                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 8 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

v.                                                         No. 05-1029
                                                     (D.C. No. 04-CR-514-N)
JEFFREY JOHNSON,                                            (D. Colo.)

               Defendant-Appellant.



                            ORDER AND JUDGMENT           *




Before MURPHY , O’BRIEN , and TYMKOVICH , Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Defendant Jeffrey Johnson appeals the district court’s order of detention

pending trial. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3145(c), and we affirm.

                                             I.

       On December 16, 2004, an Indictment was returned against defendant and

twenty-nine other individuals. All were charged with conspiracy to distribute and

possess with intent to distribute crack cocaine, in violation of 21 U.S.C. §§ 846

and 841(a)(1), with one count of criminal forfeiture.   1
                                                            Defendant was arrested on

December 16 and he has been in custody since that date. The government moved

for detention at defendant’s first appearance.

       A magistrate judge held a detention hearing on December 27, 2004, and

then ordered defendant released with certain conditions. The government sought

revocation of the magistrate judge’s release order. The district court held its own

detention hearings on January 4 and 5, 2005. The district court determined that

defendant was a flight risk and a danger to the community and that no

combination of conditions would assure his appearance at trial and the safety of

the community.


1
       On January 26, 2005, a 137-count Superseding Indictment was returned.
Defendant is charged in five counts: conspiracy to distribute and possess with
intent to distribute cocaine and cocaine base in Counts 1 and 2; distribution and
possession with intent to distribute cocaine in Count 58; use of the telephone to
facilitate a felony in Count 60; and forfeiture in Count 137.

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                                         II.

      A judicial officer must detain a defendant prior to trial if he or she “finds

that no condition or combination of conditions will reasonably assure the

appearance of the person as required and the safety of any other person and the

community.” 18 U.S.C. § 3142(e). The judicial officer must hold a hearing to

make this determination. Id. § 3142(f). If there is probable cause   to believe that

a defendant committed an offense prescribed by the Controlled Substances Act

that carries a maximum term of imprisonment of over ten years, then a rebuttable

presumption arises that there are no conditions that will reasonably assure the

appearance of the person as required and the safety of any other person and the

community. Id. § 3142(e). The burden of production on the defendant to

overcome the presumption is not a heavy one, but the defendant must produce

some evidence. United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir.

1991) (per curiam). Even if the presumption is overcome, the presumption

remains a factor in the district court’s detention decision. Ultimately, the burden

of persuasion is always on the government. Id.

      We review de novo mixed questions of law and fact concerning the

detention decision. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.

2003). We review the district court’s findings of fact for clear error. Id.




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                                          III.

      Defendant argues that the district court erred by failing to make the

determinations required by the statute. We disagree.     The district court held a

detention hearing and then it made oral and written findings. In this case, the

district court found that the presumption applied because probable cause was

required to charge the defendant in the Indictment and because he was charged

with a crime under the Controlled Substances Act that carries a maximum term of

imprisonment over ten years. Aplt. App., Vol I, Tab H at 40. In its written order,

the district court noted that it had considered the presumption and all of the other

evidence in making its determination concerning detention. Id. The court then

acknowledged its duty to consider the statutory factors to determine whether there

were conditions of release that would reasonably assure the appearance of

defendant as required and the safety of any other person and the community.       Id.

The court recited the relevant factors from 18 U.S.C. § 3142(g) and then it made

specific findings of fact and explained the reasons for detention as required by 18

U.S.C. § 3142(i)(1). Aplt. App., Vol. I, Tab H at 40-44.

      Defendant also challenges three of the district court’s factual findings. He

argues that the district court erred in finding that: 1) he was a danger to the

community; 2) the evidence against him was great; and 3) he was a flight risk.

The district court’s factual findings are supported by the evidence. The district


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court found that defendant was a danger to the community because of his

propensity to engage in acts of violence and because he deals in drugs. This

finding was based on evidence presented at the hearing that defendant was

involved in an incident where he jumped in another man’s car, refused to let him

drive away, and slapped him in the face with a gun. Aplt. App., Vol. I, Tab H at

42-43, Aplt. App., Vol. IV at 84-85; Aplee. Supl. App., Ex. 1A. This finding was

also based on evidence presented at the first detention hearing that the

government had tapes of defendant and another member of the alleged conspiracy

discussing the sale of nine ounces of cocaine that was going to be manufactured

into crack cocaine. Aplt. App., Vol. II at 13-14. This second piece of evidence

also supports the district court’s finding that “[t]he evidence is more than

sufficient to connect the defendant to [the] conspiracy and to sustain a finding of

guilt beyond a reasonable doubt.”    Id. , Vol. I, Tab H at 42-43.

      Finally, on the question of whether defendant was a flight risk, i.e., whether

there was a condition or combination of conditions that could assure defendant’s

appearance, the district court found that defendant “has a record of failing to

appear in just about every court proceeding that he has been involved in.”     Id. at

41. This finding was based on evidence in defendant’s Pretrial Services Report

that in three previous cases he failed to appear four times resulting in significant




                                           -5-
delays in processing those charges. Aplee. Supl. App., PSR at 3-4. The district

court’s factual findings are not clearly erroneous.

       Lastly, defendant asserts that the district court erred in refusing to consider

his proffered evidence. At the hearing on January 5, defendant sought to

introduce evidence from Troy McMillon by way of proffer. The government

objected. Because of the government’s objection and the fact that the witness was

within the jurisdiction of the court and available by subpoena, the district court

did not accept the proffered evidence. Aplt. App. Vol. IV at 52-54. Although the

statute provides that evidence can be presented by proffer,       see 18 U.S.C.

§ 3142(f), it is within the court’s discretion not to accept such evidence.       See

United States v. Gaviria , 828 F.2d 667, 669 (11th Cir. 1987).

       Regardless, the district court stated that even if it were to consider the

proffer, the evidence itself was inadequate. The proffer was a letter by

Mr. McMillon to support defendant’s position that he would be able to obtain

employment if he were released pending trial. The letter states in relevant part,

“[p]lease take into consideration that upon [defendant’s] release I will recommend

him for any open position to work for Advantage Rent A Car.” Aplt. App.,

Vol. I, Tab G at 38. The district court found that the evidence was inadequate

because “[t]he letter writer doesn’t say he’s associated with Advantage Rent-a-

Car, or that he is in a position to recommend or secure a job for defendant.”           Id.,


                                             -6-
Tab H at 44. The district court did not err in refusing to accept this proffered

evidence.

      The district court considered the evidence presented at the hearing in

conjunction with the relevant statutory factors and it made the required factual

findings to support its detention order. The judgment of the district court is

AFFIRMED.


                                                     ENTERED FOR THE COURT
                                                     PER CURIAM




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