Opinion
CASE NUMBER 11 M 20
08-11-2011
United States v. Smiekel
Name of Assigned Judge or Magistrate Judge
Sitting Judge if Other than Assigned Judge
DOCKET ENTRY TEXT:
The government's motion for revocation of order of pre-trial release pursuant to 18 U.S.C. § 3145(a)(1) [7] is granted. The pre-trial release order is revoked, and defendant is ordered detained pending trial.
[] For further details see text below.
Docketing to mail notices.
STATEMENT
Defendant, Jason W. Smiekel, an attorney licensed in the State of Illinois, is charged by criminal complaint with the use of interstate commerce facilities in the commission of murder for hire in violation of 18 U.S.C. § 1958. This offense is a class C felony punishable by a term of imprisonment not more than 10 years. The government has appealed a pre-trial release order issued by Magistrate Judge P. Michael Mahoney on August
10, 2011. The government seeks revocation of that order asserting that the imposed conditions of release are not adequate to protect the safety of any other person or of the community. Defendant opposes detention and argues that the conditions of his release are sufficient to ensure the safety of the community.
On August 11, 2011, this court accepted the parties' evidentiary proffers and heard oral argument on the government's appeal. For the reasons that follow, the government's motion to revoke the pre-trial release order is granted and defendant is ordered detained pending trial.
I. BACKGROUND
After finding probable cause, the magistrate judge conducted a detention hearing. At the hearing, both the government and defendant submitted oral proffers to the court. The magistrate judge denied the United States' motion for pre-trial detention and entered an order granting pre-trial release. In addition to the standard conditions of pre-trial release and a $4,500 recognizance bond, the magistrate judge imposed the following conditions: (1) the defendant must live at the residence of defendant's mother and stepfather; (2) his mother, a licensed realtor, is a third-party custodian of the defendant; (3) the defendant surrender his FOID card and passport; (4) no firearms are allowed in his mother's residence; (5) he have no contact with any potential witnesses or alleged intended victims; and (6) he is on "home incarceration" with electronic monitoring at defendant's expense. At the government's request, the pre-trial release order was stayed until 5 p.m. on August 11, 2011.
The government has submitted a written evidentiary proffer which is summarized as follows. According to the government, defendant's motive to kill the intended victim is not completely clear at the present time but it represents that the following events took place in February 2011: (1) defendant was divorced from his former wife; (2) defendant began a romantic relationship with his fiancee; (3) the fiancee and the intended victim previously had a child together; (4) defendant represented the intended victim in a contentious state-court proceeding involving, in part, child custody; (5) the fiancee was the other party in the court proceeding; and (6) defendant called the intended victim, said that he had been in a bar, had met the fiancee, that they "made out," and that defendant could no longer represent the intended victim in the state-court proceeding because of "ethics."1
In February 2011, defendant approached one of his friends seeking a hit-man and the friend put defendant in contact with two hit-men. Defendant has claimed that he paid the two hit-men an $8,000 down payment on an agreement to murder the intended victim for $15,000. The two hit-men did not commit the murder and absconded with the money.
In late April to early May 2011, defendant approached one of his clients who owed him attorney's fees and asked the client to connect him with someone who would "scare" the intended victim.2 According to defendant, the intended victim was hurting his girlfriend and her child. Defendant provided the client with a photograph of, and personal details about, the intended victim, including the residence, vehicle, and employment of the intended victim. Defendant indicated that he now wanted someone who would hurt the intended victim and suggested breaking the intended victims' legs. Later during this meeting, defendant said "it wouldn't be too bad if the intended victim was dead." Thereafter, defendant continued to call the client, asking if the client had found anyone to take care of the intended victim. On June 14, 2011, defendant met with the client, continued to press the client on collection of the attorney's fees, and told the client to "just kill the ass-hole." On June 20, 2011, defendant spoke to the client on the telephone and again raised the issue of the client arranging for a hit-man. The client told defendant that killing the intended victim was not worth it and that defendant could lose everything he had. Defendant responded, "Will you just think about it?"
A cooperating individual (CI) told two ATF agents that on July 27, 2011, defendant approached him and said that he wanted to have the intended victim murdered in order to prevent the intended victim from giving damaging testimony in a proceeding. Defendant indicated that his girlfriend's ex-husband, the intended victim, had information about him that could get him in trouble and lead to a criminal indictment. Defendant wanted to have the intended victim killed prior to a July 29, 2011 court appearance. Defendant told the CI that he previously paid two hit-men a total of $8,000 to murder the intended victim, with the understanding that an additional $7,000 would be paid upon completion of the task. Defendant indicated that the two males took off with the $8,000 and never committed the murder. Defendant asked the CI if he could "get it done" and indicated that he was willing to pay up to $25,000 for the murder.
On July 28, 2011, the CI told defendant that, "I'm willing to do the 25. What do you need?" Defendant told the CI that the intended victim had evidence that would completely destroy him and that he needed something done by the following day. The CI told defendant that nothing would happen that quickly. On July 29, 2011, defendant called the CI's cell phone and indicated that he was able to buy himself more time in regards to the court date.
On July 31, 2011, the CI, while equipped with two covert recording devices, met with defendant and told him that he knew an individual named "Chris" who would be willing to complete the task that he and defendant had discussed. Defendant wrote the intended victim's name, address, and place of employment on a piece of paper, along with a phone number that "Chris" was to use to contact defendant. Defendant told the CI that he still wanted to pay someone to kill the intended victim, that the intended victim was about to "ruin" him, and that he had been reported to the ARDC. Defendant also asked about the proposed cost saying, "I need to be ready money-wise." The CI said that defendant again discussed how he had tried to have this done in February 2011 and indicated that he wanted it completed by August 5, 2011. Defendant requested that "Chris" call him on the phone number on the piece of paper.
On August 1, 2011, ATF Special Agent Chris Bayless, posing as a hit-man, called defendant and arranged to meet him at a restaurant. That evening defendant walked out of the restaurant and got into Bayless' undercover car. Defendant introduced himself as "Jason" and told Bayless that there was a guy who was causing him family problems and problems with his livelihood. Defendant said six months ago he had foreseen troubles and had gone to someone else, but had been ripped off.4 Bayless said that he was not sure whether he wanted the job but that for the right price, anything could get taken care of. Defendant said he had a time problem and that the intended victim had "dirt" on him that could ruin his career. Defendant said there was no other solution. Defendant identified the locations of the intended victim's place of employment and health club. Bayless said it would cost about "twenty." Defendant agreed to pay $1,500 up front, described the physical appearance of the intended victim, and agreed to provide a photograph. Defendant and Bayless agreed to meet the following day at the same restaurant.
On August 2, 2011, defendant met Bayless at the restaurant and the meeting was covertly audio and video recorded. Defendant gave Bayless an envelope containing a small photograph of the intended victim and $1,500 in currency. Bayless said he had already put "things in motion," and that he planned on making it look like the murder stemmed from a robbery. Defendant said that he would have part of the money on Friday and they discussed how defendant would pay the remainder. Bayless said that he would call defendant when "it's done." Bayless said that if he got an earlier opportunity to kill the intended victim, he would take advantage of that and would call defendant after the murder. Otherwise, Bayless would try to kill the intended victim by Thursday and defendant agreed to try and pay Bayless $10,000 right after the murder with the rest of the fee to be paid later. The meeting ended with Bayless saying that he would call defendant when the intended victim was dead.
On August 4, 2011, Bayless and defendant had a series of telephone calls during which Bayless asked whether defendant had the money and defendant said that he had $7,000. According to bank records, on August 3, 2011, defendant's fiancee withdrew $7,000 in cash from a joint checking account of defendant and his fiancee.5 Bayless asked defendant whether he wanted to drive by the scene of the murder in order to confirm that the intended victim had died and defendant indicated that he did not. Defendant said that he trusted Bayless and would provide the $7,000 up front. They agreed to meet at the same restaurant later that day. At approximately 4:17 p.m. on August 4, 2011, Bayless and defendant met in the parking lot of the restaurant. Defendant got into Bayless' vehicle and handed him an envelope containing $7,000 in United States currency. After discussing how defendant would pay the rest of the fee for the murder, Bayless gave the arrest signal and ATF special agents arrested defendant.
Defense counsel proffered a conversation that he had with attorney George Collins, defendant's attorney in connection with the ARDC proceeding. According to counsel, Collins indicated that the ARDC complaint filed by the intended victim was not very serious and that defendant did not receive notice of the claim until July 29, 2011.
II. ANALYSIS
The district court considers appeals under § 3145 de novo. United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985). The government only argues that pre-trial conditions are insufficient to assure the safety of persons in the community, not that conditions are insufficient to assure defendant's appearance in court. Defendant argues that the conditions of his release are sufficient to ensure the safety of the community. Thus, the issue before the court is whether there is any condition or combination of conditions that will reasonably assure the safety of any other person and the community. The court makes the following findings regarding the applicable § 3142(g) factors using the clear and convincing evidence standard of § 3142(f)(2).
(1) The Nature and Circumstances of the Offense Charged, Including Whether the Offense Is a Crime of Violence, a Federal Crime of Terrorism, or Involves a Minor Victim or a Controlled Substance, Firearm, Explosive, or Destructive Device
The court finds that the charged offense qualifies as a crime of violence. See 18 U.S.C. § 3156(a)(4)(A) (stating that "[a] crime of violence means an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another"). Defendant has not argued to the contrary. Accordingly, this factor weighs in favor of detaining defendant pending trial.
(2) The Weight of the Evidence Against Defendant
The court finds that the government's case against the defendant is strong. The government's proffer indicated that defendant approached multiple parties over a seven-month time frame in an effort to have the intended victim murdered. Even after being "ripped off" by the first two hit-men and being told by one of his clients that it was a bad idea, defendant persisted in finding someone to perform the murder. A substantial portion of defendant's efforts to hire someone to kill the intended victim are corroborated in recorded conversations.
The only arguments defendant advances against the conclusion that the evidence against him is strong are that: (1) he categorically denies the allegations in the government's proffer; (2) it makes little sense that he would attempt to kill the intended victim in February 2011when he only just met his fiancee that month; and (3) defendant had no motive arising out of the purported ARDC complaint on July 27, 2011, because he did not receive notice of the complaint until July 29, 2011. These arguments are not persuasive. The first argument is not an argument at all. Defendant's second argument seems to suggest that it takes time to form the intent to kill. The court is not sure that is true. In any event, the evidence of defendant's efforts to hire someone to kill the intended victim encompass more than event occurring in February 2011. As for the third argument, the evidence suggests that the ARDC complaint is only one of multiple motives defendant had to have the intended victim killed. Moreover, the proffered evidence shows that defendant was trying to have the intended victim killed before and after he received notice of the ARDC complaint. Therefore, whether defendant had notice of the ARDC claim on July 27 or July 29 is not significant. Based on the foregoing, the court finds that the government's case against the defendant is strong and this factor weighs in favor of detaining defendant pending trial.
(3) The History and Characteristics of the Person
The court acknowledges that defendant apparently has no criminal history, defendant is a licensed attorney in this State, and has ties in the Northern District of Illinois such as the fact that his mother and step-father reside in the district. Nevertheless, even though some of the components of the history and characteristics factor favor release, under the circumstances this factor is insufficient to outweigh the other § 3142(g) factors that weigh in favor of detention.
(4) The Nature and Seriousness of the Danger to Any Person or the Community That Would Be Posed by the Person's Release
The nature and seriousness of the danger in this case is of the gravest type, the possible loss of human life. The facts alleged in the government's evidentiary proffer point to a murder for hire. According to a yet unnamed friend, defendant hired two hit- men to kill the intended victim in February 2011. Defendant confirmed this fact when he told the CI and Bayless that he tried to hire someone in the past but was ripped off. Defendant told his client that "it wouldn't be too bad if the intended victim was dead" and "just kill the ass-hole." Defendant asked the CI if he could "get it done," indicated that he was willing to pay up to $25,000 for the murder, and was receptive to meeting with "Chris," the hit-man that the CI referred to defendant. Defendant told Bayless that "there was no other solution," hired him to kill the intended victim, and paid him $8,500 of the agreed $20,000 price. Notably, defendant made no protest of mistake or misunderstanding to Bayless' remark "I'll call you when he is dead."
The court agrees with the government that the conditions of pre-trial release, including home incarceration under electronic monitoring, are not conditions that will reasonably assure the safety of the intended victim. Such measures are reactionary and not preventative and defendant has demonstrated a willingness to terminate the life of people who interfere with his desires, including the intended victim and ostensibly the two hit men who took his money. Even under home confinement and electronic monitoring defendant would have at his disposal various ways of continuing his efforts to have the intended victim killed. While the investigation of any harm done to the intended victim or any witness in this case would certainly be focused on defendant, any deterrent effect this creates is overshadowed by defendant's persistence over the past seven months to have the intended victim killed.
III. CONCLUSION
The court finds by clear and convincing evidence that no condition or combinations of conditions of pre-trial release will reasonably assure the safety of persons in the community. Consequently, the government's motion is granted, the pre-trial release order is revoked, and defendant is ordered detained pending trial.
1. The government informs the court that much of this information was not presented before the magistrate judge either because it was not yet available or to protect the identity of the intended victim. In response, defense counsel took the position that only the facts that the fiancee withdrew $7,000 and the relationship between defendant and his fiancee were not presented to the magistrate judge. In light of the fact that this court "may start from scratch, " United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991), it is not essential that the court determine what was and was not presented to the magistrate judge.
2. At the hearing, the attorney for the government supplemented the written proffer by indicating that the client was someone who has an affiliation with a violent motorcycle club.
3. Since the detention hearing before the magistrate, the government has learned that in July 2011 the intended victim filed a complaint against defendant with the ARDC. On July 27, 2011, the intended victim received correspondence from the ARDC stating that it had received his complaint and had requested that defendant respond to the allegations.
4. At a subsequent meeting with Bayless, defendant said that if the two hit men tried to make trouble for him, he might have to hire Bayless again.
5. The government informs the court that this information was received on August 11, 2011, and was not presented to the magistrate judge at the detention hearing.