                          UNITED STATES COURT OF APPEALS
                                      Tenth Circuit
                           Byron White United States Courthouse
                                    1823 Stout Street
                                 Denver, Colorado 80294
                                     (303) 844-3157
Patrick J. Fisher, Jr.                                                          Elisabeth A.Shumaker
Clerk                                                                           Chief Deputy Clerk

                                           May 14, 1997


       TO: All recipients of the captioned order and judgment

       RE: 97-5036
           April 14, 1997


               Please be advised of the following correction to the captioned decision:

              Due to a typographical error, a citation in the decision is incorrect. In the
       last paragraph on page five, § 3182(g) should read § 3142(g).

               Please make the appropriate correction.

                                                     Very truly yours,

                                                     Patrick Fisher, Clerk



                                                     Susie Tidwell
                                                     Deputy Clerk
                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         APR 14 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 97-5036
                                                   (D.C. No. 96-CR-151-H)
    ALAN DALE NUCKOLLS, also                             (N.D. Okla.)
    known as Big Al,

                Defendant-Appellant.




                             ORDER AND JUDGMENT *


Before EBEL, KELLY, and HENRY, Circuit Judges.


         Defendant-appellant Alan Dale Nuckolls seeks review of an order of the

United States District Court for the Northern District of Oklahoma affirming a

pretrial detention order. Mr. Nuckolls has been charged, by indictment, with

conspiracy to distribute narcotics under 21 U.S.C. § 846. The government also

seeks forfeiture under 21 U.S.C. §§ 848 and 853.



*
      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 was detained following a hearing before a magistrate judge on

December 13, 1996. Both the magistrate judge and the district court determined

that there was probable cause to believe that defendant had committed an offense

punishable by a maximum term of ten years or more imprisonment; that defendant

had not rebutted the attendant presumption under 18 U.S.C. § 3142(e) that no

conditions of release would “assure the appearance of the person as required and

the safety of...the community”; and that there was a serious risk that the defendant

would endanger the safety of another person or the community.

      On appeal defendant contends “that the statutory presumption in favor of

detention, and general allegations of danger to the community, especially when

there is evidence to the contrary, is insufficient to order detention.” He also

claims that he has met his burden of production rebutting the presumption. The

government argues that there was no evidence presented from which the court

could conclude that defendant had rebutted the presumption of detention and,

specifically, that defendant did not pose a danger to the community.

      The government’s evidence consisted primarily of the testimony of an

Oklahoma law enforcement officer who described the search of defendant’s

residence from which of drugs, weapons, money, and police scanning devices

were recovered. The only evidence offered in rebuttal consisted of a description

of defendant’s status as a homeowner and tax payer with ties to the community


                                          -2-
and a docket sheet from the state court proceedings indicating defendant had

appeared in court as required for those proceedings.

      This court’s review of detention or release orders is plenary at least as to

mixed questions of law and fact, and independent, with due deference to the trial

court’s purely factual findings. United States v. Stricklin, 932 F.2d 1353, 1355

(10th Cir. 1991) (citation omitted). We have reviewed the parties’ briefs,

including transcripts of the hearings below, and we affirm the district court.

      Once the presumption under 18 U.S.C. § 3142(e) (here, established by the

grand jury indictment and the parties’ agreement that the presumption applies) has

been invoked, the burden of production shifts to the defendant. Although the

burden is not heavy, some evidence must be produced. And, even if the

defendant’s burden is met, the presumption remains a factor for consideration by

the district court in determining whether to release or detain a defendant. Id. at

1354-55. See also United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989)

(citations omitted).

      The court may still consider the finding by Congress that drug offenders

pose a special risk of flight and danger to the community. United States v. Hare,

873 F.2d 796, 798-99 (5th Cir. 1989) (footnote omitted); see also United States v.

Cook, 880 F.2d at 1161 (Committee on Judiciary emphasized that risk a defendant




                                         -3-
will continue to engage in drug trafficking is danger to safety of any other person

or to community).

      Defendant relies heavily on his appearances in connection with the pending

state court proceedings. However, the basis for detention in this case was not the

likelihood of failure to appear, but rather dangerousness to the community. See

United States v. Rueben, 974 F.2d 580, 586 (5th Cir. 1992) (for imposition of

pretrial detention, lack of reasonable assurance of either defendant’s appearance

or safety of community is sufficient; both are not required). Although

government’s evidence of a longstanding drug trafficking operation may not have

been great, defendant presented absolutely no evidence that he would not continue

such trafficking if released pending trial. See id. at 587.

      Defendant also relies on United States v. Jackson, 845 F.2d 1262 (5th Cir.

1988), and United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986), in support

of his claim “that the statutory presumption in favor of detention, and general

allegations of danger to the community, which is what we have here, is

insufficient to order detention.” Appellant’s memorandum brief, p. 4. Neither

case is factually applicable to defendant’s situation. In Jackson, the court

determined that the district court’s pretrial detention order was improperly based

on defendant’s membership in a motorcycle club of dubious reputation. 845 F.2d

at 1264. The court also found that the government had made no serious attempt


                                          -4-
beyond resting on the presumption and the motorcycle club association to support

detention. 845 F.2d at 1265-66. Here, in contrast, the government introduced

evidence of the discovery of drugs, guns, money and police scanning equipment

found at defendant’s residence and testimony that an informant had implicated

defendant in drug sales.

      The court in Dominguez held that the district court’s detention order was

incorrectly based strictly on the application of the presumption, which was error

because the presumption had been preliminarily rebutted, 783 F.2d at 706-07.

Here, the district court considered and rejected defendant’s argument that the

government was relying solely on the statutory presumption.

      The district court did not make particularly detailed or specific findings.

However, defendant did not proffer any evidence designed to counter the factors

supporting the government’s presumption, i.e., the drugs, guns, money, and police

scanning devices. Although the district court’s decision may lack detailed

analysis of the § 3182(g) factors, see, e.g., United States v. Nichols, 897 F. Supp.

542 (W.D. Okla.), aff’d, 61 F.3d 917 (10th Cir. 1995) (table), the findings and

conclusions of the district court and magistrate judge are adequate to support the

pretrial detention determination.




                                         -5-
      Accordingly, the judgment of the United States District Court for the

Northern District of Oklahoma is affirmed. The mandate shall issue forthwith.



                                                   ENTERED FOR THE COURT
                                                   PER CURIAM




                                        -6-
