U.S. v. Spillan

Full title: UNITED STATES OF AMERICA v. MICHAEL SPILLAN

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Sep 29, 2010

CASE NO. CR2-10-230(1) (S.D. Ohio Sep. 29, 2010)

Opinion

CASE NO. CR2-10-230(1).

September 29, 2010

ORDER

EDMUND SARGUS JR., District Judge

This matter is before the Court on the Government's motion for detention of the Defendant pending trial. The motion is opposed by the Defendant.

Under 18 U.S.C. § 3142(f)(2), the Government bears the burden of establishing that (a) the defendant poses a serious risk of flight, or (b) there is a serious risk that the defendant will obstruct justice. The same section also requires that a judicial officer may not order pretrial detention unless, by clear and convincing evidence, the evidence establishes "no condition or combination of conditions will reasonably assure the safety of any other person and the community."

The Court has also considered the factors set forth in 18 U.S.C. § 3142(g), which include:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including —

(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, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law.

Upon consideration of the above, it is the Order of this Court, as incorporated in this document, together with the terms and conditions of the attached Exhibit A, that:

1. The Defendant shall be incarcerated at his home and shall be restricted to his residence with no exceptions. ¹ He shall be subject at all times to electronic monitoring verifying his presence in the residence. He shall remain incarcerated until a land-line telephone is installed at his residence and the electronic monitoring equipment is operational.

2. Defendant shall not conduct any business, solicit funds, accept monies or properties of any kind from others or otherwise engage in any business transactions by mail, computer, telephone, in-person, or any other means during the term of this Order.

3. Defendant will not use a computer for financial transactions of any kind, including credit-card purchases, loans or payments, or on-line banking or investment transactions.

4. In addition to the restrictions in Paragraph 3, Defendant shall only use a computer under the following conditions:

a). Only one computer will be permitted in the Defendant's residence;

b). The Defendant shall only use the computer between 9:00 a.m. and 11:00 a.m. and between 7:00 p.m. and 9:00 p.m.

c). Every person living in the Defendant's residence who intends to use or does use the computer shall submit to a biometric identification (fingerprinting) and each such person may only use the single computer in the home by presenting the biometric identification upon log-in and on a continuous basis during use of the computer.

d). The pretrial services officer shall cause to be installed on the computer software that will limit Defendant's access to financial sites (banks, credit card companies, stock traders, and other financial institutions) and allow real-time as well as stored observation of websites visited by the Defendant. The pretrial services officer may at any time inspect the computer, software and hardware. This paragraph is intended to restrict the Defendant and subject him to monitoring as to his use of the computer; it is not so intended as to others in his home, provided such persons do not attempt to assist the Defendant in unauthorized use of the computer.

5. The pretrial services officer may at any time inspect the Defendant's incoming or outgoing mail.

6. In addition to these special restrictions, the Defendant is also subject to the terms and conditions set forth in attached Exhibit A.

1 The Defendant will meet with his attorney only upon prior approval of the pretrial services officer and upon such conditions as she may reasonably impose.

IT IS SO ORDERED.

9-29-2010 DATE Eastern Columbus ORDER SETTING CONDITIONS OF RELEASE 42 U.S.C. § 14135a (if blank, to be notified) Place Date and Time Release on Personal Recognizance or Unsecured Bond ADDITIONAL CONDITIONS OF RELEASE (only if above is organization) (only if above is an organization) Custodian or Proxy Date Pretrial Services as directed 21 U.S.C. § 802 Curfew. Home Detention. Home Incarceration. except for medical necessities and court appearances or other activities specifially approved by the court.

UNITED STATES DISTRICT COURT for the Southern District of Ohio Division At United States of America ) v. ) ) Case No. ___________________________________________ ) Defendant ) IT IS ORDERED that the defendant's release be subject to the following conditions: (1) The defendant must not violate any federal, state, or local law while on release. (2) The defendant must cooperate in the collection of a DNA sample if the collection is authorized by . (3) The defendant must immediately advise the court, defense counsel, and the U.S. attorney in writing of any change in address or telephone number. (4) The defendant must appear in court as required and must surrender to serve any sentence imposed The defendant must appear at __________________________________________ ______________________________ on _____________________________________________________________ IT IS FURTHER ORDERED that the defendant be released on condition that: () (5) The defendant promise to appear in court as required and surrender to serve any sentence imposed. ( ) (6) The defendant execute an unsecured bond binding the defendant to pay to the United States the sum of _____________________________________________ dollars ($ _______________) in the event of a failure to appear as required or surrender to serve any sentence imposed. Upon finding that release by one of the above methods will not by itself reasonably assure the defendant's appearance and the safety of other persons or the community, IT IS FURTHER ORDERED that the defendant's release be subject to the conditions marked below: ( ) (7) The defendant is placed in the custody of: Person or organization ______________________________________________________________________ Address _____________________________________________________ City and State ___________________ Tel. No. ______________ who agrees (a) to supervise the defendant in accordance with all of the conditions of release, (b) to use every effort to assure the defendant's appearance at all scheduled court proceedings, and (c) to notify the court immediately if the defendant violates any condition of release or disappears. Signed: ______________________________ _______________ () (8) The defendant must: () (a) report to _____________. telephone number ____________________, no later than ______________________________________. () (b) report to the Pretrial Services Officer any contact with any law enforcement personnel, including but not limited to any arrest, questioning or traffic stop. ( ) (c) execute a bond or an agreement to forfeit upon failing to appear as required the following sum of money or designated property: ______________________________________________________________ _______________________________________________________________________________________________ ( ) (d) post with the court the following proof of ownership of the designated property, or the following amount or percentage of the above-described sum _____________________________________. ( ) (e) execute a bail bond with solvent sureties in the amount of $ __________________________________. ( ) (f) maintain or actively seek employment. ( ) (g) maintain or commence an education program. () (h) surrender any passport to: ______________________________________________________________________ () (i) obtain no passport. ( ) (j) abide by the following restrictions on personal association, place of abode, or travel: _______________________________________________________________________________________________ ( ) (k) avoid all contact, directly or indirectly, with any person who is or may become a victim or potential witness in the investigation or prosecution, including but not limited to: _______________________________________________________________________________________________ ( ) (l) undergo medical or psychiatric treatment: _____________________________________________________ _______________________________________________________________________________________________ ( ) (m) return to custody each (week) day at _______ o'clock after being released each (week) day at __________ o'clock for employment, schooling, or the following purpose(s): _______________________________________________________________________________________________ _______________________________________________________________________________________________ ( ) (n) maintain residence at a halfway house or community corrections center, as the pretrial services office or supervising officer considers necessary. () (o) refrain from possessing a firearm, destructive device, or other dangerous weapons. () (p) refrain from ( ) any () excessive use of alcohol. () (q) refrain from use or unlawful possession of a narcotic drug or other controlled substances defined in , unless prescribed by a licensed medical practitioner. ( ) (r) submit to any testing required by the pretrial services office or the supervising officer to determine whether the defendant is using a prohibited substance. Any testing may be used with random frequency and include urine testing, the wearing of a sweat patch, a remote alcohol testing system, and/or any form of prohibited substance screening or testing. The defendant must refrain from obstructing or attempting to obstruct or tamper, in any fashion, with the efficiency and accuracy of any prohibited substance testing or monitoring which is (are) required as a condition of release. ( ) (s) participate in a program of inpatient or outpatient substance abuse therapy and counseling if the pretrial services office or supervising officer considers it advisable. () (t) participate in one of the following location monitoring program components and abide by its requirements as the pretrial services officer or supervising officer instructs. (see order of 9/24/2010) ( ) (i) You are restricted to your residence every day ( ) from ____________ to ____, or ( ) As directed by pretrial services office or supervising officer; or ( ) (ii) You are restricted to your residence at all times except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities pre-approved by the pretrial services office or supervising officer; or () (iii) You are restricted to 24-hour-a-day lock-down () (u) submit to the location monitoring indicated below and abide by all of the program requirements and instructions provided by the pretrial services officer or supervising officer related to the proper operation of the technology. () The defendant must pay all or part of the cost of the program based upon your ability to pay as the pretrial services office or supervising officer determines. ( ) (i) Location monitoring technology as directed by the pretrial services office or supervising officer; () (ii) Radio Frequency (RF) monitoring; ( ) (iii) Passive Global Positioning Satellite (GPS) monitoring; ( ) (iv) Active Global Positioning Satellite (GPS) monitoring (including "hybrid" (Active/Passive) GPS); ( ) (v) Voice Recognition monitoring. ( ) (v) ___________________________________________________________________________________________ ___________________________________________________________________________________________ ___________________________________________________________________________________________

ADVICE OF PENALTIES AND SANCTIONS

TO THE DEFENDANT:

YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:

Violating any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of your release, an order of detention, a forfeiture of any bond, and a prosecution for contempt of court which could result in imprisonment, a fine, or both.

If you commit a federal offense while on release, you will receive an additional consecutive prison term of not more than ten years if the offense is a felony and not more than a year if the offense is a misdemeanor

It is a crime punishable by up to ten years in prison, and a $250,000 fine, or both, to: obstruct a criminal investigation; tamper with a witness, victim, or informant; retaliate or attempt to retaliate against a witness, victim, or informant; or intimidate or attempt to intimidate a witness, victim, juror, informant, or officer of the court. The penalties for tampering, retaliation, or intimidation are significantly more serious if they involve a killing or attempted killing.

If, after release, you knowingly fail to appear as the conditions of release require, or to surrender to serve a sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed. If you are convicted of:

(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more — you will be fined not more than $250,000 or imprisoned for not more than 10 years, or both;

(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years — you will be fined not more than $250,000 or imprisoned for not more than five years, or both;

(3) any other felony — you will be fined not more than $250,000 or imprisoned not more than two years, or both;

(4) a misdemeanor — you will be fined not more than $100,000 or imprisoned not more than one year, or both.

A term of imprisonment imposed for failure to appear or surrender will be consecutive to any other sentence you receive. In addition, a failure to appear or surrender may result in the forfeiture of any bond posted.

Acknowledgment of the Defendant

I acknowledge that I am the defendant in this case and that I am aware of the conditions of release. I promise to obey all conditions of release, to appear as directed, and surrender to serve any sentence imposed. I am aware of the penalties and sanctions set forth above. Defendant's Signature Address City and State Telephone Number

_______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ Directions to the United States Marshal 9-29-2010 Judicial Officer's Signature Printed name and title () The defendant is ORDERED released after processing. ( ) The United States marshal is ORDERED to keep the defendant in custody until notified by the clerk or judge that the defendant has posted bond and/or complied with all other conditions for release. If still in custody, the defendant must be produced before the appropriate judge at the time and place specified. Date: ___________________________________________________ ___________________________________________________