United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
This matter is before the court on defendant's renewed request for release on bail, after his trial and conviction for conspiracy to commit mail fraud, pending sentencing. The government opposes the motion. The court heard oral argument on February 5, 2014. Jan David Karowsky appeared for Mr. McCarns, who was present, in custody, and Assistant U.S. Attorney Michael D. Anderson appeared on behalf of the government. After consideration of the parties' arguments, the case file, and the applicable law, the court denies defendant's motion for the reasons stated below.
Mr. McCarns was indicted in 2008 for conspiracy to commit mail fraud in violation of 18 U.S.C. § 1349, and he was found guilty by jury in December 2013. In the approximately five-and-a-half years' time between indictment and his conviction, Mr. McCarns was released on bail, and he made all of his required court appearances.
After the jury verdict, the government moved for Mr. McCarns' remand. The court considered argument from defense counsel and from the government. The court also considered information provided by the government on a number of law enforcement contacts Mr. McCarns had incurred without reporting the contacts to his Pretrial Services Officer. The court found defendant had not overcome the burden that had shifted to him upon conviction, to show he does not pose a danger to others or the community under Federal Rule of Criminal Procedure 46 and 18 U.S.C. § 3143; the court ordered Mr. McCarns remanded into custody.
Mr. McCarns moved to reopen the issue of detention pending sentencing. Over objection, the motion to reopen was granted in light of new information related to Mr. McCarns' law enforcement contacts. Mr. McCarns and the government have submitted briefs that offer sharply divergent versions of defendant's conduct over the course of his five years on release awaiting trial and recently in custody. These conflicting narratives are recounted separately below.
A. Mr. McCarns' Version of Events
Mr. McCarns argues he should be released pending sentencing because he "is neither violent nor a flight risk, " and it will take over a year for defense counsel to prepare a motion for new trial and to prepare to try the second set of pending charges. (Dominic McCarns' Detention Hr'g Mem. ("Def.'s Mem.") at 10:1-19, ECF No. 493.)
Mr. McCarns takes issue with the government's characterization of his alleged domestic violence incidents. Mr. McCarns concedes the facts contained in a police report of defendant's Los Angeles arrest in November 2012 "appear to show some significant domestic violence committed by [defendant] against L.L." ( Id. at 3:20-22.) However, Mr. McCarns provides context to explain the incident as one episode in a larger and turbulent romantic affair, militating against a finding of dangerousness.
Specifically, Mr. McCarns portrays his relationship with L.L. as tumultuous and punctuated by eruptions often fueled by L.L.'s alcohol consumption. According to Mr. McCarns' former roommate Reyes, L.L. is "very sweet"-that is, "unless [she] was drinking alcohol." (Def.'s Mem., Ex. B, at 2, ECF No. 493-2.) Reyes states he witnessed "episodes of [L.L's] wild drunken and in-your face behavior towards" defendant, who for his part "never would engage [L.L.] in any kind of physical altercation or fighting." ( Id. ) According to L.L. herself, she "picks fights [with defendant] only when she is drunk, " and L.L. admits "that she has done this at least 20 times in the year and a half of their romantic relationship." ( Id. at 3.)
According to L.L. and Tereno, L.L.'s and Mr. McCarns' mutual friend, the incident on November 20, 2012, leading to Mr. McCarns' arrest was one of these episodes. That night was Tereno's 25th birthday, and she asked defendant and L.L. to join her at a club in Hollywood, California. According to Tereno, L.L. consumed "between 4-5 Long Island ice tea[s]" and "at least 3 shots of Tequila." L.L. for her part remembers drinking "at least 7-8 Long Island ice teas." ( Id. at 3.) L.L. "explains that she has a high tolerance for alcohol." ( Id. at 1.) Tereno, however, witnessed L.L. "stagger into the bar restroom and accidentally spill her drink onto another lady. One thing lead to another and... the two women were fighting" until a security guard, onlookers, and Mr. McCarns "broke up the fight. By this time [L.L.] was wasted, ' and had some scratches and a fat lip." ( Id. at 1.) According to Tereno, L.L. "had too many drinks and became belligerent and loud." ( Id. ) L.L. herself remembers that "she was very drunk and something happened next to the bathroom where she got into a fight with two or three women in the bar." ( Id. at 3.)
According to L.L. and Tereno, L.L. "got the keys to [Mr. McCarns'] car... somehow, " and while Mr. McCarns took a cab to get back to Costa Mesa, L.L. drove Mr. McCarns' car. ( Id. at 1, 3.) L.L. then chased Mr. McCarns' cab until the cab driver pulled over. At some point, the police arrived, and both L.L. and Mr. McCarns were arrested. L.L. says she "remembers only very little because she was so drunk." ( Id. at 3.) The police asked L.L. how she got the fat lip and scratches, and she told them she was in a fight at a bar in Hollywood; but "the police stated they did not believe her story because she made the 911 call stating her boyfriend hit her." ( Id. )
The Los Angeles County Sherriff's Department's supplementary incident report largely confirms Mr. McCarns' version of events. Detective Preston recorded his report of his interviews with Mr. McCarns and L.L. (Def.'s Mem., Ex. A, at 1, ECF No. 493-1.) According to Preston, Mr. McCarns said he did not hit L.L.: "All I did was drag her out of my car because she embarrassed me at the club!" ( Id. ) L.L. said she and defendant were kicked out of the club because she "got into an argument with an unknown female at the dance club" and "was hit by the female." ( Id. ) On the drive home, Mr. McCarns drove with L.L. in the passenger's seat, at which point L.L. "said she pulled at the steering wheel and attempted to cause the car to collide with the center median on the freeway." ( Id. ) L.L. explained "the high amount of liquor she had consumed weakened her decision making." ( Id. )
Mr. McCarns also takes issue with the government's claim that four other incidents of reported domestic violence show he is violent. Mr. McCarns contends these incidents occurred at his apartment "at the upscale, Villa Siena Apartments, " in Irvine, California. These incidents, Mr. McCarns argues, arose from neighbors' complaints about noisy arguments during "quiet hours." (Domonic McCarns' Supplemental Detention Hr'g Mem. ("Def.'s Supp. Mem.") at 2:1-23, ECF No. 508.) Moreover, Mr. McCarns points out he was not arrested and the police noted "no crime occurred." Mr. McCarns ...