United States District Court, N.D. Iowa, Cedar Rapids Division
ORDER FOR PRETRIAL DETENTION
JON STUART SCOLES, Magistrate Judge.
On the 5th day of May, 2014, this matter came on for hearing on the Government's request to have the Defendant detained prior to trial. The Government was represented by Assistant United States Attorney Anthony Morfitt. The Defendant appeared personally and was represented by his attorney, Raphael M. Scheetz.
I. RELEVANT FACTS AND PROCEEDINGS
On June 5, 2012, Defendant Democrus Pernell Burston was charged by Indictment (docket number 2) with being a prohibited person in possession of firearms. At the arraignment on April 30, 2014, Defendant entered a plea of not guilty and trial was scheduled before Chief Judge Linda R. Reade on June 30, 2014.
Special Agent Thomas Reinwart of the Federal Bureau of Investigation testified regarding the circumstances underlying the instant charge. On March 19, 2012, state law enforcement officers executed a search warrant at Defendant's apartment on North Towne Court in Cedar Rapids, Iowa. Officers found four rifles and a box of ammunition. Defendant told officers that Keaton Hepker brought the guns to his apartment because Hepker thought his residence may be searched by authorities. When questioned by police, Hepker told officers he took the guns to Defendant's apartment because he didn't trust some of the persons coming to his residence. Jamia Peoples, who had previously lived in the apartment with Defendant, told authorities she found out about the guns and asked Defendant to get rid of them. When Defendant refused, Peoples decided to move out.
According to the pretrial services report, Defendant is 39 years old. He was born in Atlanta, Georgia, and lived there most of his life. In 2011, Defendant and Peoples relocated to Cedar Rapids, Iowa, because they had "lost" their apartment in Atlanta and Peoples received financial assistance from her family to move to Cedar Rapids. Defendant and Peoples have a 4-year-old daughter, who lives with Peoples in Cedar Rapids. Defendant also has two children, ages 14 and 13, from a prior marriage. The children live with their mother in Memphis, Tennessee.
According to Defendant, his relationship with Peoples ended as a result of the events giving rise to this charge. At that time, Defendant returned to Atlanta. For the past two years, he has been employed as a barber. The owner of the business identified Defendant as his "shop manager" and verified that Defendant lived in a room in back of the barber shop. If released, however, Defendant intended to reside with his uncle in Atlanta.
Defendant is in good health and has no history of mental or emotional health concerns. According to Defendant, he began smoking marijuana when he was 31 years old and smoked "once or twice" per week for several years. Defendant told the pretrial services officer that he had not used marijuana in the past five or six years. That statement is inconsistent, however, with the testimony at the hearing. Special Agent Reinwart testified that when the search warrant was executed on March 19, 2012, Defendant told officers that he had used marijuana on the prior evening.
Defendant's prior criminal record consists primarily of misdemeanors. Significantly, however, Defendant has failed to appear on at least two occasions - once in Fulton County, Georgia, in 1998, and again in Douglas County, Georgia. In the latter case, Defendant was charged on January 7, 2004 with possession of less than one ounce of marijuana and theft by receiving stolen property. More than four years later, Defendant was stopped for driving while suspended and subsequently charged with failing to appear on the earlier charges. In September 2008, Defendant was sentenced to 97 days in jail on the 2004 charges and placed on probation for 5 years. Defendant was subsequently found in violation of his probation on three separate occasions. A warrant was issued for Defendant's arrest on June 27, 2011 (at about the time Defendant moved to Iowa) and remained pending until a few weeks ago.
In 2010, while on probation, Defendant was charged and convicted of carrying a concealed weapon. He was arrested under the name of Akari Adams.
The indictment in the instant action was returned by the grand jury on June 5, 2012, approximately 10 weeks after the search warrant was executed. There is no evidence, however, that Defendant was told that charges would be brought against him, or that he was aware of the fact that an indictment had been returned. Apparently, however, when he returned to Georgia approximately two years ago, Defendant failed to notify his probation officer, despite the fact that he presumably knew he remained on probation. It is the Court's understanding that Defendant was arrested on the Georgia warrant on March 30, 2014, and was then transferred to the United States Marshals Service custody on the instant warrant on April 18. There is a probation revocation hearing scheduled in Georgia on May 19, 2014.
The release or detention of a defendant pending trial is governed by the Bail Reform Act of 1984, 18 U.S.C. § 3142. In United States v. Salerno, 481 U.S. 739 (1987), the United States Supreme Court upheld the constitutionality of the Bail Reform Act of 1984, while noting that "[i]n our society liberty is the norm, and ...