The opinion of the court was delivered by: Magistrate Judge Kemp
The above defendant appeared before the Court for a detention hearing on January 29, 2007. Following the hearing, the Court requested the parties to brief two issues: whether a rebuttable presumption of detention applies to this case, and whether other courts have established bond conditions, or denied release, to defendants charged with capital murder. Those briefs have now been filed. For the following reasons, the Court concludes that there are conditions of release which adequately assure the safety of the community and insure the defendant's appearance at future court proceedings. Consequently, the Court will enter an order of release.
The factual background of this case comes mainly from the superseding indictment which was returned in the Western District of Michigan on January 25, 2007. Defendant, along with Jeremiah Sims, is charged with being part of a murder-for-hire conspiracy that resulted in the death of Chrissy Satterfield on August 5, 1996. The indictment alleges that defendant agreed to pay another individual, Joshshan Childs, to kill Ms. Satterfield, and that Childs and Sims carried out the murder after crossing state lines to do so. The indictment also contains death-penalty specifications against Ms. Ross. Although the indictment does not provide additional details of the crime, the United States presented testimony at the detention hearing (which was relayed to the witness by the case agent in Michigan) that Ms. Ross's husband was allegedly having an affair with Ms. Satterfield, a teenager, and that Ms. Ross offered Mr. Childs money to kill both Ms. Satterfield and her husband. Mr. Childs has been convicted of murder, and Mr. Sims is awaiting trial.
Ms. Ross's background, as revealed in the Pretrial Services report, will be set forth below, as will additional facts which the Court considers to be important for this decision. The threshold legal issue, however, is what legal standard is to be applied to the United States' request for detention.
Under the Bail Reform Act, a two-step process has been established for conducting detention hearings and for determining which legal standard to apply to requests for detention. 18 U.S.C. §3142(f) provides that the United States is entitled to a detention hearing in certain kinds of cases, which include cases such as this one where the defendant is accused of both a crime of violence and an offense which carries a potential death sentence. 18 U.S.C. §3142(f)(1)(A), (B). Section 3142(e) provides that if the Court determines, after a detention hearing, that no conditions or combination of conditions, will reasonably assure the appearance of the defendant or protect either specific individuals or the community from a risk of harm, the Court shall order the defendant detained without bond. In making that decision, the Court must apply a rebuttable presumption against release in certain classes of cases specified in §3142(e). Those include cases described in §3142(f)(1), such as this case, but only if the Court finds that the defendant has been previously convicted of such offense, that the offense was committed while the person was on pretrial release, and the instant offense was committed within five years of the previous offense. Otherwise, the presumption applies only in certain drug, firearm, and terrorism cases, and cases involving minor victims, that are specifically detailed in §3142(e). Capital murder is not one of those offenses. See United States v. Eischeid, 315 F.Supp.2d 1033 (D.Ariz. 2003). Consequently, the United States' request for detention is evaluated without reference to any presumptions, and the United States must demonstrate by clear and convincing evidence that the defendant is a danger to the community or must show by a preponderance of the evidence that the person sought to be detained is a serious risk of flight.
In making the determination about whether the United States has met its burden of proof, the Court is required to look at the factors described in 18 U.S.C. §3142(g). That section of the Act requires the judicial officer to consider available information concerning (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics of the person, and (4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See, e.g., United States v. Arvanitis, 667 F. Supp. 693 (N.D.Ill. 1987). Detention may be ordered based upon a finding that the defendant is likely to continue to engage in criminal activity which poses a threat either to the community or to the safety of particular persons, and such circumstances are not limited to proof that the defendant poses a serious risk either to obstruct justice or to intimidate or injure a prospective witness or juror. See, e.g., United States v. Daniels, 772 F.2d 382 (7th Cir. 1985); United States v. Yeaple, 605 F.Supp. 85 (M.D.Pa. 1985).
Taking these factors in order, the nature and circumstances of the offense clearly favor the United States. The crime charged is a crime of violence and represents one of the most serious crimes a defendant can be charged with in the federal system. "Other courts have given considerable weight to the prospect of the death penalty in assessing whether a defendant has an incentive to flee. See United States v. Gonzales, 995 F.Supp. 1299, 1302 (D.N.M.1998) (death penalty creates "strong incentive to flee prior to trial"); United States v. Nichols, 897 F.Supp. 542, 547 (W.D.Okl.1995)(same)." United States v. Eischied, 315 F.Supp.2d at 1037. The weight of the evidence is a neutral factor here. There is an indictment, so a grand jury has found probable cause, but no direct evidence was presented at the detention hearing, so the Court cannot evaluate this factor beyond noting that a probable cause showing has been made.
With respect to the characteristics of the defendant, the Pretrial Services report reveals the following. Ms. Ross has resided in the Columbus area for at least ten years. She is 44 years old. She had been gainfully employed for most of her adult life, and currently works as an aide at an assisted living facility, a job she had held for more than four years. She lives with her fiancè of seven years in his home. She has three children, all of whom reside in Columbus, and the youngest of whom still resides with her mother. She has no record of substance abuse, and her criminal record includes only traffic offenses, the last of which occurred more than seven years ago. These factors strongly favor the defendant.
The United States did not present any evidence that the defendant is a current threat to any specific member of the community or to the community generally. Although there was mention made of an attempt to have her ex-husband murdered in 1996, there was no evidence that the defendant currently poses a threat to Mr. Ross. Further, apart from the instant offense, there was no evidence presented that she is generally a danger to the community.
Finally, there was evidence presented that the defendant has been aware for a substantial period of time that she might face charges in this case. She has been interviewed on at least four occasions by an FBI agent, and was aware of the case pending in Michigan. She made no effort, however, to conceal her whereabouts, and has maintained the same address for approximately seven years. Certainly, there is a difference between being generally aware of the possibility of facing a criminal charge and being indicted for an offense that potentially carries the death penalty. However, the defendant's awareness of the charge and the fact that she has made no effort to avoid apprehension or prosecution are factors that favor the setting of release conditions. The Court also notes that she appears to have substantial support from family, friends, and co-workers who would be of assistance in assuring that she continues to face these charges responsibly. Finally, at least two other courts have established conditions of release in similar cases based upon similar factors. See United States v. Eischied, supra ("The Court is reluctant to conclude that a serious flight risk must be found in an otherwise stable life solely because the charge asserted by the Government carries the death penalty"); cf. United States v. Barnett, 986 F.Supp. 385 (W.D. La. 1997)(setting bond conditions for two defendants involved in attempted murder-for-hire scheme).
Taking all of these factors together, the Court finds that the United States simply has not proved that there are no release conditions that would assure either the defendant's appearance or the safety of the community. The release conditions should necessarily be strict, however, given the seriousness of the charges pending. The Pretrial Services office has recommended conditions which include electronic monitoring, travel restrictions, and pretrial supervision. The Court concludes that a monetary bond should also be imposed. Therefore, the Court will enter an order of release that incorporates all of the recommended conditions of release but, in addition, requires the posting of a $200,000.00 unsecured bond with a ten percent deposit. The Court finds that this combination of conditions will be sufficient to assure the safety of the community and the appearance of the defendant at future court proceedings.
The Clerk is directed to set a time for an in-court hearing where the release conditions can be explained to the defendant and her signature on the bond can be obtained.
Terence P. Kemp United States ...