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United States v. Sellers

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

November 22, 2017

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

          ORDER GRANTING MOTION TO REVOKE RELEASE ORDER

          TANYA WALTON PRATT, JUDGE United States District Court.

         This matter is before the Court on the Government's request that the Court conduct a de novo review of the Magistrate Judge's Order permitting pretrial release of Defendant Gary Sellers ("Sellers") pursuant to 18 U.S.C. § 3145(a). The Court has reviewed the Magistrate Judge's Order Setting Conditions of Release (Filing No. 44), a rough draft unofficial transcript of the proceedings held on November 16, 2017, the pretrial services report ("PS3") prepared by the United States Probation Office, the Government's Motion for Revocation of Release Order (Filing No. 45), the Defendant's Response to Plaintiffs Motion for Revocation of Release Order (Filing No. 50) as well as testimony, proffers, and argument submitted at the November 21, 2017 hearing. For the reasons stated below, the Court finds the Government has met its burden to show by clear and convincing evidence that there are no conditions or combination of conditions which would overcome the unacceptable risk that Sellers's release poses a danger to the community. Accordingly, the Government's Motion for Revocation of Release Order is GRANTED.

         I. BACKGROUND

         On October 11, 2017, Sellers was indicted as the lead defendant on one count of conspiracy to possess with intent to distribute and to distribute a controlled substances, a violation of Title 21, United States Code, Sections 841(a)(1) and 846. He made an initial appearance on November 13, 2017 and waived his right to a formal arraignment. The Government orally moved for pretrial detention pending trial pursuant to Title 18, United States Code, Section 3142(f)(1)(B) and (C), on the basis that Sellers is charged with an offense under the Controlled Substance Act for which the maximum penalty is ten years or more. On November 16, 2017, the Magistrate Judge conducted a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of the statute would reasonably assure the appearance of Sellers as required and the safety of any other person and the community. The parties agreed that there is a rebuttable presumption for detention given the charges. At the detention hearing, the Magistrate Judge found (and the Government agreed) that Sellers does not present a risk of flight that cannot be adequately addressed by conditions. The Magistrate Judge also found the Government had not shown by clear and convincing evidence that there was no combination of conditions that could reasonably assure the safety of others or the community and Sellers was ordered released under certain conditions. The Government moved for a stay of the Magistrate Judge's order pending de novo review by the District Court Judge. A hearing on the Government's motion to revoke the detention release order was held on November 21, 2017.

         II. FINDINGS OF FACT

         Sellers has significant ties to the community. He is a lifelong resident of Indiana and has lived in Indianapolis on and off since 2002. Sellers has the support of numerous family members, friends and clients and at least 25 people have attended his hearings. He has no verifiable employment history, but an employer is willing to hire him if released. Sellers is self-employed as a basketball skills trainer of student athletes and his clients have paid him thousands of dollars, however, Sellers has not filed tax returns on this income (or reported only minimal income) in the past three years. Sellers has two children by different mothers. His eldest child lives in Kentucky and the mother reports that Sellers is supportive both emotionally and financially. The mother of his other child is a protected party in a protective order that is in place until March 2018. Sellers has been with his current girlfriend for six years and she relies on him for emotional support.

         Sellers reports sub-leasing and living at a house on Salona Place in Indianapolis since July 2017. However, he is unsure of whose name is listed on the lease. The Government presented evidence that Sellers moved into the Salona Place house in August 2107 and that prior to his residency, the house was utilized by Sellers as a "stash house" for the purpose of storing and trafficking controlled substances. Sellers has no history of violence in his criminal history. He has eleven prior convictions including a prior felony conviction in 2003 for Possession of Cocaine or Narcotic Drug. His misdemeanor convictions consist of six alcohol related offenses and three drug related offenses. His last known conviction was over seven years ago. In 2001, Sellers was arrested and charged with battery resulting in bodily injury, criminal recklessness, and pointing a firearm. Specifically, he was the victim of a home invasion on this occasion, and he shot at the perpetrators as they left his residence. When the police arrived, they found the drug Ecstasy and $148, 000.00 in cash. The charges against Sellers were ultimately dismissed due to a Fourth Amendment issue with the officers' entry into the residence. At the time of his instant arrest, Sellers tested positive for marijuana.

         The Government presented evidence of the nature and circumstances of the offense charged. The evidence against Sellers is as follows: an investigation began in July 2017 which involved court authorized interception of several cellular telephones. The Drug Enforcement Agency's ("DEA") Diversion unit was investigating suspected prescription drug and heroin trafficking. The investigation included intercepts over Sellers' cellular telephone for a sixty day period in July and August 2017, and during that time Sellers was dealing drugs on a daily basis. He was primarily dealing marijuana, but also trafficked in methamphetamine and heroin (as charged in the Indictment). The investigation revealed that Sellers utilized Solana Place as a' stash house'. Detective Ryan Clark testified that Sellers routinely conducted drug deals in the parking lot of the gym where he went to train children.

         On November 9, 2017, a federal search warrant was executed at Sellers's home on Solana Place. In that search, officers found three firearms: one firearm was under his bed, one was under the couch, and the third was in a 'trap'[1] in one of Sellers's vehicles, along with a sum of cash. Detective Clark also testified that Sellers kept most of his assets (multiple vehicles and residences) in other people's names, which he knows to be a tactic utilized by drug traffickers to thwart law enforcement detection.

         III. CONCLUSIONS OF LAW

         Detention may be based on a showing of either dangerousness or risk of flight; proof of both is not required. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985). With respect to reasonably assuring the safety of any other person and the community, the Government bears the burden of proving its allegations by clear and convincing evidence. 18 U.S.C. § 3142(f); United States v. Salerno, 481 U.S. 739, 742, 107 S.Ct. 2095, 2099, 95 L.Ed.2d 697 (1987); Ports, 786 F.2d at 764; Orta, 760 F.2d at 891 & n. 18; Leibowitz, 652 F.Supp. at 596; United States v. Knight, 636 F.Supp. 1462, 1465 (S.D. Fla. 1986). Clear and convincing evidence is something more than a preponderance of the evidence but less than proof beyond a reasonable doubt. Addington v. Texas, 441 U.S. 418, 43 1-33, 99 S.Ct. 1804, 1812-13, 60 L.Ed.2d 323 (1979).

         In determining whether there are conditions of release that will reasonably assure a defendant's appearance and the safety of any other person and the community, the Court must take into account the following factors under 18 U.S.C. § 3142(g):

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

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