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This order and judgment is not binding precedent, except under the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
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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...)
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(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
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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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