                     UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF COLUMBIA

____________________________
                             )
UNITED STATES OF AMERICA,    )
                             )
     v.                      )    Criminal Action No. 13-65 (RWR)
                             )
WILLIAM HUBBARD,             )
                             )
     Defendant.              )
____________________________ )

                          MEMORANDUM OPINION

     A magistrate judge ordered that defendant William Hubbard be

detained pending trial.    Hubbard moved for review of the

magistrate judge’s detention order.    After a hearing, Hubbard’s

motion was denied.    This Memorandum Opinion sets forth in further

detail the basis for that ruling.

                              BACKGROUND

     A grand jury charged that in November 2010, Hubbard used a

firearm to rob a Garda Cash Logistics armored truck in

Washington, D.C.   A grand jury returned a two-count indictment

against Hubbard, which charges Hubbard with one count of

interference with interstate commerce by robbery, in violation of

18 U.S.C. § 1951, and one count of using, carrying, and

possessing a firearm during a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A).

     In February 2013, Magistrate Judge Alan Kay arraigned

Hubbard.   At the arraignment, the government orally moved that

Hubbard be temporarily detained
                               - 2 -

     pursuant to: 18 U.S.C. § 3142(f)(1)(A), as he [has]
     been charged with a crime of violence; 18 U.S.C.
     § 3142(f)(1)(D), as he has two prior convictions for
     crimes of violence; and 18 U.S.C. § 3142(d)(1)(A), as
     he is on supervised release in case 2008-CF1-198
     (Attempted Second Degree Child Sex Abuse), and parole
     in case 1997-FEL-5744 (Armed Robbery, Possession of a
     Firearm During a Violent Offense, and Unlawful Use of
     an Automobile).

Govt.’s Opp’n to Def.’s Mot. to Modify Release Conditions & Mem.

of P. & A. in Supp. Thereof (“Govt.’s Opp’n”) at 1.   Magistrate

Judge Kay granted the government’s motion and set a detention

hearing.   Magistrate Judge John Facciola presided over the

detention hearing and granted the government’s oral motion to

detain Hubbard pending trial and denied Hubbard’s oral motion to

be released pending trial.   On March 12, 2013, Magistrate Judge

Facciola issued a detention memorandum explaining that he

detained Hubbard pending trial because he found that “there is

clear and convincing evidence that defendant’s release on any

condition or combination of conditions will not reasonably assure

the safety of the community and his detention is, therefore,

appropriate.”   Detention Mem. entered Mar. 12, 2013 (“Detention

Mem.”) at 2.

     Hubbard moved for a district court judge to review

Magistrate Judge Facciola’s detention memorandum and “permit his

release on high intensity supervision, [to a] halfway house, or

[on his own] personal recognizance.”   Mot. to Modify Release

Conditions (“Def.’s Mot.”) at 1.   The government opposed.    On
                               - 3 -

July 17, 2013, a hearing was held to consider Hubbard’s motion.

At the hearing, the findings of fact and conclusions of law in

the magistrate judge’s order were adopted and Hubbard’s motion

was denied because it was found that there is no condition or

combination of conditions that could reasonably assure the safety

of the community or Hubbard’s presence at trial.

                            DISCUSSION

     “In our society liberty is the norm, and detention prior to

trial or without trial is the carefully limited exception.”

United States v. Salerno, 481 U.S. 739, 755 (1987).   “The Bail

Reform Act of 1984 sets forth the limited circumstances in which

a defendant may be detained before trial despite the presumption

in favor of liberty.”   United States v. Hanson, 613 F. Supp. 2d

85, 87-88 (D.D.C. 2009).   Under the Act, a judicial officer

“‘shall order’” the detention of a defendant before trial if,

after a hearing, the judicial officer “finds by clear and

convincing evidence that ‘no condition or combination of

conditions will reasonably assure . . . the safety of any other

person and the community.’”1   Hanson, 613 F. Supp. 2d at 88

(alteration in original) (quoting 18 U.S.C. § 3142(e)); see also

United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987).     A


     1
       Clear and convincing evidence “requires the trier of fact,
in viewing each party’s pile of evidence, to reach a firm
conviction of the truth on the evidence about which he or she is
certain.” United States v. Montague, 40 F.3d 1251, 1255 (D.C.
Cir. 1994).
                              - 4 -

judicial officer must also order pretrial detention if he finds

by a “preponderance of the evidence that no condition or

combination of conditions will reasonably assure the appearance

of the defendant in court as required.”2   Hanson, 613 F. Supp. 2d

at 88; see also 18 U.S.C. § 3142(e)(1); Simpkins, 826 F.2d at 96.

     In making these determinations, a judicial officer must

consider:

     (1) the nature and circumstances of the offense
     charged, including whether the offense is a crime of
     violence,[3] a violation of section 1591, a Federal
     crime of terrorism, or involves a minor victim or a
     controlled substance, firearm, explosive, or
     destructive device;
     (2) the weight of the evidence against the person;
     (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, and record
     concerning appearance at court proceedings; and
          (B) whether, at the time of the current offense or
     arrest, the person was on probation, on parole, or on
     other release pending trial, sentencing, appeal, or


     2
       Preponderance of the evidence is “evidence which as a
whole shows that the fact sought to be proved is more probable
than not.” Montague, 40 F.3d 1251 at 1255 (internal quotation
marks omitted).
     3
       A crime of violence means:
     (A) an offense that has as an element of the offense
     the use, attempted use, or threatened use of physical
     force against the person or property of another; [or]
     (B) any other offense that is a felony and that, by its
     nature, involves a substantial risk that physical force
     against the person or property of another may be used
     in the course of committing the offense[.]
18 U.S.C. § 3156(a)(4).
                                - 5 -

     completion of sentence for an offense under Federal,
     State, or local law; and
     (4) the nature and seriousness of the danger to any
     person or the community that would be posed by the
     person’s release.

18 U.S.C. § 3142(g)(1)-(4).

     “Ordinarily, the government bears the burden of

demonstrating the appropriateness of pretrial detention[.]”

United States v. Jones, Criminal Action No. 05-386 (ESH), 2013 WL

1611473, at *2 (D.D.C. Apr. 16, 2013) (citing 18 U.S.C.

§ 3142(f)(2)).   However, where “the judicial officer finds that

there is probable cause to believe that the person committed

. . . an offense under section 924(c),” it is presumed that no

condition or combination of conditions would be sufficient to

reasonably assure the defendant’s appearance and the community’s

safety.   18 U.S.C. § 3142(e)(3)(B).    “An indictment returned by a

duly constituted grand jury conclusively establishes the

existence of probable cause for the purpose of triggering the

rebuttable presumptions set forth in § 3142(e).”    United States

v. English, 629 F.3d 311, 319 (2d Cir. 2011) (internal quotation

marks omitted); see also United States v. Parker, 517 F. Supp. 2d

375, 376 (D.D.C. 2007); United States v. Diaz, Criminal Action

No. 10-323-11 (ESH), 2011 WL 31131, at *1 (D.D.C. Jan. 4, 2011).

The defendant may rebut this presumption by offering “credible

evidence” to the contrary.    United States v. Alatishe, 768 F.2d

364, 371 (D.C. Cir. 1985).
                               - 6 -

     Under 18 U.S.C. § 3145(b), “a person [who] is ordered

detained by a magistrate judge . . . may file, with the court

having original jurisdiction over the offense, a motion for

revocation or amendment of the order.”   18 U.S.C. § 3145(b).

     A motion under 18 U.S.C. § 3145(b) for review of a
     magistrate judge’s detention order requires the Court
     promptly to examine de novo whether there are
     conditions of release that will reasonably assure the
     safety of any other person and the community. “The
     Court is free to use in its analysis any evidence or
     reasons relied on by the magistrate judge, but it may
     also hear additional evidence and rely on its own
     reasons.”

United States v. Sheffield, 799 F. Supp. 2d 18, 19-20 (D.D.C.

2011) (quoting Hanson, 613 F. Supp. 2d at 88); accord United

States v. Hitselberger, 909 F. Supp. 2d 4, 7 (D.D.C. 2012).

     Here, a grand jury charged Hubbard with using, carrying, and

possessing a firearm during a crime of violence in violation of

18 U.S.C. § 924(c).   That established probable cause to believe

that Hubbard violated § 924(c) and triggered a rebuttable

presumption that no condition or combination of conditions would

be sufficient to reasonably assure Hubbard’s appearance at trial

and the community’s safety.   See 18 U.S.C. § 3142(e).

     Moreover, the government has provided clear and convincing

evidence that Hubbard poses a danger to the community.   First, a

grand jury charged Hubbard with a crime of violence: interference

with interstate commerce by robbery.   See id. § 1951.   Second,

the government’s evidence against Hubbard appears weighty,
                                 - 7 -

including testimony from one of Hubbard’s co-defendants that

Hubbard was one of the men who robbed the armored truck, and cell

site data placing Hubbard near the scene of the robbery around

the time that the armored truck was robbed.    Detention Mem. at 4.

Third, Hubbard’s history and characteristics weigh in favor of

detaining Hubbard pretrial.   Hubbard tested positive for drugs

twice shortly before he was arrested.    Id.   Additionally, Hubbard

has numerous previous convictions including for armed robbery,

possession of a firearm during a violent or dangerous offense,

and unauthorized use of an automobile in 1997 and attempted

second degree child sex abuse in 2008.    At the time Hubbard

allegedly robbed the armored truck, he was on supervised release

for the 2008 conviction.   Id.

     Hubbard cites several factors that he argues favor his

release pending trial.   He has substantial local family ties

including sick family members for whom he provides care and three

children, two of whom live with him.     Detention Mem. at 3; see

also Def.’s Mot. ¶¶ 3-4.   Hubbard also was employed before he was

arrested.   Detention Mem. at 3; Def.’s Mot. ¶ 2.   With the

exception of the two recent positive drug tests, he has been

compliant with the terms of his supervised release that he is

serving for his 2008 conviction.    Def.’s Mot. ¶ 5.   Hubbard

argues that he is presumed innocent and the charged events

occurred in November 2010 “long before Mr. Hubbard had
                               - 8 -

established himself with employment and [as] a model citizen

under the law.”   Id. ¶ 6.

     Although Hubbard’s ties to the Washington, D.C. area may

weigh against his being a flight risk, Hubbard has failed to

provide persuasive evidence that, if released, he would not pose

a danger to the community.   Accordingly, Hubbard has not rebutted

the statutory presumption that there is no condition or set of

conditions that will reasonably assure the safety of the

community.

                             CONCLUSION

     Because there is probable cause to believe that Hubbard

violated 18 U.S.C. § 924(c), there is a presumption that Hubbard

should be detained pending trial.   Hubbard failed to rebut that

presumption.   Accordingly, his motion [17] to modify his release

conditions was denied.

     SIGNED this 26th day of August, 2013.



                                       /s/
                                RICHARD W. ROBERTS
                                Chief Judge
