USA v. Jackson et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
BRIAN JACKSON,
Defendant.
CR. 20-50006-JLV
ORDER
Defendant Brian Jackson is charged with conspiracy to distribute a
controlled substance, methamphetamine. See Docket 1. He made his initial
appearance in this case on February 12, 2020, in front of Magistrate Judge
Daneta Wollmann, who addressed the issue of detention at that time. See
Docket 6. Magistrate Wollmann entered an order that same day finding (1) a
serious risk Mr. Jackson would not appear and (2) a serious risk Mr. Jackson
would endanger the safety of another person or the community if granted
pretrial release and, therefore, ordering the detention of Mr. Jackson pending
trial in this case. (Docket 8 at p. 1). Mr. Jackson, through his attorney, has
since filed five motions for reconsideration of the Magistrate Judge’s detention
order, requesting pretrial release for Mr. Jackson. See Dockets 20, 32, 34, 46
& 50. The Magistrate Judge denied all five of those motions. See Dockets 23,
33, 40, 47 & 51. Now pending is Mr. Jackson’s appeal from the Magistrate
Judge’s latest order denying reconsideration of her detention order, although it
is not termed as such. (Docket 52).
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 1 of 10 PageID #: <pageID>

2
I. Appeal from Order Denying Pretrial Release
A. Facts
This preliminary factual recitation is based on the allegations in the
indictment (Docket 1), information contained in the pretrial services report
(Docket 15), Mr. Jackson’s motions for release (Docket 20, 32, 34, 46 & 50), the
government’s response in opposition to Mr. Jackson’s first motion for release
(Docket 22), an affidavit Mr. Jackson filed in accompaniment with his third
motion for release (Docket 35), Mr. Jackson’s response to a memorandum by
the government opposing Mr. Jackson’s third motion for release (Docket 39)
and Mr. Jackson’s appeal (Docket 52).
Mr. Jackson is charged with conspiracy to distribute 500 grams or more
of a mixture or substance containing methamphetamine. See Docket 1. He
has an extensive record which consists primarily of traffic and drug related
offenses. See Docket 15 at pp. 4-10. Mr. Jackson’s first drug related offense—
possession for sale of a controlled substance—was in California in 1992, and
he has had numerous similar offenses in years since. See id. The pretrial
services report filed in this case notes Mr. Jackson “ha[s] a history of violating
probation and parole.” Id. at p. 10. The report ultimately concludes Mr.
Jackson’s “risk of flight/non-appearance seems minimal” given his ties to
Rapid City, which include that he owns a home and business in town and
resides with family. Id. However, the report also concludes Mr. Jackson’s
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 2 of 10 PageID #: <pageID>

3
“greatest risk to the community involves factors surrounding his
methamphetamine use and alleged distribution.” Id.
Since the pretrial services report was filed, the government proffered
information that, prior to his arrest in this case, “Sources of Information
informed law enforcement that [Mr. Jackson’s] source of methamphetamine
supply is in California and [he] traveled back and forth to California multiple
times to obtain methamphetamine for distribution in South Dakota.” (Docket
22 at p. 3). Law enforcement tracked Mr. Jackson’s vehicle to California during
its investigation, and he remained in California for about two months, which
the government asserts “shows he has extensive ties there.” Id. Additionally,
during the course of investigation, law enforcement monitored Mr. Jackson’s
residence in Rapid City and the government states “agents noted that persons
believed to be involved in distribution and use of methamphetamine reside in
the residence . . . , and . . . multiple persons believed to be involved in
methamphetamine use and distribution were seen coming and going from [the]
home.” Id.
Mr. Jackson “has lived in Rapid City, SD, for 10 years and has lived” in a
residence he owns for eight years. (Docket 15 at pp. 1-2). His daughter and
her son resided with him in his residence prior to his arrest, and they continue
to reside in the home. Id. at p. 2. Since 2011, Mr. Jackson worked at B&R
Drywall in Rapid City, SD, which he co-owns and operates. Id.
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 3 of 10 PageID #: <pageID>

4
While there have been slight variations in Mr. Jackson’s release plans
included in his various motions for pretrial release, most recently, in his
appeal, Mr. Jackson proposes to live with John Pimentel in Mr. Pimentel’s
home in Keystone, SD. (Docket 52 at p. 1). Mr. Jackson represents to the
court that “Mr. Pimentel is now retired, so he is willing to provide around-the-
clock supervision. Mr. Pimentel is also aware of his duty to contact Pretrial
Services should [Mr.] Jackson abscond or violate any conditions of pretrial
release.” Id. Mr. Jackson states he is “not a danger to the community”
because his “criminal history, while not insignificant, consists almost entirely
of drug offenses.” Id. at p. 2. He argues he is “not a flight risk” because he has
“retained counsel,” which indicates his investment in these proceedings, and
he owns a home and business in Rapid City. Id. Furthermore he states he
“continues to need follow-up care for his various medical conditions, including
a stroke he suffered while in custody,” and asserts the “Pennington County Jail
has been unable to meet these needs.” Id. If released, Mr. Jackson intends to
return to work at B&R Drywall. Id.
B. Legal Standard
A person “ordered detained by a magistrate judge . . . may file, with the
court having original jurisdiction over the offense, a motion for revocation or
amendment of the order.” 18 U.S.C. § 3145(b). The district court reviews a
detention order entered by a magistrate judge de novo. See United States v.
Maull, 773 F.2d 1479, 1481 (8th Cir. 1985) (en banc). “To engage in a
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 4 of 10 PageID #: <pageID>

5
meaningful de novo review, the district court must have available the options
open to the magistrate” under the Bail Reform Act, 18 U.S.C. § 3142. Maull,
773 F.2d at 1482 (referencing United States v. Orta, 760 F.2d 887, 890 (8th
Cir. 1987) (en banc)). The district court “shall order the pretrial release of the
person on personal recognizance, or upon execution of an unsecured
appearance bond . . . unless the [court] determines that such release will not
reasonably assure the appearance of the person as required or will endanger
the safety of any other person or the community.” 18 U.S.C. § 3142(b). If the
court determines release upon personal recognizance or an unsecured
appearance bond will not reasonably assure appearance or will endanger the
safety of others, it must next consider whether release on conditions will. See
id. § 3142(c). If so, the court “shall order the pretrial release of the person”
subject to the conditions that the person “not commit a Federal, State, or local
crime during the period of release and . . . cooperate in the collection of a DNA
sample,” if authorized under 42 U.S.C. § 14135a, as well as the “least
restrictive further condition, or combination of conditions.” 18 U.S.C.
§ 3142(c)(1)(A)-(B).
In determining whether release on conditions is appropriate, the court
considers:
(1) the nature and circumstances of the offense charged, including
whether the offense is a crime of violence . . . ;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 5 of 10 PageID #: <pageID>

6
(A) the person’s character, physical and mental condition, family
ties, employment, financial resources, length of residence in
the community, community ties, past conduct, history
relating to drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the
person was on probation, on parole, or on other release
pending trial . . . ; and
(4) the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.
Id. § 3142(g).
However, in certain cases, for example those which involve “an offense for
which a maximum term of imprisonment of ten years or more is prescribed in
the Controlled Substances Act (21 U.S.C. 801 et seq.),” a rebuttable
presumption applies “that no condition or combination of conditions will
reasonably assure the appearance of the person as required and the safety of
the community.” Id. § 3142(e)(3). “In a presumption case . . . a defendant
bears a limited burden of production – not a burden of persuasion – to rebut
that presumption by coming forward with evidence he does not pose a danger
to the community or a risk of flight.” United States v. Abad, 350 F.3d 793, 797
(8th Cir. 2003) (quoting United States v. Mercedes, 254 F.3d 433, 436 (2d Cir.
2001)). “Once a defendant has met his burden of production relating to these
two factors, the presumption favoring detention does not disappear entirely,
but remains a factor to be considered among those weighed by the district
court.” Id.
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 6 of 10 PageID #: <pageID>

7
If the presumption is rebutted, “[a] defendant may be detained before
trial ‘[o]nly if the government shows by clear and convincing evidence that no
release condition or set of conditions will reasonably assure the safety of the
community and by a preponderance of the evidence that no condition or set of
conditions . . . will reasonably assure the defendant’s appearance . . . .’ ” Id.
(quoting United States v. Kisling, 334 F.3d 734, 735 (8th Cir. 2003) (emphasis
in original)).
C. Analysis
Mr. Jackson is charged with an offense to which the rebuttable
presumption applies—specifically, an offense under the Controlled Substances
Act which carries a maximum term of imprisonment of life in prison. See
21 U.S.C. § 841(b)(1)(A)(viii). He bears the burden of production to present
evidence he does not pose a flight risk or danger to the safety of another person
or the community. In determining whether Mr. Jackson produced sufficient
evidence to rebut the presumption of detention, the court looks to the Bail
Reform Act factors. See United States v. Cantu, 935 F.2d 950, 951 (8th Cir.
1991).
i. Nature of the offense charged
The serious nature of the offense charged weighs against a finding that
the detention presumption is rebutted. Mr. Jackson is charged with
conspiracy to distribute a significant amount of methamphetamine—
specifically, 500 grams or more of a mixture or substance containing
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 7 of 10 PageID #: <pageID>

8
methamphetamine—an illegal substance which has wrought substantial
destruction in the greater Rapid City area in recent years.
ii. Weight of the evidence
The weight of the evidence in this case known to the court at this time
also weighs against a finding that the detention presumption is rebutted.
While Mr. Jackson is presumed innocent of the charge against him unless and
until proven otherwise, the government has proffered substantial evidence
against Mr. Jackson even in the relatively minimal briefing that has occurred
in the case so far. It is clear law enforcement conducted significant
investigation of Mr. Jackson prior to his arrest on the charge, which included
monitoring his residence. Investigating agents observed multiple people
believed by law enforcement to be involved in methamphetamine distribution
living in Mr. Jackson’s residence with him, and they observed people frequently
coming and going from the residence whose “behavior . . . appeared to be . . .
indicative of purchasing methamphetamine from [Mr. Jackson’s] home.” See
Docket 22 at p. 3. Law enforcement learned from multiple sources of
information that Mr. Jackson’s source of methamphetamine was in California.
Id. They subsequently tracked Mr. Jackson’s vehicle to California, where he
remained for a couple of months. Id. Upon Mr. Jackson’s return to South
Dakota, law enforcement conducted a traffic stop of Mr. Jackson’s vehicle and
found Mr. Jackson to be “in possession of approximately two pounds of
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 8 of 10 PageID #: <pageID>

9
methamphetamine.” Id. The court finds the weight of the evidence proffered so
far is substantial.
iii. History and characteristics of Mr. Jackson
Mr. Jackson’s history and characteristics also weigh against a finding
that the detention presumption is rebutted. It is true Mr. Jackson has
significant ties to Rapid City. For example, he owns a home and business in
Rapid City, and has resided in Rapid City for a decade. Prior to his arrest, his
daughter and grandson resided with Mr. Jackson in his home, and they have
continued to reside in the home while Mr. Jackson has been in pretrial
detention. Additionally, the court is sympathetic to Mr. Jackson’s apparent
ongoing health issues. On the other hand, as the government notes, Mr.
Jackson clearly retains significant connections to California, where he spent
about two months prior to returning to South Dakota when he was found to be
in possession of two pounds of methamphetamine, clearly a substantial
distribution amount of the substance. As noted in his pretrial services report,
Mr. Jackson has a history of violating probation and parole. His record of
repeated drug-related offenses extending back over several decades shows a
pattern of similar activity by Mr. Jackson with no sign of a commitment by him
to let up. Ultimately, while this factor is certainly a closer call than the
previous two, the court finds it nevertheless weighs against a finding that the
detention presumption is rebutted.
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 9 of 10 PageID #: <pageID>

10
iv. Danger to Any Person or the Community
Finally, as the pretrial services report correctly notes, any threat Mr.
Jackson may pose to another person or the community primarily stems from
his alleged involvement in methamphetamine distribution and, in turn, the
destructiveness of the drug in the lives of individuals who access and use it
and the residual impacts on family and other community members around
those individuals. Even if the likelihood Mr. Jackson would engage in
methamphetamine distribution on pretrial release is diminished by his recent
health concerns and the logistics of his latest release plan to reside with Mr.
Pimentel in Keystone, the court finds, having considered the facts of this case
as they are known at this time and the Bail Reform Act factors, Mr. Jackson
has not produced sufficient evidence that he does not pose a danger to the
community or a risk of flight to rebut the presumption of pretrial detention.
Accordingly, it is
ORDERED that defendant’s appeal from the Magistrate Judge’s order
denying his motion for release (Docket 52) is denied.
Dated August 5, 2021.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
Case 5:20-cr-50006-JLV Document 55 Filed 08/05/21 Page 10 of 10 PageID #: <pageID>