Opinion
No. 2:17-CR-0209-KJM
07-06-2018
UNITED STATES OF AMERICA, Plaintiff, v. RODNEY FLUCAS, Defendant.
ORDER
Having considered defendant's oral motion for release pending sentencing, made on July 2, 2018 and brought presumably under 18 U.S.C. §§ 3143 or 3145(b) or both, the court resolves the motion as follows:
To the extent the motion is based on the change of circumstances following the recently concluded jury trial, the court finds that the mistrial on Counts 1, 2 and 3 does not constitute changed circumstances warranting a reopening of detention proceedings. See 18 U.S.C. § 3145(b); see also 18 U.S.C. § 3142(f) (detention hearing may be reopened only if the court finds "information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person"); United States v. Ward, 63 F. Supp. 2d 1203, 1206 (C.D. Cal. 1999) (collecting cases; emphasizing "Courts have interpreted this provision strictly"); United States v. Baize, No. 1:13CR296-1, 2013 WL 6532704, at *3 (M.D. N.C. Dec. 12, 2013) ("to the extent the occurrence of two mistrials qualifies as new information, said events do not materially impact the Court's determinations regarding risk of danger to the community and of nonappearance.").
Even if the detention hearing were reopened, defendant's conviction on Count 4 for Attempted Witness Tampering under 18 U.S.C. § 1512(b)(2)(B), supports his continuing detention given that the court cannot find, on the present record, that by clear and convincing evidence defendant is not likely to flee or pose a danger to the safety of any other person or the community. 18 U.S.C. § 3143(a)(1) .
Defendant's motion is DENIED.
IT IS SO ORDERED. DATED: July 6, 2018.
/s/_________
UNITED STATES DISTRICT JUDGE
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 sentence, other than a 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).18 U.S.C. § 3143(a)(1).