Late last week, the Second Circuit issued a short summary order in United States v. Horton, No. 16-1574, ordering that the District Court vacate its order of detention and remanding for further proceedings. Although it issued just a short summary order, the Circuit clarified that even in “presumption” cases, the government retains the ultimate burden of persuasion on the issue of remand based on a defendant’s dangerousness.
In certain types of cases, Title 18 U.S.C. 3142(e) creates a rebuttable presumption that “no condition or combination of conditions will reasonably assure” the safety of the community. The defendant bears the burden of producing evidence to rebut this presumption. If the defendant does so, the presumption is not eliminated, but it remains a “factor” just like any other factor the district court has to consider and weigh. “At all times,” though, “the government retains the ultimate burden of persuasion by clear and convincing evidence that the defendant presents a danger to the community.” It is not, the Circuit clarified, the defendant’s burden to show by clear and convincing evidence that he should be released. The government always bears the burden.