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United States v. Higgins

United States District Court, S.D. Indiana, Indianapolis Division

March 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY HIGGINS, Defendant.

          ORDER GRANTING GOVERNMENT'S MOTION FOR REVOCATION OF RELEASE ORDER

          SARAH EVANS BARKER, JUDGE United States District Court

         This cause is before us on the United States' Motion for Revocation of Release Order [Docket No. 18], filed March 16, 2017. The United States seeks de novo review of the Magistrate Judge's release order entered on March 16, 2017, arguing that no condition or combination of conditions of release set forth under 18 U.S.C. § 3142(b) or (c) will reasonably assure the safety of the community and Defendant's appearance at future court proceedings. Having reviewed de novo the written documents filed with the Court and listened to the audio recording of the hearing before the Magistrate Judge, I find that no additional argument or evidence is required in order to rule on the pending motion. See United States v. Mire, 2011 WL 1331999, at *1 (S.D. Ind. Apr. 6, 2011). Accordingly, the following findings of fact and conclusions of law and hereby entered.

         Findings of Fact

         These facts are adopted from the Government's summary, to which the Defendant interposed no objections.

         On January 21, 2017, deputies from the Marion County Sheriff's Department arrived at 3146 E. Robson St. in Indianapolis, Indiana to serve an arrest warrant on a Ms. Miranda Hodges. Upon entry into Ms. Hodges's residence, the deputies observed five individuals in the living room area, one of whom was Defendant Gary Higgins, who was sitting on a sofa. According to Deputy Randy Mullins, Higgins had a “baggie” visibly wedged under his left knee on the sofa, which, when recovered by the officers, was found to contain several smaller “baggies” consistent with drug packaging. Deputy Mullins also later discovered another “baggie” on the left corner of the sofa cushion where Higgins had been sitting. The second “baggie” contained what was later analyzed and found to be 27.47 grams of methamphetamine. Deputy Mullins also found a set of keys on the sofa next to the “baggie.” A search incident to Higgins's arrest revealed $228 in cash in Higgin's right front pants pocket and an electronic scale with white residue in his left jacket pocket.

         Following receipt of his Miranda warnings, Higgins consented to a search of his Chevrolet Silverado truck, which was parked outside the residence. The search revealed a loaded Ruger SR40C .40 caliber semiautomatic handgun and a loaded Jennings J-22 .22 caliber semiautomatic handgun in the center console. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) later determined that the Ruger .40 caliber semiautomatic handgun had been stolen from a Federal Firearms Licensee in Hancock County in August of 2016.

         On October February 22, 2017, a federal Grand Jury returned an Indictment charging Defendant Higgins as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Government moved for Higgin's pretrial detention based on the risk that he would fail to appear at future court hearings and that his release would pose a danger to the community. See 18 U.S.C. §§ 3142(e), (f)(1)(E), and (2)(A). A detention hearing was held on March 16, 2017 in which the Magistrate Judge determined that the Government had not met its burden of proving by preponderance of evidence that no condition of release would reasonably assure Higgins's appearance, nor of establishing by clear and convincing evidence that no condition of release would reasonably assure the safety of any other person and the community. Higgins was therefore ordered released under certain conditions, including home detention and GPS monitoring, but that order was stayed to allow the United States to file the instant appeal. [Dkts. 19, 21].

         Conclusions of Law

         “If a person is ordered released by a magistrate judge…the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release.” 18 U.S.C. § 3145(a). District Court review of the magistrate judge's order is conducted de novo by either reviewing the transcript of the detention hearing or holding a new hearing. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991). As mentioned above, in reviewing de novo the record and audio in this case, it was determined that no additional argument or evidence is required in order to rule on the pending motion. See United States v. Mire, 2011 WL 1331999, at *1 (S.D. Ind. Apr. 6, 2011).

         The United States sought the pretrial detention of Defendant Higgins based on the risk that he would fail to appear at future court hearings and the risk that he posed as a danger to the community, if he were released. See 18 U.S.C. §§ 3142(e), (f)(1)(E), and (2)(A). The United States has the burden of proving by preponderance of evidence that no condition of release would reasonably assure Defendant's appearance, and/or of establishing by clear and convincing evidence that no condition of release would reasonably assure the safety of any other person and the community. United States v. Portes, 786 F.2d 758, 765 (7th Cir. 1985). Clear and convincing evidence is something more than proof by a preponderance of the evidence but less than proof beyond a reasonable doubt. Addington v. Texas, 441 U.S. 418, 425 (1979).

         If the United States establishes by the appropriate standards that no conditions or combination of conditions will reasonable assure the appearance of the defendant and the safety of any other person and the community, the Court shall order the detention of the person before trial. 18 U.S.C. § 3142(e)(1).

         In determining whether there are conditions of release that will reasonably assure Defendant's appearance and the safety of any other person and the community, we have considered the following statutory factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a ...

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