The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Jess Vernon Brasier, is a defendant in the above two captioned cases, both of which involve marijuana cultivation/trafficking. In the first case (08-453), according to the complaint, Brasier admitted cultivating a significant portion of the marijuana found on his property. Co-defendant Teskey admitted to assisting Brasier with cultivating marijuana on Brasier's property. Brasier pled not guilty. Despite the weight of the evidence in the first case, the "least important factor in a detention analysis," see infra, the undersigned ordered Brasier released on conditions based in large part upon his up-to-that-time relatively slight criminal record as reported by pretrial services.
A little over a month later, Brasier was arrested again (08-518), alleged to have assisted a number of persons in taking (robbing) marijuana from a distant property and its cultivators. He did so by counseling one of the perpetrators as to who should comprise the "team" which was to take the marijuana, and in loaning his trailer to the team for the purpose of hauling the drug plants. Marijuana was again found in a significant amount in a dried form in Brasier's home upon search of Brasier's premises, and at a separate address on Brasier's property. Brasier was alleged to have control, in whole or in part, of all residences on his property. The team was alleged to have participated in other actual robberies in which marijuana was stolen from other cultivators at gunpoint and by ruse of the team dressing up as police officers. Brasier's trailer was again utilized for some of these robberies.
Subsequent to his second arrest, he appeared in the first case on a pretrial release revocation hearing, and in the second case on an initial detention hearing, before the Honorable Kimberly Mueller, who after a lengthy hearing, issued detention orders in both cases. It appears from the transcript that the bases for detention rested upon Brasier's alleged further marijuana trafficking, including his apparent control over areas on his premises which were associated with found marijuana in the second case.
On September 15, 2009, Braiser filed a motion seeking release in both cases based on asserted new and material evidence associated with the second case. Specifically, Brasier contended that utility receipts in Brasier's name were actually for utility service for others who Braiser permitted to reside on his property. Also introduced were "distribution" sheets demonstrating, at least on their face, that Brasier had not been factored in as a recipient for drug proceeds connected with the marijuana robberies. The three pounds or so of dried marijuana found in the Brasier residence itself was asserted to have been overlooked by the DEA agents, as well as the Brasiers, during and after the first search. Brasier was alleged to be undergoing deleterious health problems based on his incarceration. A declaration filed by Brasier's wife recounted that after the first arrest, Brasier had exclaimed his desire not to have anything further to do with marijuana. These points were argued further at hearing on September 24, 2009.
The government argued that statements by co-defendant Jones directly implicated Brasier in the second case, and significantly corroborated the other evidence demonstrating Brasier's complicity in at least the first marijuana robbery. Brasier's indictment in the second case charged in Count I a conspiracy to possess marijuana for sale, and in Count II, possession of marijuana for sale.
Due to the somewhat unusual "cutting out" of Brasier from marijuana proceeds, at least as demonstrated on the "distribution" sheets, the undersigned requested to see the police statement of co-defendant Jones and other evidence implicating Brasier in the second case. AUSA Beckwith produced this evidence as requested. The undersigned reviewed this evidence and issued a summary order on October 5, 2009, finding that insufficient new and material evidence was presented to change the determination of Judge Mueller to detain Brasier. This memorandum describes the reasons for the summary order.
First, it is important to distinguish between the legal stands involved in the two cases. For initial detention hearings, as was held in the second case, the government bears the burden of proof on flight risk by a preponderance of the evidence, and danger to the community by clear and convincing evidence. United States v.Motamedi, 767 F.2d 1403, 1406-07 (9th Cir. 1985). In significant drug trafficking cases, such as these two cases, the government may rely on the rebuttable presumption established by Congress that defendants in such cases are presumed to be a flight risk and a danger to the community. 18 U.S.C. § 3142 (e)(3). The presumption is part of the evidence as a whole that the judicial officer may rely upon; however, the government maintains the burden of proof. United States v. Hir, 517 F.3d 1081 (9th Cir. 2008). Weight of the evidence is a factor, but the least important factor in the analysis. Id. at 1090.
However, in a pretrial release revocation proceeding governed by 18 U.S.C. § 3148, applicable to the first case, a different standard is employed:
The judicial officer shall enter an order of revocation and detention if, after a hearing, the judicial officer--(1) finds that there is--
(A) probable cause to believe that the person has committed a Federal, State, or local crime while on release; or
(B) clear and convincing evidence that the person has violated any other condition of release; and
(2) finds that--(A) based on the factors set forth in section 3142(g) of this title, there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger ...