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United States v. Hardy

United States District Court, D. Arizona

November 13, 2018

United States of America, Plaintiff,
v.
Gordon Lynn Hardy, Defendant.

          ORDER

          Honorable John Z. Boyle United States Magistrate Judge.

         On October 25, 2018, an initial appearance was held for Defendant Gordon Hardy. (Doc. 12.) On November 8, 2018, the Court heard argument from the parties regarding detention. The Court has also considered the pretrial service reports, any memoranda, exhibits, and proffers of the parties. The Court finds Defendant's detention as a flight risk is required under the Bail Reform Act.

         I. Factual Background.

         Defendant, age 55, is an Arizona resident. He has prior felony convictions for Robbery (1989, 1989, 1995), Theft (1992), Felon in Possession of a Weapon (2000), Possession of Narcotic Drugs for Sale (2004), and Possession of Narcotic and Dangerous Drugs for Sale (2005). He was released from imprisonment in late 2013 or early 2014. He has an Arizona Medical Marijuana card and has a prescription for Oxycontin to assist with pain from a serious back injury. Defendant has no known international travel. Defendant has been unemployed for at least 13 years.

         On November 7, 2018, Defendant was screened for Crossroads placement and found unsuitable for placement due to a lack of candor with staff. Defendant denies he was dishonest with Crossroads staff. Defendant's family and friends were present in court on his behalf during the detention hearing.

         II. The Bail Reform Act.

         The government seeks the detention of Defendant on the ground that he is a serious flight risk and no release condition or combination of conditions exist that would reasonably assure his appearance at future court proceedings if released. After considering the memoranda, exhibits, proffers, argument, and all of the factors set forth in 18 U.S.C. §3142(g), the Court finds that the government has proven by a preponderance of the evidence that Defendant is a serious flight risk and no combination of conditions exist that would reasonably assure his appearance at future court proceedings.

         a. Standard of Review.

         The Bail Reform Act, 18 U.S.C. §§ 3141-3150, mandates the release of a person pending trial unless the court “[f]inds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting 18 U.S.C. § 3142(e)). This Court engages in a two-step inquiry before ordering a defendant either be released or detained pending trial. First, the Court must determine whether a defendant presents a “serious risk that [the defendant] will flee, ” if released from custody. 18 U.S.C. § 3142(f)(2)(A)). Second, if a defendant is likely to flee, the Court must determine whether some set of conditions would sufficiently vitiate that risk. 18 U.S.C. § 3142(g). The government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991).

         In determining whether release conditions exist that would reasonably assure a defendant's appearance, Section 3142(g) requires a district court to consider the following factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including--
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, ...

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