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United States v. Crowe

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

May 11, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVONTAY L. CROWE, Defendant.

          ORDER GRANTING MOTION TO REVOKE RELEASE ORDER

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on the Government's Motion for Review of Release Order. (Filing No. 27). Specifically, the Government requests that the Court conduct a de novo review of the Magistrate Judge's Order permitting pretrial release of Defendant Devontay Crowe (“Crowe”) pursuant to 18 U.S.C. § 3145(a). The Court has reviewed the Order Setting Conditions of Release (Filing No. 26), Transcript of the detention hearing held on May 2, 2018 (Filing No. 32), the pretrial services report (“PS3”) prepared by the United States Probation Office, the Government's Motion for Revocation of Release Order (Filing No. 27), as well as argument submitted at the May 10, 2018 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 Crowe's release poses a danger to the community. Accordingly, the Government's Motion for Revocation of Release Order is GRANTED.

         I. BACKGROUND

         On May 2, 2018, Crowe was indicted for having violated Title 18, United States Code, Section 922(g)(1) by unlawfully possessing a loaded firearm on April 5, 2018, after having been previously convicted of an offense punishable by a term of imprisonment greater than one year. (Filing No. 16.) The Government orally moved for pretrial detention pending trial pursuant to Title 18, United States Code, Section 3142(f)(1)(E) on the basis that Crowe represented both a danger to the community and a risk of flight. On May 2, 2018, 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 Crowe as required and the safety of any other person and the community. At the conclusion of the hearing, the Magistrate Judge ordered that Crowe was to be released subject to certain conditions, (Filing No. 26), but the execution of the release order was stayed upon motion of the Government pending review of the order by this Court. A hearing on the Government's motion to review the detention release order was held on May 10, 2018.

         II. FINDINGS OF FACT

         The Indictment alleges that the Crowe illegally possessed a firearm on April 5, 2018. The evidence is that a loaded 9-millimeter semiautomatic handgun was seized from Crowe's vehicle when police officers made contact with and arrested him following a traffic stop. The firearm was located in the trunk of Crowe's vehicle, and Crowe acknowledged during a recorded interview that the firearm belonged to him and that he was prohibited from possessing it. In a search incident to his arrest, approximately three grams of marijuana and two grams of Fentanyl were found in Crowe's pocket. A black digital scale, which had been located in a tennis shoe next to the loaded firearm, was also seized from the trunk. Crowe was given his Miranda warnings and thereafter, admitted to ownership of the firearm. The weight of the evidence against Crowe is strong and favors pretrial detention. See 18 U.S.C. § 3142(g)(2).

         Crowe has significant ties to the community. He is a lifelong resident of Indianapolis, Indiana and owns no passport. He has lived for three months at his current address with his girlfriend. His mother is in federal custody pending trial on federal drug charges, however, Crowe has the support of family members-two grandmothers, an aunt and teenage siblings. He has not been employed since June 2017, but is willing to secure employment if released.

         Crowe has a history of arrests and criminal convictions for crimes of violence. His juvenile true findings include convictions for Misdemeanor Battery (2009), Possession of Marijuana (2009), and Burglary, Theft, Carrying a Handgun without a License and Dangerous Possession of a Firearm (2010). Task Force Officer (“TFO”) VanOeveren testified regarding a criminal recklessness incident in January 2012 in which the Crowe allegedly pulled a handgun from his waistband and fired multiple times into the air, during a confrontation at an apartment complex. Although Crowe was seventeen years old at the time of that offense, he was charged as an adult with Criminal Recklessness and Dangerous Possession of a Firearm under 49G06-1206-FC-044102. That case was ultimately dismissed as part of a plea agreement wherein Crowe pled guilty in a separate case to Aggravated Battery and Criminal Confinement. In exchange for his plea of guilty in the Aggravated Battery case, the Criminal Reckless and Dangerous Possession of a Firearm case was dismissed.

         Crowe has one prior felony conviction in 2013 for Aggravated Battery and Criminal Confinement which involved Crowe assaulting and knocking unconscious a victim, after the victim used counterfeit money when purchasing marijuana from Crowe. While serving his sentence for this offense, Crowe was arrested in 2015, for Attempted Murder, Robbery, Battery, Auto Theft and Unlawful Possession of a Firearm. The investigating officer of those offenses, Sergeant J. Bruce Wright, testified that Crowe shot and seriously wounded his mother's longtime boyfriend, Kevin Johnson, and also wounded his mother, Shemilah Crowe; however, the charges were dismissed when neither alleged victim could be located and produced for trial.

         Crowe has violated the conditions of probation on at least four occasions, but he had successfully completed his last sentence and at the time of his arrest in this case, was no longer on probation or parole. Crowe was not given a drug test at the time of his arrest, however, he reports in the PS3 that he is a daily user of marijuana and weekly user of cocaine. The PS3 places Crowe in risk category IV, indicating a relatively high risk of flight and danger to the community, but the Probation Officer recommended conditions would “reasonably assure defendants' appearance and safety to the community.” (Exhibit 1). The Court notes however, the risk assessment tool used by the Probation Department does not consider juvenile history or evidence of specific conduct.

         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 risk of flight, the Government bears the burden of proof by a preponderance of the evidence. United States v. Portes, 786 F.2d 758, 765 (7th 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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