UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 20-cr-09-JD Opinion No.

Hallett Merrick

O R D E R

Defendant Hallett Merrick moves (doc. no. 23) for review

and revocation of the magistrate judge’s order detaining him

without bail under

(b). The government opposes

pretrial release.

Standard of Review

Under

(b), the court conducts a de novo

review of the record to decide whether to maintain detention or

release a defendant. See United States v. Tortora,

, 883 n.4 (1st Cir. 1990). The court must state in writing

the reasons for the decision on review.

.

The court shall order pretrial detention if it “finds that

no condition or combination of conditions will reasonably assure

the appearance of [the defendant] as required and the safety of

any other person and the community.”

(e). In

making that determination, the court considers the factors provided in § 3142(g). These factors are the nature and

circumstances of the charged offense, including whether it

involves a controlled substance or firearm, the weight of the

evidence against the defendant, the history and characteristics

of the defendant, and the nature and seriousness of the danger

to any person or the community that would be posed by the

defendant’s release. § 3142(g)(1)-(4). Ultimately, to support

detention, the government must prove by clear and convincing

evidence that the defendant poses a danger to the community or

prove by a preponderance of the evidence that the defendant is a

flight risk. United States v. Patriarca,

(1st Cir. 1991).

In certain circumstances, a presumption arises that no

condition or combination of conditions will reasonably assure

the appearance of a defendant and the safety of the community.

§ 3142(e). As relevant to this case, the presumption arises if

there is probable cause to believe the defendant committed “an

offense for which a maximum term of imprisonment of ten years or

more is prescribed in the Controlled Substances Act.”

§ 3142(e)(3)(A).

When a presumption under § 3142(e) applies, the defendant

need only produce “some evidence” to rebut it. United States v.

Dillon,

(1st Cir. 1991). “When a defendant

produces such evidence, however, the presumption does not

2 disappear. The burden of persuasion remains on the government

and the rebutted presumption retains evidentiary weight.”

.

Background

The court has reviewed the indictment, the transcript

of the bail hearing before the magistrate judge, the

pretrial services report prepared by the Probation Officer,

the magistrate judge’s detention order, and the parties’

briefs.1 In addition, the court held a detention review

hearing by video conference on July 30, 2020. Merrick,

counsel for Merrick, and counsel for the government

attended.

A. Charges & Initial Bail Hearing Before Magistrate Judge

Merrick was initially indicted on January 22, 2020. The

grand jury returned a superseding indictment on July 8, 2020.

In the superseding indictment, Merrick is charged with

possession with intent to distribute controlled substances, in

violation of

(a) and (b)(1)(C) (Count 1),

1 The court has also considered the “Status Report” (doc. 31) filed by Merrick’s counsel, which retracts certain statements made during the initial bail hearing and in the motion for review of the detention order.

3 possession of a firearm in furtherance of a drug trafficking

crime, in violation of

(c)(1)(A) (Count 2), and

possession of a firearm having previously been convicted of

felony offense, in violation of

(g)(1) (Count 3).

Merrick made his initial appearance on January 30, 2020, and

stipulated to detention. In May, Merrick requested a bail

hearing, which the magistrate judge held on May 22, 2020, by

video conference. The magistrate judge ordered Merrick to be

detained pending trial.

A United States Probation Officer prepared a pretrial

services report containing the following information for the

bail hearing. Merrick is thirty-three years old. At the time

of his arrest, he resided in White River Junction, Vermont.

Merrick’s criminal history begins at age eighteen, in 2005, when

he was charged with conspiracy to traffic opium and conspiracy

to sell or deliver Oxycontin in North Carolina. Through the

present, Merrick has been charged and convicted of various

burglary and drug-related offenses, which have resulted in

several terms of incarceration. Merrick has also repeatedly

violated terms of probation and failed to appear in court when

required.

The Report details Merrick’s struggles with substance

abuse, including use of alcohol, cocaine, heroin, and fentanyl.

The Report also notes Merrick’s mental health status, which

4 includes a diagnoses of post traumatic stress disorder, anxiety,

and, potentially, bipolar disorder.

Based on the history and information collected, the

Probation Officer determined that Merrick presents a risk of not

appearing for trial because of his criminal history, including

his record of failing to appear, defaulting, and being a

fugitive from justice. The Probation Officer also determined

that Merrick poses a risk of danger to the community because of

the nature of the offense, his criminal history, his substance

abuse history, his mental health history, and repeated

noncompliance with probation. The Report recommended that

Merrick be detained.

B. Initial Bail Hearing

At the initial bail hearing before the magistrate judge,

Merrick requested release to the Phoenix House to receive

substance abuse treatment. The government opposed Merrick’s

release.

The government proffered the facts underlying the case.

During an arrest, a search of Merrick uncovered six grams of

fentanyl “packaged for distribution,” $4,000 in cash, and a

firearm. Doc. 17 (Bail Hearing Tr.) at 11.2 The government

2 The arrest resulted from an outstanding warrant for a state offense. Doc. 17 at 12.

5 noted that Merrick has previously been convicted of a felony.3

The government theorized that Merrick was selling drugs but was

providing his customers smaller quantities than promised or

typical – i.e., “shorting” the customers. The government

suggested that Merrick was carrying a firearm for protection

during those sales.

Merrick responded that the weight of the evidence was weak

and did not support the government’s drug distribution case.

Merrick argued that the drugs found were for personal

consumption, pointing to the “fairly modest quantity” of drugs

found. Id. at 22. Merrick dismissed the government’s theory

that Merrick was “shorting” customers as speculative.

The government argued that Merrick has a lengthy and

serious criminal history including crimes such as burglaries.

The government noted that Merrick’s history also includes

failures to appear “nearly every time” Merrick has been charged,

as well as probation violations. Id. at 14. Merrick

acknowledged that his criminal history is serious but asserted

that he does not have an atypical criminal history for a person

with longstanding and unresolved substance abuse issues.

3 At the time of the initial bail hearing, Merrick had not yet been charged with possession of a firearm by a person convicted of a felony offense. That charge was added as Count 3 in the July 8, 2020, superseding indictment.

6 Merrick contended that substance abuse is the root cause of his

criminal history. Accordingly, Merrick asserted that release to

a substance abuse treatment program was appropriate.

The government argued that Merrick has no ties to New

Hampshire and a sporadic work history. The government stated

that the Phoenix House is not a secure facility, so there would

be no guarantee that Merrick would not simply walk away.

Merrick responded that his lack of ties to New Hampshire were

not critical to the analysis because he has strong ties to the

neighboring New England states of Massachusetts and Vermont.

Merrick contended that there was no evidence that he would

abscond if released to the substance abuse treatment program.

After the parties presented their arguments, the magistrate

judge reviewed each of the factors under § 3142(g). She noted,

without objection from Merrick, that the court would begin with

a rebuttable presumption that there are no conditions that could

be fashioned to address Merrick’s risk of flight and

dangerousness. See

(e)(3)(A) (“Subject to

rebuttal by the person, it shall be presumed that no condition

or combination of conditions will reasonably assure the

appearance of the person as required and the safety of the

community if the judicial officer finds that there is probable

cause to believe that the person committed,” among other

offenses, “an offense for which a maximum term of imprisonment

7 of ten years or more is prescribed in the Controlled Substances

Act”); doc. 15 (Order of Detention Pending Trial) at 3

(identifying the legal basis for and explaining the scope of the

presumption).

As to the weight of the evidence, the magistrate judge

concluded that the evidence as proffered by the government could

lead to a conclusion that Merrick was involved in the

distribution of controlled substances. As to Merrick’s history,

the magistrate judge acknowledged Merrick’s efforts to attempt

substance abuse treatment, but noted Merrick’s “lengthy history”

of defaults, failures to appear, violations of probation, and

“multiple fugitive from justice charges.” Doc. 17 at 51. The

magistrate judge concluded that Merrick “demonstrate[d] a

history of noncompliance with court orders and also a history of

failing to appear.”

The magistrate judge stated that she

was not persuaded that Merrick’s behavior would be different in

this case.

The magistrate judge acknowledged Merrick’s ties to New

England, but stated a concern about the “flux” in his residences

and difficulties in maintaining contact with Merrick, which was

exemplified by his most recent failure to appear resulting from

an inability to identify Merrick’s current address. Id. at 53.

The magistrate judge also noted that Merrick’s employment

history was sporadic and unverified and that Merrick’s mental

8 health issues raised concerns for the court as to risk of

flight. Lastly, as to whether Merrick presents a danger to the

community if released, the magistrate judge stated that the

facts of the case – Merrick’s possession of controlled

substances and his possession of a firearm – raised concerns

about the community’s safety.

After reviewing the § 3142(g) factors, the magistrate judge

found that the government met its burden to show by a

preponderance of the evidence that there is no condition or

combination of conditions that would reasonably assure Merrick’s

appearance. The magistrate judge also found that the government

proved by clear and convincing evidence that there was no

condition or combination of conditions for release that would

reasonably assure the safety of the community. Accordingly, the

magistrate judge ordered Merrick detained pending trial.

C. Detention Review Hearing

Merrick subsequently filed a motion for review of his

detention status, which is now before the court. Doc. 23. The

court held a detention review hearing on Merrick’s motion by

video conference on July 30, 2020.

At the hearing, Merrick requested that the court

temporarily detain Merrick until a bed was available at an

inpatient substance abuse treatment program. Merrick asserted

9 that a bed would become available as one was before during the

initial bail hearing before the magistrate judge. Merrick

reiterated his argument from the initial bail hearing that his

criminal record stems from severe substance abuse issues, that

he has substantial ties to New England, and that he is highly

motivated to address his substance abuse problem through

inpatient treatment.

In addition, Merrick argued that he was not a danger to the

community because he was arrested with only a small quantity of

controlled substances. He asserted that he has no prior

firearms, drug distribution, crime of violence, or sexual

assault convictions. Merrick maintained that the drugs found

during his arrest were for his personal use, and he noted that,

under the applicable standard, only reasonable assurances of the

defendant’s appearance and the safety of the community are

necessary to mandate bail.

In response, the government reiterated its theory that

Merrick was “shorting” customers. The government also pointed

to the large amount of cash found on Merrick and the firearm as

evidence supporting the controlled substance distribution

charge. As to Merrick’s history, the government also reiterated

that it was rife with defaults, probation violations, and

failures to appear, even when the ultimate disposition of a case

was dismissal. The government did not dispute that Merrick’s

10 substance abuse problems were a cause of his criminal record,

but it stated that his history of failures to appear and

inability to comply rendered a rehabilitative model unsuitable.

After the parties completed their arguments, the court took the

matter under advisement.

Discussion

Merrick asks the court to review his detention under

§ 3145(b) and release him to the custody of an inpatient drug

rehabilitation facility. The government contends that Merrick’s

detention is necessary because he poses a flight risk and a

danger to the community. It argues that all the § 3142(g)

factors weigh in favor of detention.

A. Nature and Circumstances of Charged Offense

Merrick is charged with three offenses: possession with

intent to distribute fentanyl (Count 1), possession of a firearm

in furtherance of that drug trafficking crime (Count 2), and

possession of a firearm having been convicted of a felony

offense (Count 3).4 Congress has unequivocally determined that

charges which involve drugs and firearms are serious and present

the highest risk of danger to the community. See United States

4 Count 3 was added in a superseding indictment after the initial detention hearing held by the magistrate judge.

11 v. Perez,

, at *2 (D. Mass. Apr. 22, 2020) (“The

Bail Reform Act requires the court to expressly consider whether

the offense charged involved, among other things, a controlled

substance or a firearm. Here, the offenses charged involved

both guns and drugs. . . . Hence, the first factor supports

detention.”); United States v. Rodriguez-Romero,

(D.P.R. 2014) (“In the case at bar, Defendant is

charged with possession of narcotics with the intent to

distribute, possession of a firearm in furtherance of a drug

trafficking crime, and possession of a firearm by a prohibited

person, charges which are all unquestionably quite serious and

violent in nature.”). Therefore, this first factor weighs in

favor of detention.

B. Weight of the Evidence

The weight of the evidence also favors detention. As to

Count 1, possession with intent to distribute a controlled

substance, the weight of the government’s evidence is

considerable. Merrick argues that the relatively small quantity

of drugs that were found on him undercuts the government’s

position that they were intended for distribution. The

government explains the small quantity of drugs by theorizing

that Merrick was shorting customers and carrying a firearm for

protection if the scheme was discovered.

12 Even if, as Merrick contends, the government’s explanation

for the quantity of drugs is speculative, there is substantial

evidence – all discovered on Merrick during or shortly after his

arrest – that Merrick was engaged in drug distribution. The

evidence includes the large quantity of individual packages in

which the drugs were found, the large amount of cash Merrick was

holding, and the firearm. This same evidence supports the

government’s charge that Merrick possessed a firearm in

furtherance of a drug trafficking crime (Count 2).

As to Count 3, possession of a firearm by a prohibited

person, the government has proffered that Merrick had a firearm

on him at the time he was arrested, and Merrick has not disputed

that he has been convicted of a felony offense. Merrick did not

offer a substantial argument against the weight of the evidence

as to possession of a firearm by a prohibited person at the

detention review hearing.

Merrick contends that the magistrate judge erred in her

analysis of the weight of the evidence by ruling that “such

weighing is unnecessary at the detention stage.” Doc. 23 at 5.

As a threshold matter, whether the magistrate judge erred as to

her application of the § 3142(g) factors is immaterial because

the court reviews the magistrate judge’s decision and applies

the § 3142(g) factors de novo.

13 Nevertheless, the magistrate judge’s analysis was correct,

and the court finds her discussion about the weight of the

evidence against Merrick persuasive. At the outset of her oral

ruling at the initial bail hearing, the magistrate judge stated

that she “want[ed] to stress for [Merrick] again that the

purpose of today’s proceedings is not for the Court to make an

assessment or conduct any kind of analysis about the likely

outcome of this – the pending charges. I’m not charged with

making any findings as they relate to your guilt or innocence.

I’m to presume that [the] presumption of innocence doesn’t go

away. What I’m charged with doing is assessing whether or not

. . . there is a condition or whether there are a combination of

conditions that will reasonably assure your appearance at future

court proceedings.” Doc. 17 at 43. Later, when specifically

addressing the weight of the evidence, the magistrate judge

acknowledged that Merrick might be able to convince a jury that

the government has not met its burden to prove his guilt. See

id. at 47-48. The magistrate judge explained that,

nevertheless, “for the purposes of today’s proceeding, I’m not

looking at the weight of the evidence in that fashion. I’m not

deciding whether or not the government’s going to meet its

burden. What I’m looking at is what is it about the weight of

the evidence as the government has shared it with me that could

14 raise concerns for the Court about risk of flight or

dangerousness.” Id. at 48.

As the magistrate judge correctly observed, when evaluating

the “weight of the evidence,” the court does not make a

determination of the defendant’s guilt or innocence, but rather

asks whether the evidence against the defendant, as proffered by

the parties, is so strong that it could lead the defendant to

flee. See

(j) (“Nothing in this section shall

be construed as modifying or limiting the presumption of

innocence.”); United States v. Torres-Rosario,

(D.P.R. 2009) (“[N]umerous courts have recognized that

the seriousness of the charge and the weight of the evidence can

create a strong incentive for a defendant’s flight.”). Indeed,

the magistrate judge’s statements about the standard at the bail

hearing were consistent with Merrick’s position on the standard,

which he stated as follows: “[O]n this issue of the strength of

the case . . . this isn’t a trial. . . . I think the idea is

that the stronger the weight, the greater the risk of running;

maybe the stronger the weight, the greater the danger.” Doc. 17

at 40. Here, as the magistrate judge explained, the weight of

the evidence is strong and guides the court toward an inference

that Merrick’s risk of flight and danger to the community is

significant.

15 C. History and Characteristics of Defendant

Merrick’s criminal history includes a lengthy list of

defaults, failures to appear, and probation violations. In the

past, when Merrick has been on probation in lieu of detention,

he has committed additional crimes, violated the terms of his

probation, and failed to appear in court. Merrick’s assertions

about his substance abuse issues and need for drug

rehabilitation are credible, but the court cannot overlook his

history of failing to appear for court. Therefore, this factor

weighs in favor of detention.

D. Danger to the Community

As noted above, Merrick is charged with a serious drug

offense, with possessing a firearm in furtherance of that

offense, and with possessing a firearm as a prohibited person.

As the magistrate judge found, these circumstances support a

finding that Merrick’s behavior presents a danger to the

community. Doc. 17 at 53-54; see also United States v. Leon,

(2d Cir. 1985) (“[T]he harm to society caused by

narcotics trafficking is encompassed within Congress’ definition

of ‘danger.’”). That finding is bolstered by the presumption of

dangerousness under

(e). Dillon,

(noting that a rebutted presumption of dangerousness under

§ 3142(e) “retains evidentiary weight”).

16 The § 3142(g) factors all weigh against Merrick. The

government has shown by a preponderance of the evidence that

Merrick presents a flight risk and by clear and convincing

evidence that he presents a danger to the community and that

there are no conditions of release from confinement that would

reasonably assure Merrick’s presence for trial and the

community’s safety.

Conclusion

For the foregoing reasons, Merrick’s motion for bail (doc.

no. 23) is denied.

SO ORDERED.

__________________________ Joseph A. DiClerico, Jr. United States District Judge

August 4, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

17