United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON DEFENDANT'S MOTION FOR DETENTION
HEARING
TANYA
WALTON PRATT, JUDGE
This
matter is before the Court on Defendant Norman Mundy's
(“Mundy”) Motion for Detention Hearing
(Filing No. 26) in which he moved to reopen the
Pretrial Detention Order issued by the Magistrate Judge on
June 7, 2019 (Filing No. 18 and Filing No.
19). In his Motion, Mundy asks the Court to revisit his
detention status because the Magistrate Judge mistakenly
considered someone else's conviction when reviewing
Mundy's criminal history. For the reasons stated below, a
hearing was granted, but the request for
release is denied.
I.
FINDINGS OF FACT
On May
23, 2019, an Indictment was filed which charged Mundy with
Possession with Intent to Distribute and to Distribute 50
grams or more of a Mixture or Substance Containing a
Detectable Amount of Methamphetamine, in violation of Title
21, United States Code, Sections 841(a)(1), 841(b)(1)(B) and
846. This felony drug offense carries a maximum sentence of
forty years' imprisonment and a statutory mandatory
minimum sentence of five years' imprisonment.
On June
6, 2019, a detention hearing was held before the Magistrate
Judge. Mundy, represented by counsel, was advised of his
right to pretrial release under terms and conditions to
ensure his appearance for trial. The Government orally
motioned for Mundy's detention pursuant to 18 U.S.C.
§ 3142(f). The Pretrial Services Report
(“PS3”), prepared by a Probation Officer, was
admitted into evidence without objection. The PS3 indicated
that Mundy is unemployed, has daily methamphetamine use, a
mental health history and has failed to appear in court when
ordered to do so. The PS3 also stated that Mundy had a July
6, 2004 felony conviction for Conspiracy to Distribute
Marijuana in federal court in which two separate violations
were filed on supervised release. The PS3 further reported a
2016 arrest for felony possession of methamphetamine, and a
misdemeanor conviction for possessions of paraphernalia.
Mundy scored a Category 4 on a pretrial risk assessment,
indicating a relatively high risk of flight and/or danger to
the community.
The
Government noted that Mundy was allegedly in possession of
over 170 grams of crystal methamphetamine, along with digital
scales, to support its contention that the case against Mundy
was strong. The Government asserted, based on information
provided in the PS3, that Mundy's 2004 felony conviction
and 2016 conviction were reasons for detention. In
particular, the Government argued “[m]ost notably, his
most recent conviction was possession of methamphetamine as a
felony. He was placed on probation, and that probation was
revoked. Your honor, in total, the defendant has had four
violations of probation.” This statement was not
accurate. Unfortunately, neither Mundy nor his counsel
challenged this argument or offered any correction to the
PS3.
At the
conclusion of argument, the Magistrate Judge issued an order
of detention pending trial finding that a rebuttable
presumption for detention arises under 18 USC 3142(E)(3) and
Mundy has not introduced sufficient evidence to rebut that
presumption. (Filing No. 19 at 1.) The Magistrate
Judge found by a preponderance of evidence that no condition
or combination of conditions of release would reasonably
assure Mundy's presence as required or safety to the
community, based on the weight of evidence against him being
strong, the lengthy period of incarceration if convicted,
prior criminal history, alcohol and substance abuse history;
lack of stable employment and prior failures to appear in
court. Id. at 2-3.
Mundy
petitions for a new hearing asserting that an error in his
criminal history reflected in the PS3 warrants his release.
He disputes that he was convicted of “possession of
methamphetamine, a felony, and two possessions of
paraphernalia, a misdemeanor” and asserts that Michael
Stevens, his former brother-in-law, was the person arrested
and convicted of this crime. (See Filing No. 26 at
1.) A hearing was held on August 7, 2019 in which
Mundy's counsel and the Government's attorney
presented argument. The Court heard testimony from witness
Special Agent Paul Meyer regarding the weight of the evidence
against Mundy. The Government concedes the error in the PS3.
II.
CONCLUSIONS OF LAW
The
procedures governing detention hearings are set forth in the
Bail Reform Act, 18 U.S.C. §3142, et. seq. Upon
motion by the government in a case where a defendant is
eligible for detention, the court must hold a detention
hearing to determine whether any condition or combination of
conditions will reasonably assure the appearance of the
defendant as required and the safety of any other person and
the community. See 18 U.S.C. §3142(f). 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
consider 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 crime of violence . . .;
(2) the weight of the evidence against the accused;
(3) the history and characteristics of the person, including-
(A) the person's character, physical and mental
condition, family ties, employment, financial resources,
length of residence in the community, community ties, past
conduct, history relating to drug or alcohol abuse, criminal
history, ...