Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Browdy

United States District Court, M.D. Florida, Fort Myers Division

April 3, 2017

UNITED STATES OF AMERICA
v.
JERRY BROWDY

          ORDER

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         On July 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 )(A)(viii).

         On 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 at 2).

         STANDARD

         When 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.

         DISCUSSION

         Browdy 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 community.[1]

         There 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).

         Once 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.

         Browdy 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 community.

         As an 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.

         Upon 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.