United States District Court, M.D. Florida, Fort Myers Division
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
matter comes before the Court upon review of Defendant Jerry
Browdy's Objection and Appeal of Honorable Magistrate
Judge Carol Mirando's Order of Detainment and Denial of
Bond Pending Trial (Doc. 126) filed on March 14, 2017. The
United States of America filed a Response in Opposition to
Defendant's Appeal on March 28, 2017. (Doc. 127). This
matter is ripe for review.
6, 2016, a federal grand jury issued a one count indictment
against Browdy and his Co-Defendants. Browdy was charged with
knowingly and willfully combining and conspiring to possess
and distribute 500 or more grams of methamphetamines in
violation of 21 U.S.C. § 841 (a)(1) and § 841 (b)(1
March 7, 2017, United States Magistrate Judge Carol Mirando
held a detention hearing . (Doc. 121). In her decision to
detain Browdy, Judge Mirando relied on the Government's
proffer, which included that Browdy wished to return to the
residence he was living at during his allegedly unlawful
activities, Browdy's prior criminal history and similar
offenses, Browdy's prior probation violations, and his
previous failures to appear during the adjudication of same.
Judge Mirando also heard argument from the Defense. (Doc. 122
requested, the district court must promptly undertake an
evaluation of the propriety of a magistrate judge's
pre-trial detention order. United States v.
Garcia-Enriquez, No. 2:15-CR-95-FTM-38MRM, 2015 WL
5159129, *2 (M.D.FIa. Sept. 2, 2015); U.S. v. Arevalo, 2013
WL 625041, *2 (M.D.FIa. February 19, 2013) (citing U.S.
v. King, 849 F.2d 485 (11th Cir. 1988)). A district
court reviews de novo a magistrate judge's pre-trial
release order. U.S. v. Megahed, 519 F.Supp.2d 1236,
1241-1242 (M.D.FIa.2007) (citing U.S. v. Hurtado,
779 F.2d 1467, 1481 (11th Cir. 1985)). Review by the district
court contemplates an "independent consideration of all
facts properly before it," Megahed, 519
F.Supp.2d at 1241 (citing U.S. v. Gaviria, 828 F. 2d
667, 670 (11th Cir. 1987) (citing Hurtado, 779 F.2d
at 1480-81)). If the district court concludes after a careful
review the magistrate judge's findings of facts based on
both the parties' papers and the evidence presented at
the detention hearing, and the magistrate judge correctly
applied the law, "[t]he court may then explicitly adopt
the magistrate's pre-trial [release] order."
U.S. v. King, 849 F.2d 485, 490 (11th Cir. 1988).
However, if necessary to the resolution of an essential issue
of fact, the district court may marshal further evidence by
convening a hearing. Megahed, 519 F.Supp.2d at 1242.
objects to Judge Mirando's Detention Order arguing that
the Government failed to meet its burden to demonstrate that
Browdy was a flight risk and a danger to the community. The
Bail Reform Act of 1984 permits a district court to grant or
deny detention to a defendant after indictment pending trial.
See 18 U.S.C. § 3142. After conducting a
detention hearing under 18 U.S.C. § 3142(f), a judicial
officer must consider a number of factors to determine
whether "any condition or combination of conditions . .
. will reasonably assure the appearance of such person as
required and the safety of any other person and the
is a rebuttable presumption of risk of flight or danger to
the community when a defendant has been indicted for certain
crimes. Id. at § 3142(e)(3). Specifically, when
a defendant is indicted for an offense punishable by more
than 10 years imprisonment pursuant to the Controlled
Substances Act, there is a presumption that no condition of
release will reasonably assure the appearance of the
defendant and the safety of the community. Id. at
§ 3142(e)(3)(A). A grand jury indictment triggers this
statutory presumption. See United States v. Hurtado,
779 F.2d 1467, 1479 (11th Cir.1985).
the statutory presumption is raised, the defendant has the
burden of production at the detention hearing "to
suggest that he . . . [is] either not dangerous or not likely
to flee if turned loose on bail." United States v.
Quartermaine, 913 F.2d 910, 916 (11th Cir. 1990).
"Even if [a defendant's] evidence is sufficient to
rebut the statutory presumption, the presumption remains in
the case as an evidentiary finding militating against
release, to be weighed along with other evidence relative to
factors listed in section 3142(g)." Id.
(internal punctuation omitted). In this sense, the Government
retains the burden of persuasion to show by a preponderance
of the evidence that the defendant's presence cannot be
reasonably assured by a conditional release or to present
clear and convincing evidence that the defendant is a danger
to the community. See Id. at 917.
argues that in denying pretrial release, Judge Mirando did
not consider that he voluntarily surrendered himself upon
being advised of the charges, that his criminal history is
composed of only three cases that occurred several years
prior, that he has no other sentence pending, and that the
Government has requested two trial continuances whereas he
has announced ready in both instances. Moreover, Browdy
argues that while he may have failed to appear for previous
charges, he did not flee the jurisdiction, and that he is not
a flight risk now. Finally, he argues that the Government
introduced no evidence to show that he was a danger to the
initial matter, because Browdy was indicted for an offense
punishable by a term of imprisonment lasting more than ten
(10) years under the Controlled Substances Act, a rebuttable
presumption applies against the existence of conditions that
will reasonably assure Browdy's appearance, and the
safety of the community. For the reasons stated below, Browdy
has not overcome the presumption on either risk of flight or
danger to the community.
consideration of the record, the Court finds that the
Government established by a preponderance of the evidence
that Browdy is a flight risk. It is notable that Browdy has a
prior criminal history, including both probation violations
and failures to appear. Simply because Browdy ...