Opinion
No. 00-40024-14-SAC.
July 6, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Mickey Scott Wittenmyer's motion for review and appeal (Dk. 848) of the Magistrate Judge's detention order (Dk. 780) denying the defendant's motion for second detention hearing (Dk. 753). The defendant did not submit a memorandum in support of his motion for review and appeal. By minute order filed May 24, 2001, the court directed both sides to file their memoranda on or before May 31, 2001. The government timely filed a memorandum opposing the defendant's motion for review (Dk. 862), and the defendant filed nothing.
The court held a hearing on June 15, 2001, at which Wittenmyer's counsel asked for additional time to submit a memorandum discussing the Jencks Act material and other Brady material recently received from the government. It was agreed that with this submission then the record would be complete as to the defendant's presentation of his motion and that no further hearings on it would be necessary. The defendant timely filed his memorandum (Dk. 910) and submitted in camera the recently disclosed evidentiary material. The government filed its response under seal. (Dk. 922). Having reviewed and considered all submitted matters, the court is ready to rule.
Following its in camera review of the evidentiary material, the court turned over the documents to the clerk for filing under seal.
PROCEDURAL BACKGROUND
The original indictment in this case was filed March 16, 2000, followed by the defendant's arrest on March 27, 2000, (Dk. 66) and his release on a $50,000 unsecured bond on March 28, 2000 (Dk. 71). A petition from pretrial services filed on June 7, 2000, alleged that the defendant had tested positive for drug use in April of 2000 and that the defendant had failed to appear for a counseling appointment on June 2, 2000. (Dk. 247). The defendant's conditions for release were modified to require his attendance at weekly counseling sessions and at Narcotics Anonymous meetings. (Dk. 267).
On July 12, 2000, Pretrial Services petitioned the court alleging the defendant had a positive drug test on June 23, 2000, and the Magistrate Judge ordered the defendant to appear and show cause why his bond should not be revoked. (Dk. 296). The defendant failed to appear at the bond revocation hearing on July 18, 2000, and a bench warrant for his arrest was issued. (Dk. 303). Over two months later, the defendant was arrested on September 27, 2000. (Dk. 414). The defendant appeared before the Magistrate Judge on September 29, 2000, and stipulated to the bond violation set forth in the petition filed July 12, 2000. The Magistrate Judge ordered detention finding that the "Defendant's continued drug use and his failure to appear for bond revocation hearing . . ., leads to the conclusion that defendant is unlikely to abide by any condition or combination of conditions of release." (Dk. 416).
A superseding indictment was filed October 5, 2000. On the same day of his Rule 5 hearing, the defendant orally moved for a new detention hearing. (Dk. 474). The Magistrate Judge said he would consider a properly filed motion. On November 6, 2000, after five weeks of being in custody, the defendant filed a motion seeking a new detention hearing. (Dk. 49). In his order filed November 22, 2000, the Magistrate Judge considered what the defendant asserted as changed circumstances warranting reconsideration of his request for pretrial release. (Dk. 514). The Magistrate Judge did reconsider the issue of detention but found that the defendant offered no explanation for his over two-month flight from an earlier revocation hearing and that the defendant still posed a serious flight risk as established by a preponderance of evidence of record.
On March 8, 2001, the defendant filed a motion for second detention hearing that asserts the following changed circumstances: (1) incarceration for four additional months; (2) no use of drugs during incarceration; (3) limited access to Narcotics Anonymous ("NA") meetings and religious services during incarceration; (4) no individual drug counseling during incarceration; (5) chilled attorney-client relations from the seizure of legal mail at Shawnee County Jail; (6) length of incarceration before trial is excessive; and (6) defendant's minimal involvement in charged offenses. The government opposed the motion arguing that none of these circumstances amounts to "newly discovered information" as required by 18 U.S.C. § 3142(f)(2)(B).
The Magistrate Judge heard the defendant's motion on April 3, 2001, and denied it the same day. The defendant presented testimony from Charles Crowson, a weekend anchor for the television station KNSF in Joplin, Missouri, concerning the circumstances leading to and surrounding the defendant's arrest on September 27, 2000. The defendant argued that he should be released directly from the detention facility to a halfway house and drug rehabilitation center for treatment and then returned to the detention facility following his completion of the treatment. After hearing the evidence and arguments, the Magistrate Judge denied the motion finding that the defendant had failed repeatedly on pretrial release, had failed to appear or submit to an arrest warrant for more than two months, and had not come forward with facts or proffers that amount to a material change of circumstances.
The defendant now seeks review of the detention order. Other than stating that he is appealing the Magistrate Judge's ruling, the defendant's motion does not set forth any arguments. In his supplemental filing, the defendant contends the weight of the government's evidence against him is "absolutely lacking" and characterizes the material recently disclosed as consisting of "rank hearsay, speculation, uncorroborated and unsubstantiated rumors, beliefs and anecdotal incidents not even remotely described with any specifics as to time, place or relevance." (Dk. 910, pp. 1-2, 4). The government's original filing gave a procedural background, argued that the Magistrate Judge's ruling was reasonable and appropriate, and asked the district court to deny the defendant's motion for review. The government's supplemental response highlights statements given by informants and cooperating witnesses in arguing that the evidence "directly inculpate this defendant in the charged conspiracy."
STANDARD OF REVIEW
By statute, 18 U.S.C. § 3145(b), a defendant detained by a magistrate judge may seek review before the district court. This is a de novo review of the magistrate judge's order. United States v. Carlos, 777 F. Supp. 858, 859 (Kan. 1991); see United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992), cert. denied, 507 U.S. 940 (1993). The district court must make its own de novo determination of the facts with no deference to the magistrate judge's findings. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990); United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987). In the same vein, the district court ultimately must decide the propriety of detention with no deference to the magistrate judge's conclusion. Id.
De novo review does not require a de novo evidentiary hearing. United States v. Alonso, 832 F. Supp. 503, 504 (Puerto Rico 1993); United States v. Bergner, 800 F. Supp. 659, 661 (N.D. Ind. 1992); see United States v. Koenig, 912 F.2d at 1193. The district court may elect to "start from scratch" and follow the procedures for taking relevant evidence. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991). The district court may incorporate the record of the proceedings conducted by the magistrate judge including the exhibits admitted there. United States v. Chagra, 850 F. Supp. 354, 357 (W.D. Pa. 1994); see United States v. Messino, 842 F. Supp. 1107, 1109 (N.D. Ill. 1994). The district court may conduct evidentiary hearings if "necessary or desirable," and the hearings are not limited to situations where new evidence is being offered. Koenig, 912 F.2d at 1193. These matters are left to the district court's sound discretion. Id.; Bergner, 800 F. Supp. at 661. The district court here has reviewed the proceedings conducted by the magistrate judge and has offered both sides the opportunity to present any evidence in support of their respective positions.
SECTION 3142(F) OF THE BAIL REFORM ACT
A detention hearing is to "be reopened" only "if the judicial officer finds that 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 and the community." 18 U.S.C. § 3142(f). This provision has been interpreted "strictly" so as to deny a reopening when the evidence was available at the prior hearing. United States v. Ward, 63 F. Supp.2d 1203, 1206 (C.D. Cal. 1999); see, e.g., United States v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991) (information in affidavits and letters was available at initial hearing); United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989) (testimony of family and friends is not new evidence). Whether the new information bears materially on either risk of flight or safety to the community is a case-by-case determination. See, e.g., United States v. Hare, 873 F.2d at 799 ("length of current or potential future detention" is not material to either factor, and the defendant's work as an electrician and trustee while in detention "was not sufficiently material to the issue of dangerousness" considering the defendant's criminal history and current charges); United States v. Shareef, 907 F. Supp. 1481, 1483 (Kan. 1995) (a favorable suppression ruling affected the weight of the evidence against the defendant, one of the factors listed in § 3142(g)); United States v. Ward, 63 F. Supp.2d at 1207 (defendant's family's willingness to give security for appearance bond materially bears "on whether there is a condition of release that will reasonably assure his appearance at trial.").
The magistrate judge did not err in finding that the defendant had not come forward with any information that satisfied the requirements of § 3142(f). The length of defendant's current detention and potential length of his future detention are not material. United States v. Hare, 873 F.2d at 799. Nor is it material to his flight risk or his danger to the community that during his incarceration he has not used drugs, that he has had limited access to NA meetings and religious services, that he has not received individual drug counseling, or that his mail was improperly seized by the Shawnee County Jail. The defendant's characterization of the government's recent James proffer as showing his involvement to be minimal does not bear materially on whether he is a flight risk. Even when supplemented with his most recent efforts to criticize and disparage the government's evidence, the defendant's arguments are not persuasive in meeting § 3142(f), in particular, in overcoming the substantial evidence that shows him to be a significant flight risk. As far as the defendant's purported cooperation with law enforcement officers during his arrest on September 27, 2000, the court agrees with the magistrate judge that this circumstance does not change the fact that prior to his arrest the defendant did not make himself available to authorities for over two months. For that matter, evidence of his purported cooperation was available to the defendant at the time of his detention hearing on September 29, 2000. In sum, the court finds that the grounds asserted for reopening the detention hearing do not meet the standard required in 18 U.S.C. § 3142(f). The court denies the defendant all relief requested in his motion for review and motion for second detention hearing.
Though creative and colorful, the defendant's arguments do not show the government's case to suffer from an "embarrassing deficiency of any evidence" or to consist entirely of evidence that is inadmissible or incredible. (Dk. 910, p. 4).
Exhibits submitted on June 25, 2001, by the defendant Mickey Scott Wittenmyer in Case No. 00-40024-14-SAC for the court's in camera review in support of the defendant's Motion for Review and Appeal (Dk. 848).