to the community. See United States
4 Count 3 was added in a superseding indictment after the initial detention hearing held by the magistrate judge.
11 v. Perez, 2020 WL 1991161, at *2 (D. Mass. Apr. 22, 2020) (“The
Bail Reform Act requires the court to expressly consider whether
the offense charged involved, among other things, a controlled
substance or a firearm. Here, the offenses charged involved
both guns and drugs. . . . Hence, the first factor supports
detention.”); United States v. Rodriguez-Romero, 18 F. Supp. 3d
116, 121 (D.P.R. 2014) (“In the case at bar, Defendant is
charged with possession of narcotics with the intent to
distribute, possession of a firearm in furtherance of a drug
trafficking crime, and possession of a firearm by a prohibited
person, charges which are all unquestionably quite serious and
violent in nature.”). Therefore, this first factor weighs in
favor of detention.
B. Weight of the Evidence
The weight of the evidence also favors detention. As to
Count 1, possession with intent to distribute a controlled
substance, the weight of the government’s evidence is
considerable. Merrick argues that the relatively small quantity
of drugs that were found on him undercuts the government’s
position that they were intended for distribution. The
government explains the small quantity of drugs by theorizing
that Merrick was shorting customers and carrying a firearm for
protection if the scheme was discovered.
12 Even if, as Merrick contends, the government’s explanation
for the quantity of drugs is speculative, there is substantial
evidence – all discovered on Merrick during or shortly after his
arrest – that Merrick was engaged in drug distribution. The
evidence includes the large quantity of individual packages in
which the drugs were found, the large amount of cash Merrick was
holding, and the firearm. This same evidence supports the
government’s charge that Merrick possessed a firearm in
furtherance of a drug trafficking crime (Count 2).
As to Count 3, possession of a firearm by a prohibited
person, the government has proffered that Merrick had a firearm
on him at the time he was arrested, and Merrick has not disputed
that he has been convicted of a felony offense. Merrick did not
offer a substantial argument against the weight of the evidence
as to possession of a firearm by a prohibited person at the
detention review hearing.
Merrick contends that the magistrate judge erred in her
analysis of the weight of the evidence by ruling that “such
weighing is unnecessary at the detention stage.” Doc. 23 at 5.
As a threshold matter, whether the magistrate judge erred as to
her application of the § 3142(g) factors is immaterial because
the court reviews the magistrate judge’s decision and applies
the § 3142(g) factors de novo.
13 Nevertheless, the magistrate judge’s analysis was correct,
and the court finds her discussion about the weight of the
evidence against Merrick persuasive. At the outset of her oral
ruling at the initial bail hearing, the magistrate judge stated
that she “want[ed] to stress for [Merrick] again that the
purpose of today’s proceedings is not for the Court to make an
assessment or conduct any kind of analysis about the likely
outcome of this – the pending charges. I’m not charged with
making any findings as they relate to your guilt or innocence.
I’m to presume that [the] presumption of innocence doesn’t go
away. What I’m charged with doing is assessing whether or not
. . . there is a condition or whether there are a combination of
conditions that will reasonably assure your appearance at future
court proceedings.” Doc. 17 at 43. Later, when specifically
addressing the weight of the evidence, the magistrate judge
acknowledged that Merrick might be able to convince a jury that
the government has not met its burden to prove his guilt. See
id. at 47-48. The magistrate judge explained that,
nevertheless, “for the purposes of today’s proceeding, I’m not
looking at the weight of the evidence in that fashion. I’m not
deciding whether or not the government’s going to meet its
burden. What I’m looking at is what is it about the weight of
the evidence as the government has shared it with me that could
14 raise concerns for the Court about risk of flight or
dangerousness.” Id. at 48.
As the magistrate judge correctly observed, when evaluating
the “weight of the evidence,” the court does not make a
determination of the defendant’s guilt or innocence, but rather
asks whether the evidence against the defendant, as proffered by
the parties, is so strong that it could lead the defendant to
flee. See 18 U.S.C. § 3142(j) (“Nothing in this section shall
be construed as modifying or limiting the presumption of
innocence.”); United States v. Torres-Rosario, 600 F. Supp. 2d
327, 334 (D.P.R. 2009) (“[N]umerous courts have recognized that
the seriousness of the charge and the weight of the evidence can
create a strong incentive for a defendant’s flight.”). Indeed,
the magistrate judge’s statements about the standard at the bail
hearing were consistent with Merrick’s position on the standard,
which he stated as follows: “[O]n this issue of the strength of
the case . . . this isn’t a trial. . . . I think the idea is
that the stronger the weight, the greater the risk of running;
maybe the stronger the weight, the greater the danger.” Doc. 17
at 40. Here, as the magistrate judge explained, the weight of
the evidence is strong and guides the court toward an inference
that Merrick’s risk of flight and danger to the community is
significant.
15 C. History and Characteristics of Defendant
Merrick’s criminal history includes a lengthy list of
defaults, failures to appear, and probation violations. In the
past, when Merrick has been on probation in lieu of detention,
he has committed additional crimes, violated the terms of his
probation, and failed to appear in court. Merrick’s assertions
about his substance abuse issues and need for drug
rehabilitation are credible, but the court cannot overlook his
history of failing to appear for court. Therefore, this factor
weighs in favor of detention.
D. Danger to the Community
As noted above, Merrick is charged with a serious drug
offense, with possessing a firearm in furtherance of that
offense, and with possessing a firearm as a prohibited person.
As the magistrate judge found, these circumstances support a
finding that Merrick’s behavior presents a danger to the
community. Doc. 17 at 53-54; see also United States v. Leon,
766 F.2d 77, 81 (2d Cir. 1985) (“[T]he harm to society caused by
narcotics trafficking is encompassed within Congress’ definition
of ‘danger.’”). That finding is bolstered by the presumption of
dangerousness under 18 U.S.C. § 3142(e). Dillon, 938 F.2d at
1416 (noting that a rebutted presumption of dangerousness under
§ 3142(e) “retains evidentiary weight”).
16 The § 3142(g) factors all weigh against Merrick. The
government has shown by a preponderance of the evidence that
Merrick presents a flight risk and by clear and convincing
evidence that he presents a danger to the community and that
there are no conditions of release from confinement that would
reasonably assure Merrick’s presence for trial and the
community’s safety.
Conclusion
For the foregoing reasons, Merrick’s motion for bail (doc.
no. 23) is denied.
SO ORDERED.
__________________________ Joseph A. DiClerico, Jr. United States District Judge
August 4, 2020
cc: Counsel of Record U.S. Probation U.S. Marshal