Free Order of Detention - District Court of Colorado - Colorado

Case 1:01-cr-00229-EWN

Document 79

Filed 05/15/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Case No. 01-cr-00229-EWN UNITED STATES OF AMERICA, Plaintiff, v. PENNY MARIE WINDSOR, Defendant. ______________________________________________________________________________ ORDER OF DETENTION ______________________________________________________________________________ THIS MATTER came before me for a detention hearing on May 15, 2006. I have reviewed the case file, received evidence and proffers, and heard the arguments of counsel. Rule 32.1(6), Fed. R. Crim. P., governs the issue of detention where a person has been arrested for violating probation or supervised release. The Rule provides that the person must be taken without unnecessary delay before a magistrate judge who, among other things, must make a determination of detention as follows: The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person. Fed. R. Crim. P. 32.1(6) (emphasis added). Section 3143(a), 18 U.S.C., provides: (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of a sentence, other than a

Case 1:01-cr-00229-EWN

Document 79

Filed 05/15/2006

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person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c). (2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and is awaiting imposition or execution of sentence be detained unless-(A)(i) the judicial officer finds there is a substantial likelihood that a motion for acquittal or new trial will be granted; or (ii) an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person; and (B) the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to any other person or the community. (Emphasis added.) In making my findings of fact, I have taken judicial notice of the information contained in the court file, considered the evidence presented, and heard the arguments of counsel. Weighing the factors applicable under Rule 32.1(6), I find the following: The defendant waived her right to a preliminary hearing, thus conceding the existence of probable cause to believe that she committed the violations charged in the Petition on Supervised Release. The defendant has failed to establish by clear and convincing evidence that she will not flee. Specifically, the evidence establishes that the defendant absconded from supervision, failed

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Case 1:01-cr-00229-EWN

Document 79

Filed 05/15/2006

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to reside at the place ordered, failed to report to her probation officer when directed to do so, and gave a false name when contacted by a United Stated deputy marshal. After considering all appropriate factors, I conclude that the defendant has failed to establish by clear and convincing evidence that she will not flee. IT IS ORDERED that the defendant is committed to the custody of the Attorney General or his designated representative for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and IT IS FURTHER ORDERED that the defendant is to be afforded a reasonable opportunity to consult confidentially with defense counsel; and IT IS FURTHER ORDERED that upon order of this Court or on request of an attorney for the United States, the person in charge of the corrections facility shall deliver defendant to the United States Marshal for the purpose of an appearance in connection with this proceedings. Dated May 15, 2006. BY THE COURT: s/ Boyd N. Boland United States Magistrate Judge

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