                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 4 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 03-4264
                                                  (D.C. No. 2:03-CR-321-TS)
    JOSEPH B. KELSEY,                                     (D. Utah)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.



         Defendant-appellant Joseph Kelsey appeals from the district court’s denial

of release on bail pending trial. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3145(c), and we affirm.

         Mr. Kelsey is charged in an indictment with violating 21 U.S.C. § 841(a)(1)

and § 841(b)(1)(b) of the Controlled Substances Act by possessing five grams or

more of methamphetamine with intent to distribute, and with violating 18 U.S.C.



*
      This order and judgment is not binding precedent, except under the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.
§ 922(g)(1) by being a felon in possession of a firearm and ammunition. He has

been detained since April 2003.

       “Under the Bail Reform Act, a defendant may be detained pending trial

only if a judicial officer 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);         id. § 3142(b),(c).”

United States v. Cisneros , 328 F.3d 610, 616 (10th Cir. 2003). The government

“must prove dangerousness to any other person or to the community by clear and

convincing evidence.”     Id. Danger to the community encompasses the danger that

a defendant will continue to engage in felony drug trafficking activity.      United

States v. Cook , 880 F.2d 1158, 1161 (10th Cir. 1989).

       In June 2003, a magistrate judge denied Mr. Kelsey’s request for release on

bail after conducting a detention hearing. Mr. Kelsey appealed to the district

court, which redetermined the issue     de novo after holding another bail hearing on

August 13. See 18 U.S.C. § 3145(b); Cisneros , 328 F.3d at 616 n.1. At the

hearing, the United States presented evidence that (1) Mr. Kelsey had a 1992

felony conviction for using or carrying a firearm during a drug trafficking crime;     1




1
      In the early 1990s, Mr. Kelsey was convicted on three counts of possession
with intent to distribute controlled substances and on one count of carrying a
firearm during and in relation to a drug-trafficking offense after a jury trial.
United States v. Kelsey , 951 F.2d 1196, 1197 (10th Cir. 1991). We reversed his
                                                                        (continued...)

                                             2
(2) in February 2003, he was arrested while in possession of approximately 24.7

grams of methamphetamine packaged in fourteen baggies, packaging materials,

scales, and $744 in cash, resulting in a felony drug-trafficking indictment; and a

handgun was found under the seat of the car in which he arrived immediately

before his arrest; (3) he was released on bail; (4) in April 2003 he was again

arrested in possession of a baggie containing methamphetamine; marijuana and a

marijuana pipe were discovered in a drawer in his bedroom; and a box for the

same make, model, and serial number of the firearm confiscated during his

February arrest was discovered in his bedroom closet; and (5) a blood sample

taken after his February arrest demonstrated a toxic level of methamphetamine in

Mr. Kelsey’s blood. The government argued that this evidence supported a

conclusion that Mr. Kelsey could not stay away from drugs and that he was a

danger to the community.

      Mr. Kelsey presented four witnesses who testified that they had never seen

him use or possess drugs; that they did not consider him a danger to the



1
 (...continued)
convictions on the basis of a Miranda violation. Id. Mr. Kelsey possessed
cocaine when he was arrested, see id. , and he subsequently pleaded guilty to only
the firearms count through a plea bargain.  United States v. Kelsey , 15 F. 3d 152,
153 (10th Cir. 1994). We upheld that conviction on appeal, concluding that his
guilty plea included admitting to committing an underlying drug trafficking crime
even though the underlying drug charges had been dismissed as part of the plea
bargain. Id.

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community; that his mother was willing to allow him to move in with her so she

could “keep an eye on him,” App. Ex. 15 at 30; and that he is a self-employed,

successful, and conscientious carpenter with strong family ties to the community.

Counsel for Mr. Kelsey argued that all evidence procured in the February and

April arrests should be excluded under the Fourth Amendment and that the

pretrial services report stated that, based on his prior criminal record, Mr. Kelsey

was “a manageable risk of danger to the community . . . .”   Id. Ex. 3 at 3.

      After reviewing the evidence in light of the requirements found in

§ 3142(g), the district court concluded that the government had shown by clear

and convincing evidence that no conditions of release existed that would

reasonably assure the safety of other persons or the community. The court also

concluded that “the fact that Defendant appears to have been able to hide his

apparent drug activities from those close to him makes him a danger to society.”

App. Ex. 17 at 2-3. The district court denied the appeal of the magistrate judge’s

detention order and ordered continuing detention.

      “We apply de novo review to mixed questions of law and fact concerning

the detention or release decision, but we accept the district court’s findings of

historical fact which support that decision unless they are clearly erroneous.”

Cisneros , 328 F.3d at 613. We conclude that the government provided clear and

convincing evidence that Mr. Kelsey has demonstrated an inability to stay away


                                            4
from drugs and drug-related activity, thereby making him a danger to society.

The district court’s finding that Mr. Kelsey’s proven ability to hide his drug

activity from his closest friends and family members makes it unlikely that his

mother’s supervision could reduce the risk that he would continue to possess or to

distribute drugs in the community if released on bail is not clearly erroneous.

Because the government satisfied its statutory burden to support continued

detention, we AFFIRM.



                                                    ENTERED FOR THE COURT
                                                    PER CURIAM




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