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United States v. Nosie

United States District Court, Ninth Circuit

August 30, 2013

United States of America, Plaintiff,
v.
McTeveson Elliott Nosie, Sr., Defendant.

ORDER OF DETENTION

LAWRENCE O. ANDERSON, Magistrate Judge.

In accordance with Title 18 U.S.C. § 3142 of the Bail Reform Act, a detention hearing was held in the above-captioned matter. The Court finds that the Government has established: (Check one or both, as applicable)

[X] by clear and convincing evidence, Defendant is a danger to the community and shall be detained pending trial.

[X] by a preponderance of the evidence, Defendant is a serious flight risk and shall be detained pending trial.

PART I - FINDINGS OF FACT

[ ] (1) There is probable cause to believe that Defendant has committed the following:

[ ] an offense for which a maximum term of imprisonment of ten years or more is prescribed in 21 U.S.C. §§ 801 et seq., 951 et seq., or 46 U.S.C. App. § 1901 et seq.

[ ] an offense under 18 U.S.C. §§ 924(c), 956(a), or 2332(b).

[ ] an offense listed in 18 U.S.C. § 2332b(g)(5)(B) (crimes of terrorism) for which a maximum term of imprisonment of ten years or more is prescribed.

[ ] an offense involving a minor victim prescribed in ________________.

[ ] (2) Defendant has not rebutted the presumption established by finding (1) that no condition or combination of conditions will reasonably assure Defendant's appearance as required at future court proceedings and the safety of the community.

Alternative Findings

[ ] (1) There is a serious risk that Defendant will flee and no condition or combination of conditions will reasonably assure Defendant's appearance as required at future court proceedings.

[ ] (2) No condition or combination of conditions will reasonably assure the safety of the community or others if Defendant were released from detention.

[ ] (3) There is a serious risk that the defendant will (obstruct or attempt to obstruct justice) (threaten, injure, or intimidate a prospective witness or juror).

[ ] (4) __________________________________________________________________________________ __________________________________________________________________________________________

PART II - WRITTEN STATEMENT OF REASONS FOR DETENTION

(Check one or both, as applicable)

[X] (1) The Court finds that credible testimony and information submitted at the hearing establish by clear and convincing evidence as to danger that:

1. The Government has a very strong case against Defendant for an apparently unprovoked and unjustified stabbing of the victim who was consuming alcohol (and likely drugs) with him at the time of the stabbing. 2. Defendant, age 19, admits to consuming alcohol regularly (three forty ounce beers while attending two to three parties a month) and marijuana since age 17, but he claims this is not an abuse of alcohol; 3. Defendant appears arrogant and defiant without remorse nearly four months after the stabbing; 4. Defendant's proffer through his attorney that he is now serious about addressing his significant substance abuse issues are not credible and reliable; 5. Due to his use and abuse of alcohol and illicit drugs and unstructured lifestyle, Defendant is out of control and is a danger to the community if released.

[X] (2) The Court finds by a preponderance of the evidence as to risk of flight that:

[ ] Defendant has no significant contacts in the District of Arizona;
[ ] Defendant has no resources in the United States from which he/she might make a bond reasonably calculated to assure his/her future appearance;
[X] Defendant has a prior criminal history in tribal court of alcohol use;
[ ] Defendant has a record of failure(s) to appear in court as ordered;
[ ] Defendant attempted to evade law enforcement contact by fleeing from law enforcement;
[ ] Defendant is facing a minimum mandatory of ________ incarceration and a maximum of __________ if convicted;

[ ] Defendant does not dispute the information contained in the Pretrial Services Report, and all supplements, if any, except:

[X] In addition:

1. The Court incorporates the above findings herein by this reference; 2. Defendant has never been employed and dropped out of high school; 3. Defendant fled the scene of the stabbing; 4. Defendant is facing a significant prison sentence due to the strength of the Government's case against him and, due to his substance abuse issues which render him unreliable and untrustworthy, he is likely to flee if released.

The Court incorporates by reference the findings of the Pretrial Services report and all supplements, if any, which were reviewed by the Court at or before the time of the hearing in this matter.

PART III - DIRECTIONS REGARDING DETENTION

IT IS ORDERED that Defendant is hereby committed to the custody of the Attorney General or his/her designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal. 18 U.S.C. § 3142(i)(2). Defendant shall be afforded a reasonable opportunity for private consultation with defense counsel. 18 U.S.C. § 3142 (i)(3). Upon order of a court of the United States or request of an attorney for the Government, the person in charge of the corrections facility shall deliver Defendant to the United States Marshal Service for the purpose of an appearance in connection with a court proceeding. 18 U.S.C. § 3142(i)(4).

PART IV - APPEALS AND THIRD PARTY RELEASE

IT IS FURTHER ORDERED that should a review of this detention order be filed pursuant to 18 U.S.C. § 3145, it is the responsibility of the movant's attorney to deliver a copy of the motion for review to U.S. Pretrial Services, at least, one day prior to the review hearing set before the assigned District Judge. Pursuant to Rule 59(a), Fed.R. Crim.P. (2010), a party seeking review shall have fourteen (14) days to file a motion for review after being served with a copy of this written order, after the oral order is stated on the record, or at some other time the assigned District Judge may set. Failure to timely file a motion for review in accordance with Rule 59(a) may waive the right to review. Rule 59(a), Fed.R.Crim.P.

IT IS FURTHER ORDERED that the issue of detention may be reopened at any time before trial upon a finding that information exists that was not known to the movant at the time of the detention hearing and such information has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of Defendant as required and the safety of any other person and the community. Title 18 U.S.C. § 3142(f).


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