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United States v. Perry

United States District Court, N.D. California, Oakland Division

January 13, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
DARRIAN LEONDRE PERRY, Defendant.

MELINDA HAAG United States Attorney J. DOUGLAS WILSON Chief, Criminal Division ROGER DINH Special Assistant United States Attorney Oakland, California Attorneys for United States of America

[PROPOSED] ORDER OF REVOCATION AND DETENTION

KANDIS A. WESTMORE, Magistrate Judge.

Defendant Darrian Leondre Perry was charged in an indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On June 25, 2014, Defendant was granted pretrial release on a $50, 000 unsecured bond. Defendant's mother, Errikka Richard and Defendant's grandmother, Catherine Richard both signed his bond as sureties.

On August 7, 2014, Defendant pled guilty pursuit to a plea agreement and remained on pretrial release pending sentencing. On August 25, 2014, Defendant appeared before the undersigned, during which Defendant's pretrial release conditions were modified allowing Defendant to be able to request to leave the Halfway House. On September 5, 2014, an additional modification was ordered removing the condition requiring residence at a halfway house and adding the condition requiring Defendant to reside at his mother's and grandmother's residence.

On November 2, 2014, Defendant was encountered by law enforcement officers during a traffic stop where Defendant was a passenger. He allegedly possessed a stolen firearm, fled from officers during the encounter and was arrested after a foot pursuit. On November 6, 2014, U.S. Pretrial Services filed, under seal, a petition for an arrest warrant for Defendant relating to his violations of pretrial release conditions. On November 24, 2014, the Government filed a criminal complaint in a new case charging Defendant with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

On December 15, 2014, a hearing was held on the Government's motion for revocation of Defendant's pretrial release pursuant to 18 U.S.C. § 3148. Defendant was present and represented by Assistant Federal Public Defender Angela Hansen. Special Assistant United States Attorney Roger Dinh appeared on behalf of the Government. Pretrial Services Officer Josh Libby was also present.

For the reasons set forth below, the Court orders that Defendant's pretrial release be revoked and that he be remanded to federal custody pending sentencing.

LEGAL ANALYSIS

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. 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). 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." United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).

After release, the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. 18 U.S.C. § 3148(b). The judicial officer shall enter an order of revocation and detention if the court makes a finding that there is either "probable cause to believe that the person has committed a Federal, State, or local crime while on release; or "clear and convincing evidence that the person has violated any other condition of release; and" finds that either "there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community" or "the person is unlikely to abide by any condition or combination of conditions of release." 18 U.S.C. § 3148(b).

Commission of a Crime and Violation of Conditions of Release

As provided above, Defendant's arrest and charge in the subsequent criminal matter for being a felon in possession of a firearm provides probable cause to believe that Defendant committed a Federal, State, or local crime while on pretrial release. In addition, the commission of another crime is a violation of the standard term of his pretrial release. This creates a rebuttable presumption that no condition or combination of conditions will assure that Defendant will not pose a danger to the safety of any other person or to the community. 18 U.S.C. § 3148. Defendant did not make a showing that would rebut the presumption and did not oppose the motion for revocation.

Unlikely to Abide by Any Condition or Combination of Conditions of Release

Defendant was released on a $50, 000 unsecured bond signed by his mother and grandmother. At Defendant's change of plea appearance on August 7, 2014, Defendant was reminded that all the conditions of pretrial release remained in effect. Both Defendant's mother and grandmother have put their personal financial statuses at risk by signing Defendant's release bond. Now that Defendant has failed to abide by the conditions of his pretrial release, their entire future is at risk should the Government seek forfeiture due to Defendant's failure to abide by the conditions of his release.

Based on Defendant's alleged commission of another firearm-related crime while on release, his mother and grandmother do not provide sufficient moral suasion, such that it is unlikely that he will abide by the conditions of his release.

CONCLUSION

In light of the above, Defendant's pretrial release is revoked, and he is remanded to the custody of the Attorney General or a 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. See 18 U.S.C. § 3142(i)(2). Defendant shall be afforded reasonable opportunity for private consultation with counsel. See 18 U.S.C. § 3142(i)(3). On order of a court of the United States or on request of an attorney for the Government, the person in charge of the corrections facility in which Defendant is confined shall deliver Defendant to a United States marshal for the purpose of an appearance in connection with a court proceeding. See 18 U.S.C. § 3142(i)(4).

IT IS SO ORDERED.


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