The opinion of the court was delivered by: Magistrate Judge Charles E. Binder
DISTRICT JUDGE DAVID M. LAWSON
ORDER AFTER INITIAL APPEARANCE PURSUANT TO RULE 32.1 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE
I. Introduction and Initial Appearance
Defendant Dameon Russell was arrested on a warrant for supervised release violation issued by United States District Judge David M. Lawson. Defendant was previously convicted of Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(b)(1)(d). Defendant requested appointment of counsel and completed a financial affidavit. After review of the affidavit, it was determined that Defendant qualified for appointment of counsel and the Court directed that counsel be appointed.
Defendant appeared with appointed counsel on April 19, 2010, for his initial appearance on allegations of supervised release violations. At that time, Defendant was given the advisement of rights as provided in Rule 32.1(b)(1) of the Federal Rules of Criminal Procedure.
Pending further proceedings, the Government moved to detain the Defendant. Rule 32.1(a)(6) gives this magistrate judge the authority to release or detain a person charged with supervised release violations under 18 U.S.C. § 3143(a). The statute establishes a presumption in favor of detention that is rebuttable only upon a showing by the defendant, by clear and convincing evidence, that he or she is not likely to flee or pose a danger to any other person or the community. FED. R. CRIM. P. 32.1(a)(6).
Moreover, since Defendant Russell has been convicted of a violation of the Controlled Substances Act for which the sentence is greater than 10 years' imprisonment, 18 U.S.C. §§ 3143(a)(2) and 3142(f)(1)(C) give rise to a separate rebuttable presumption that there are no conditions which will reasonably assure the safety of the community.*fn1
Defense counsel advised the Court that in light of a recently filed Indictment which contains drug possession and distribution charges, Defendant waived his right to a detention hearing. The Court confirmed this waiver with Defendant Russell through a series of direct questions.
If a person charged with supervised release violations is detained at the initial appearance, the court must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred, unless the hearing is waived. FED. R. CRIM. P. 32.1(b)(1)(A).
The Petition in this case charges that Defendant committed six (6) violations of mandatory conditions; and violated standard condition #7 on six (6) occasions. After consultation with counsel, the Court was advised by defense counsel that the Defendant waived his right to the preliminary hearing. This waiver was confirmed by direct questioning of Defendant Russell.
IV. Conclusions and Recommendation
1. I find that Defendant has made a knowing and voluntary waiver of his right ...