United States v. Butler

165 F.R.D. 68, 1996 U.S. Dist. LEXIS 8133, 1996 WL 84549
CourtDistrict Court, N.D. Ohio
DecidedFebruary 9, 1996
DocketNo. 4:95CR439
StatusPublished
Cited by14 cases

This text of 165 F.R.D. 68 (United States v. Butler) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Butler, 165 F.R.D. 68, 1996 U.S. Dist. LEXIS 8133, 1996 WL 84549 (N.D. Ohio 1996).

Opinion

DETENTION ORDER

HEMANN, United States Magistrate Judge.

This matter came before the magistrate judge on the government’s motion, pursuant to 18 U.S.C. § 3142(f), for. pretrial detention of Burnice J. Butler (“Butler”) and on Butler’s request for modification of conditions of release.1 Butler is charged with violating 18 U.S.C. §§ 922(g) and 26 U.S.C. §§ 5841 and 5861(d).

In accordance with 18 U.S.C. § 3142(f) the detention hearing was requested to determine whether any condition or combination of conditions of release would reasonably assure the appearance of Brown at further court proceedings and assure the safety of any other person or the community. The factors to be considered by this court are set forth in 18 U.S.C. § 3142(g): (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release.

The court orders detention.

I.

The following evidence was offered at the detention hearing through the testimony of David DeJoe, special agent for the Department of Alcohol, Tobacco and Firearms. Agent DeJoe testified that he is a member of the Mahoning County Drug Task Force and has been working with state law enforcement officers on investigations of drug trafficking in Mahoning County. One such investigation focused on the activities of Butler. During the week of July 10, 1995 state officers worked with a confidential informant to make controlled buys of crack cocaine from defendant. ' Lt. Morris of the Task Force subsequently obtained a warrant authorizing the search of 440 Tenney Avenue, Campbell, Ohio, the house where Butler allegedly resided. The warrant indicates that the confidential informant told Lt. Morris that Butler almost always carries a gun with him.

Butler was detained outside of the property as he was returning to it. Officers, including Agent DeJoe, then entered the house where they found, along with various drug paraphernalia, a rifle and a pipe bomb. The pipe bomb contained explosive material as well as pieces of copper which could have the effect of shrapnel upon explosion. Butler acknowledged orally that the rifle belonged [70]*70to him but did not acknowledge possession of the pipe bomb. The pipe bomb was negative for finger prints. Agent DeJoe testified that there appeared to be only one male living in the house. Butler told him that he was planning to move, and there were various items in boxes around the house.

At the time of the search of the house, Butler was on probation and under indictment. The crimes underlying both the probation and the indictment were felonies.

Counsel for Butler argued that Butler was not detained when stopped on the day of the search; the government proceeded by indicts ment rather than criminal complaint (allowing Butler to stay within the community for approximately six months after the search); and Butler, through his father-in-law, notified pretrial services that he was incarcerated upon receipt of the summons to appear for arraignment, thus indicating his willingness to appear for future proceedings. Butler has not been charged under the Controlled Substances Act despite the presence of drug paraphernalia in his residence and the evidence of his selling crack. Butler also proffered the information in the Pretrial Services Report that he has had a 15 year relationship with a woman in Youngstown and has children and grandchildren in the area. These factors, argue Butler, indicate that he is not a risk of flight.

II.

The court initially addresses the position of the government that under the circumstances of this case, the issue of bond is moot and Butler must be detained. Butler was in state court custody at the time of the issuance of the indictment. He appeared at his arraignment pursuant to issuance of a writ of habeas corpus ad prosequendum. The government argues that the issue of bond is moot because of the constraints posed by 18 Appendix II, Interstate Agreement on Detainers (“Agreement”), § 2 Article IV(e).2 The court disagrees. First, there is no reference in § 3142 to the Agreement. If Congress meant to make detention a moot issue when the Agreement is invoked, it could have said so. More relevant here, however, is the fact that defendant appeared in federal court pursuant to an ad prosequendum writ.

In United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), the Court had before it the question of whether a writ of habeas corpus ad prosequendum may be considered a “detainer” or a “request” within the meaning of the Agreement. In Mauro two defendants charged in federal court were removed from state prison pursuant to the issuance of ad prosequendum writs. Subsequently, because of overcrowded conditions, the defendants were returned to state prison prior to resolution of the federal charges. On motion of the defendants the trial court dismissed the indictments, finding that the United States had violated Article IV(e) by returning the individuals to state court without first completing the federal case. The Second Circuit Court of Appeals affirmed the district court, agreeing that the term “detainer” should be construed to include ad prosequendum writs.

The Supreme Court reversed, distinguishing between ad prosequendum writs and detainers. In summary, the Court determined that the Agreement was enacted to address the adverse effect of the lodging of a detain-er, i.e. the potentially lengthy duration of a detainer and consequent effect on prisoners and the programs designed for their benefit. Ad prosequendum writs, on the other hand, are issued by the federal court and are executed immediately. There being no inherent delay in the execution of a writ, there is no consequent effect on expeditious disposition of the outstanding charges. The Court held that “a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Agreement.” 436 U.S. at 361, 98 S.Ct. at 1848. Thus where, as' here, the United States has proceeded by writ and not by detainer, it is not bound by Article IV(e) and this court is not required to consider the [71]*71consequences of the Agreement in considering conditions of release.

The government seeks to detain Butler on both risk of flight and danger to the community. Defendant argues that under 18 U.S.C. § 3142(f)(1) and (2) the government cannot proceed here on the theory of danger to the community.

Section 3142(f) sets forth specific situations under which a judicial officer may hold a detention hearing.

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Bluebook (online)
165 F.R.D. 68, 1996 U.S. Dist. LEXIS 8133, 1996 WL 84549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-butler-ohnd-1996.