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United States v. Milano

United States District Court, Ninth Circuit

July 26, 2013



KANDIS A. WESTMORE, Magistrate Judge.


Defendant Anthony John Milano is charged in an 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 July 11, 2013, and was charged with the instant offense. On that date, Defendant was remanded to custody pending a detention hearing scheduled for July 18, 2013. Pretrial Services prepared a full bail study and recommended that Defendant be detained. On July 18, 2013, the Court conducted the detention hearing. Defendant was present, in custody, and represented by Ellen Leonida of the Federal Public Defender's Office. Assistant United States Attorney Cynthia Frey 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 alleges that on or about March 21, 2013, the Defendant, having been previously convicted of a crime punishable by a term of imprisonment exceeding one year, unlawfully and knowingly possessed a firearm and ammunition, specifically, a Ruger LCR 38 Special, serial number 54066062, and five rounds of.38 caliber Special GFL ammunition, five rounds of.38 caliber Special R-P ammunition, one round of.38 caliber Special Federal ammunition, two rounds of.45 caliber Winchester Auto ammunition, and one round of 9mm Lugar RP ammunition, in and affecting interstate commerce, in violation of 18 U.S.C. § 922(g)(1). The Defendant is charged with a serious offense, involving both a substantial amount of a controlled substance, paraphernalia used to intravenously inject and smoke drugs, and a fully loaded firearm that was reported stolen.

At the hearing, the Government proffered that while performing a probation search at Defendant's mother's house, officers found 45 methadone pills[1], syringes, a meth pipe, a fully loaded 38, and a magazine for a Glock. The firearm was reported stolen from Danville. The firearm had 14 rounds of ammunition. The Defendant had $700 on his person even though the Defendant had not been gainfully employed in two years. The Defendant was with his significant other, Kellie Marshall, at the time of the arrest.

Defendant's possession of a loaded firearm suggests that he may have a propensity to be violent and pose a danger to the community. Therefore, the nature and circumstances of this offense weigh in favor of detention.

The loaded firearm, drugs, and paraphernalia were all found in Defendant's bedroom. Defendant's significant other reported that she and the Defendant were the only two people who stayed in the bedroom. 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 ...

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