Opinion
Case No. 23-CR-217-GKF-2
2023-09-08
UNITED STATES of America, Plaintiff, v. Abby Chantel SELMAN, Defendant.
Reagan Vincent Reininger, Joel-lyn Alicia McCormick, Government Attorneys, United States Attorney's Office, Tulsa, OK, Nathan Edward Michel, Government Attorney, DOJ-USAO, Tulsa, OK, for Plaintiff. Justin Andrew Lollman, GableGotwals, Tulsa, OK, for Defendant.
Reagan Vincent Reininger, Joel-lyn Alicia McCormick, Government Attorneys, United States Attorney's Office, Tulsa, OK, Nathan Edward Michel, Government Attorney, DOJ-USAO, Tulsa, OK, for Plaintiff. Justin Andrew Lollman, GableGotwals, Tulsa, OK, for Defendant. ORDER GREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE
This matter comes before the court on the Expedited Motion to Revoke Detention Order and Brief in Support [Doc. 108] of defendant Abby Chantel Selman. For the reasons set forth below, the motion is granted.
I. Background
On June 20, 2023, a grand jury returned an Indictment charging Ms. Abby Chantel Selman with several offenses, including one count of Drug Conspiracy, 21 U.S.C. §§ 846, 841(b)(1)(A)(vi), and 841(b)(1)(A)(viii); two counts of Distribution of Methamphetamine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(viii); three counts of Distribution of Methamphetamine, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii); one count of Firearms Trafficking, 18 U.S.C. §§ 933(a)(1), 933(a)(3), and 933(b); and five counts of Unlawful Use of a Communication Facility, 21 U.S.C. §§ 843(b) and 843(d)(1). Ms. Selman is also referenced in the Forfeiture Allegation pursuant to 18 U.S.C. § 924(d)(1), 21 U.S.C. § 853, and 28 U.S.C. § 2461(c). [Doc. 1, p. 3; Doc. 3].
On July 26, 2023, the government filed the Motion for Detention. [Doc. 65]. Therein, the government invoked the rebuttable presumption against defendant pursuant to 18 U.S.C. § 3142(e), arguing probable cause existed that Ms. Selman committed a drug offense with a maximum sentence of ten years or more. The government argued detention was appropriate because no conditions of release would reasonably assure either (1) the defendant's appearance as required; or (2) the safety of any other person and the community. [Id.].
Magistrate Judge Steele conducted a detention hearing on August 2, 2023. [Docs. 75, 81]. At the hearing, the government proffered certain information related to Ms. Selman's involvement in several controlled buys of methamphetamine with the FBI, a firearms sale, and her connection to a co-conspirator and member of the United Aryan Brotherhood ("UAB"). Defense counsel proffered certain information related to Ms. Selman's lack of criminal history (besides the current charges she faces in this case), and the fact that she spent four months between March and July 2023 unsupervised by the court without committing any crimes. Additionally, Ms. Selman explained that she has kept stable employment and is living with her mother in Wichita Falls, Texas who has agreed to supervise her in the months leading to trial. [Doc. 81, p. 18].
Defense counsel objected to the government's use of proffer, arguing that only the defense may proceed by proffer under 18 U.S.C. § 3142(f), and that the government must present evidence. [Doc. 81, p. 3]. While § 3142(0(2) does require the government to prove that no condition will reasonably assure the safety of any other person or the community by clear and convincing evidence, the statute also states that "[t]he rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." United States v. Quapaw, No. 22-CR-00222-GKF-2, 2022 WL 3359365, at *4 (N.D. Okla. Aug. 15, 2022) (citing 18 U.S.C. § 3142(f)(2)). This language suggests the judicial officer may rely on information and evidence to support its conclusion. Quapaw, 2022 WL 3359365, at *4. Thus, presenting information by proffer was permissible and this court may consider the government's proffer from the August 2, 2023 detention hearing.
At the close of the hearing, Magistrate Judge Steele ordered Ms. Selman detained pending trial, concluding that the government had shown by clear and convincing evidence that no condition or combination of conditions of release would reasonably assure the safety of any person and the community. [Id.]. Magistrate Judge Steele subsequently filed an August 3, 2023 written order setting forth his findings of facts and conclusions of law as to detention ("Detention Order"). [Doc. 75].
On August 31, 2023, Ms. Selman filed the Expedited Opposed Motion to Revoke Detention Order and Brief in Support [Doc. 108], requesting that the Detention Order be revoked and that Ms. Selman be released on conditions pending trial. [Id., p. 6]. On September 5, 2023, the government filed a Response in Opposition to Defendant's Motion to Revoke Detention Order. [Doc. 110]. Finally, Ms. Selman filed a reply to the government's response on September 6, 2023. [Doc. 113].
II. Information Considered by Magistrate Judge Steele
During the August 2, 2023 detention hearing, the government requested the court consider information proffered during the hearing, in addition to the presentation of its argument. Ms. Selman made a proffer and argument at the hearing as well. The court separately considers each source of information.
A. Proffers
At the August 2, 2023 detention hearing, the government proffered that FBI Special Agent Walker would testify that she is one of the lead case agents involved in the investigation of the Universal Aryan Brotherhood ("UAB"). [Doc. 81, p. 3]. As part of that investigation, the FBI conducted several controlled buys with FBI "undercover employees" posing as drug purchasers. [Id. at p. 4]. Specifically, the FBI engaged or attempted to engage in six controlled buys in which defendant Selman was involved. These controlled buys occurred on March 8th, 2022, April 26, 2022, May 6, 2022, and June 7, 2022. [Id. at pp. 6-8, 11]. The two attempted buys were on May 24, 2022 and July 13, 2022 in which Ms. Selman could not complete the sales because she was pulled over for a traffic violation. [Id. at pp. 9, 12]. The government proffered that Ms. Selman conducted the first of these sales with her boyfriend Mr. Maynard, a member of the UAB gang, and that a vehicle registered in her name was present during the sale. [Id. at pp. 4-6]. Throughout the following relevant drug buys, Ms. Selman communicated with the undercover employees to facilitate the sale of methamphetamine, despite the fact that her boyfriend, Mr. Maynard, had been arrested. [Doc. 81, p. 6-7]. At least two of the sales occurred at Ms. Selman's residence. [Id. at p. 8]. In addition to the drug sales, the government proffered that Ms. Selman was involved in one sale of firearms by facilitating the purchase of an AR-15 style rifle and a semiautomatic pistol between co-defendant Scott and the controlled buyer. [Id. at, p. 11].
The government also proffered that after her arrest on July 13, 2022, Ms. Selman was interviewed by an FBI special agent and an FBI task force officer where she explained that she had been self-medicating herself with methamphetamine. [Id. at p. 13]. She also admitted that she knew drugs were in the car throughout the conspiracy and that the drug trafficking was conducted generally by the UAB and more specifically through Mr. Maynard. [Id. at p. 13]. By the government's calculations, Ms. Selman was involved in drug transactions involving 21,518.3 grams of methamphetamine. [Doc. 81, p. 14].
Defense counsel proffered information related to Ms. Selman's characteristics and background. It noted that Ms. Selman is forty-five years old and currently residing in Wichita Falls, Texas with her mother. [Id. at p. 15]. The defense highlighted Ms. Selman's complete lack of criminal history. [Id.]. She has spent most of her life living in Wichita Falls, and her father and daughter reside there as well. [Id. at p. 15]. Ms. Selman resided in Oklahoma between 2017 and 2023. [Id. at, pp. 15-16]. She returned to Wichita Falls in March 2023 after the state charges originally filed regarding this drug conspiracy were dismissed. [Doc. 81, p. 16]. Ms. Selman highlighted the fact she spent four months between March through July 2023 unsupervised by the court without committing any crimes and is living with her mother who has agreed to supervise her in the months before trial. [Id. at p. 18]. Ms. Selman met with two probation officers who reviewed her case and recommend that she be released. [Id. at p. 17]. She no longer uses drugs, and she lives with her mother with no guns or drugs in the home; she also has a stable job that requires her to travel. [Id. at p. 18]. Defense also highlighted Ms. Selman's medical history, explaining she suffers from severe ulcerative colitis. [Id. at p. 17].
B. Argument
After submitting proffer, the government presented its argument. It argued that it requested Ms. Selman's detainment because her involvement in the conspiracy was more significant than other co-defendants. In analyzing the factors, it argued that the weight of the evidence against Ms. Selman is high, that she has suffered from drug abuse problems herself, the nature of the offense is serious because it involves a large amount of methamphetamine, and the danger to the community is present in part because the legislature considered drug trafficking a danger to the community when drafting the factors in § 3142(g). [Doc. 81. pp. 21, 26, 29, 31, 32]. The defendant argued the structure of the Bail Reform Act established a liberal policy of pretrial release. It then recounted its proffered information in response.
Judge Steele recognized that the defendant had presented enough evidence sufficient to rebut the presumption in 18 U.S.C. § 3142(e)(3), but concluded that detention was still warranted because by clear and convincing evidence no conditions will reasonably assure the safety of any other person and the community.
III. Applicable Standard
Pursuant to 18 U.S.C. § 3145(b), "[i]f a person is ordered detained by a magistrate judge . . . the person 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 court's review is de novo. United States v. Cisneros, 328 F.3d 610, 616 n.1 (10th Cir. 2003).
"A district court has the discretion to hold an evidentiary hearing if it determines that additional evidence is necessary or it may rule on the written pleadings and evidence if the factual record is sufficient." United States v. Daughtry, No. 19-CR-0161-CVE, 2019 WL 4731949, at *2 (N.D. Okla. Sept. 27, 2019) (citing United States v. King, 849 F.2d 485, 490-91 (11th Cir. 1988); United States v. Williams, 753 F.2d 329, 334 (4th Cir. 1985)). The court has read the transcript of the August 2, 2023 detention hearing held before Magistrate Judge Steele [Doc. 81]. The court has also reviewed the motion and other filings in this case. Based on its review, the court has determined that a sufficient factual record exists and therefore an additional evidentiary hearing is unnecessary.
"Under the Bail Reform Act, a defendant may be detained pending trial only if a judicial officer finds 'that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.' " Cisneros, 328 F.3d at 616 (quoting 18 U.S.C. § 3142(e)). To determine whether there are conditions of release that will reasonably assure defendant's appearance as required and the safety of any other person and the community, the court must take into account the available information concerning the following:
(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; and
18 U.S.C. § 3142(g). The government must prove risk of flight by a preponderance of the evidence, and danger to any other person or the community by clear and convincing evidence. Cisneros, 328 F.3d at 616 (citing 18 U.S.C. § 3142(f)).
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
The government invokes the presumption of detention pursuant to 18 U.S.C. § 3142(e), because Ms. Selman is charged with an offense with a maximum term of imprisonment of ten years or more under the Controlled Substances Act. See 18 U.S.C. § 3142(e) ("Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed . . . 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.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46[.]"). As explained by the Tenth Circuit:
Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in
determining whether to release or detain.United States v. Stricklin, 932 F.2d 1353, 1354-55 (10th Cir. 1991) (citing United States v. Cook, 880 F.2d 1158, 1162 (10th Cir. 1989)).
IV. Analysis
Based on its independent, de novo review of the record, as well as the additional evidence presented during the August 2, 2023 detention hearing, the court concludes that the government has not demonstrated by clear and convincing evidence that there is no condition, or combination of conditions, that will reasonably assure the safety of other persons and the community.
As an initial matter, based on the return of the Indictment, probable causes exists that Ms. Selman committed an offense with a maximum term of imprisonment of ten years or more under the Controlled Substances Act. See 18 U.S.C. § 3142(e); see also United States v. Silva, 7 F.3d 1046, at *1 (10th Cir. Oct. 7, 1993) (unpublished table decision) ("The grand jury indictment is sufficient to establish the finding of probable cause that defendant committed a federal drug offense with a maximum prison term of ten years or more."); United States v. Perez, 785 F. Supp. 2d 1177, 1183 (D.N.M. 2011) (collecting cases). Thus, the presumption applies. However, Ms. Selman has presented sufficient evidence to rebut the presumption.
Looking to the first § 3142(g) factor, Ms. Selman is charged with several drug-related felonies, having allegedly distributed a significant amount of methamphetamine. She is also charged with an offense related to her significant involvement in the drug conspiracy and interrelated crimes. Ms. Selman faces a lengthy sentence if convicted. Because Ms. Selman is charged with several serious drug offenses and faces an extended term of imprisonment if convicted, the first factor weighs in favor of detention, despite Ms. Selman having rebutted the presumption.
The second factor is the weight of the evidence, and it also weighs in favor of detention. During the detention hearing, the government proffered evidence that tends to show Ms. Selman was highly involved in the drug conspiracy and several drug sales. The relevant controlled sales were organized by the FBI, and FBI agents communicating directly with Ms. Selman. These FBI agents also went to Ms. Selman's home on different occasions for the sales, Ms. Selman was caught twice with methamphetamine in her car on the way to controlled sales, and she and her vehicle were identified at a sale. [Doc. 81, pp. 6, 8-9, 12]. Thus, there is ample evidence to suggest Ms. Selman was involved in the alleged offenses. The second factor weighs in favor of detention, despite Ms. Selman having rebutted the presumption.
The third factor—the history and characteristics of the defendant—weighs against detention. While the government did proffer evidence that Ms. Selman admitted to self-medicating methamphetamine while the drug conspiracy was ongoing, the defense has proffered that Ms. Selman is currently clean, has not used drugs in over a year, and is currently living at home with her mother with no drugs or guns in the home. She has extensive community ties to Wichita Falls, Texas. Both of her parents, including her daughter, live in Wichita Falls. Since moving home, she has held a job. Notably, she has no criminal history, and there has been no other evidence presented related to any prior bad conduct after she was initially charged for the crimes related to the drug conspiracy in state court, where this case originated. Ms. Selman's criminal activity began and ended with the charged drug conspiracy that occurred in Tulsa, Oklahoma, hundreds of miles away from her current residence. Therefore, this factor weighs against detention, because there are conditions of release that could reasonably assure the safety of any person and the community. Ms. Selman's evidence of strong family support, stable employment, and lack of criminal history are "some evidence" sufficient to rebut the presumption that she is a flight-risk and danger to the community.
The fourth factor is the nature and seriousness of the danger to any person or the community that would be posed by the person's release. While it is true that the charges against Ms. Selman are serious—she engaged in several controlled drug buys involving significant amounts of methamphetamine—her behavior between March through July 2023 in Wichita Falls persuades the court that her release is unlikely to pose a danger. The potential threat to public safety is that Ms. Selman, based on her past actions, may introduce more methamphetamine through illegal drug deals into the populace. As already noted, however, she is residing hundreds of miles away from the location of the drug conspiracy and any of its participants. While it is alleged that during the drug conspiracy she self-medicated with methamphetamine, defense counsel has proffered that she has since stopped using drugs entirely. She has also cooperated with authorities, has no history of violence, and has not tried to flee. Therefore, the fourth factor weighs against detention.
The question the court must answer today is whether there are no conditions of release that could reasonably assure Ms. Selman is not a danger to the community or a flight risk. Ultimately, the court is persuaded that a combination of conditions would reasonably assure the safety of other persons and the community. Ms. Selman has no history of any threatening, violent, or dangerous behavior before the charged crimes occurred, and she has committed no crimes since being released in March 2023, having spent four months without any court supervision. The charged offense occurred in Tulsa, Oklahoma, so a condition requiring Ms. Selman to reside in Wichita Falls, Texas would effectively suppress her involvement in drug deals with her former drug connections in Tulsa. Ms. Selman has no guns or drugs in the home she shares with her mother. Given Ms. Selman's cooperation throughout these legal proceedings, her willingness to find a job that does not require travel, and her mother's aid in supervising Ms. Selman, the court is persuaded that release with conditions would reasonably assure the safety of other persons and the community. [Doc. 81, pp. 20, 36].
Considering that defense counsel rebutted the § 3142(e)(3) presumption and based on the four statutory factors, the court finds and concludes that there are conditions or combination of conditions that will reasonably assure the safety of other persons and the community. Thus, defendant's Expedited Motion to Revoke Detention Order is granted.
This matter is referred to United States Magistrate Judge Christine D. Little for imposition of appropriate conditions of release pending trial. Ms. Selman shall appear before Magistrate Judge Little at 2:00 p.m. on Monday, September 11, 2023 for imposition of conditions.
V. Conclusion
WHEREFORE, the Expedited Opposed Motion to Revoke Detention Order [Doc. 108] of defendant is granted.
IT IS FURTHER ORDERED Ms. Selman shall appear before Magistrate Judge Christine D. Little at 2:00 p.m. on Monday, September 11, 2023 for imposition of conditions.