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United States v. Atikilty

United States District Court, Ninth Circuit

July 5, 2013



KANDIS A. WESTMORE, Magistrate Judge.


Defendant Desalegn Atikilty is charged by indictment with a violation of 18 U.S.C. § 922(g)(1) (Felon in Possession of a Firearm).

Defendant initially appeared before the undersigned on May 29, 2013, and was charged with the instant offense. On that date, Defendant was remanded to custody pending a detention hearing scheduled for May 31, 2013. On May 31, 2013, Defendant waived his right to a detention hearing and waived findings, while retaining his right to seek release at a later date should his circumstances change. On June 27, 2013, Defendant requested a full detention hearing, so Pretrial Services prepared a full bail study. On July 2, 2013, the Court conducted a detention hearing. Defendant was present, in custody, and represented by Assistant Federal Public Defender Ellen Leonida. Assistant United States Attorney Brigid Martin appeared on behalf of the Government. For the reasons stated below, the Court orders that Defendant be detained.


The Bail Reform Act requires that in a pretrial posture, the Government bears the burden of proving that a defendant poses a risk of flight and/or a danger to the community that cannot be mitigated through the imposition of conditions of release. If the Government does not meet its burden, the court's duty is to fashion appropriate conditions that permit the defendant to remain out of custody during the preparation of his or her defense, while safeguarding against flight or danger to the community. Close cases should result in release: "[t]o give effect to the principle that doubts regarding the propriety of release be resolved in favor of the defendant, the court is to rule against detention in close cases." United States v. Chen, 820 F.Supp. 1205, 1208 (N.D. Cal. 1992) (Walker, J.) (citing United States v. Motamedi, 767 F.2d 1403, 1405-06 (9th Cir. 1985)).

A person facing trial generally shall be released if some "condition, or combination of conditions... [can] reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c). In non-capital cases, pretrial release should be denied "[o]nly in rare circumstances." Motamedi, 767 F.2d at 1405; see also United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding constitutionality of Bail Reform Act; "[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception"). Bail hearings generally proceed by proffer, and the rules of evidence do not apply. 18 U.S.C. § 3142(f). At the hearing, the court determines whether any conditions in section 3142(c) will reasonably assure the defendant's appearance and the safety of the community or another person. Id. The Bail Reform Act "mandates release of a person facing trial under the least restrictive condition or combination of conditions that will reasonably assure the appearance of the person as required." Motamedi, 767 F.2d at 1405.

In evaluating whether pretrial release is appropriate, a court must consider (1) the nature and circumstances of the offense, (2) the weight of the evidence, (3) the history and characteristics of the person (including his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug and alcohol abuse, criminal history, or record concerning appearance at court proceedings), and (4) the nature and seriousness of the danger to any person or the community posed by the person's release. 18 U.S.C. § 3142(g); Motamedi, 767 F.2d at 1407.

A. The Nature and Circumstances of the Offense and Weight of the Evidence

The indictment charges that on or about March 26, 2013, Defendant, having previously been convicted of a felony crime punishable by a term of imprisonment exceeding one year, unlawfully and knowingly possessed a firearm, specifically, a 9mm Glock firearm, serial number TAL026, in and affecting interstate and foreign commerce, all in violation of Title 18, U.S.C. § 922(g)(1). The nature and circumstances of this offense weigh in favor of detention.

At the hearing, the Government proffered that an officer had found Defendant in his illegally parked car near a park with children present. The officer smelled marijuana emanating from the car and found Defendant's eyes blood shot and glazed over. Defendant admitted that he had been smoking marijuana but told the officer that he had a cannabis card. The officer conducted a wants and warrants check and determined that Defendant was on active parole following a robbery conviction. The officer conducted a parole search of Defendant's person and found a small baggie containing suspected methamphetamine. The officer also found a firearm located on the floor board of the car next to the driver's seat. The firearm was a 9mm Glock loaded 9 rounds of ammunition. The firearm had been reported stolen in a residential burglary a week earlier.

After waiving his Miranda rights, Defendant admitted to possessing the firearm, though he claimed he had found it at a friend's house. Accordingly, the weight of the evidence weighs in favor of detention.

B. The History and Characteristics of the Defendant and the Nature and Seriousness of the Danger to Any Person or the Community

Defendant is 28 years old. He was born in Sudan, immigrated to the United States in 1992, and became a naturalized citizen in 1997. He has resided in Oakland, California since emigrating, and prior to his arrest ...

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