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United States v. Hemsley

United States District Court, E.D. California

November 8, 2017



          Garland E. Burrell, Jr. United States District Judge

         Defendant Richard Hemsley moves for revocation of the Magistrate Judge's August 10, 2017 detention order, ECF No. 340, arguing “[t]he U.S. Magistrate Judge's finding that Mr. Hemsley should be detained as a risk of non-appearance was incorrect.” Def.'s Mot. to Revoke (“Def.'s Mot.”) 11:21-22, ECF No. 351. The United States of America (the “Government”) opposes Defendant's motion arguing, inter alia, “[Hemsley] has expressed his contempt for this Court in writing, by refusing to obey its lawful orders, . . . by failing to appear for his violation hearing, and [by] failing to surrender when made aware of this Court's bench warrant for that failure to appear.” Gov't Opp'n to Mot. (“Gov't Opp'n”) 2:5-8, ECF No. 353. Defendant filed a reply and an amended reply. Reply, ECF No. 356; Am. Reply, ECF No. 357. The motion was heard on November 3, 2017.

         18 U.S.C. § 3145(b) prescribes: “If a [defendant] is ordered detained by a magistrate judge, the [defendant] may file . . . a motion for revocation . . . of the order . . . .” In the context of the District Court reviewing the Magistrate Judge's detention order, the Ninth Circuit explained the meaning of the “de novo” standard in United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990), stating:

Clearly, the district court is not required to start over in every case, and proceed as if the magistrate's decision and findings did not exist. The district court . . . should review the evidence before the magistrate and make its own independent determination whether the magistrate's findings are correct, with no deference. If the performance of that function makes it necessary or desirable for the district judge to hold additional evidentiary hearings, it may do so, and its power to do so is not limited to occasions when evidence is offered that was not presented to the magistrate.

Id. (citation omitted).

         18 U.S.C. § 3142(b) prescribes in pertinent part: “The judicial officer shall order the pretrial release of the [defendant], . . . unless the judicial officer determines that such release will not reasonably assure the appearance of the [defendant] as required . . . .” The Government has the “burden of showing, by a preponderance of the evidence, that [the] factors” in § 3142(g), which are required to be considered when making the release determination, reveal “that no condition or combination of conditions will reasonably assure that [Defendant] will voluntarily appear.” United States v. Santos-Flores, 794 F.3d 1088, 1093 (9th Cir. 2015) (citations omitted).

         Defendant argues as follows that he should be released on his own recognizance based on his history of appearing, and that his failure to appear on April 5, 2017, was the result of him “misplacing his [cellular] phone”:

Mr. Hemsley made a number of court appearances in this case, including participation in an entire jury trial. He is in custody because of a positive test for Marijuana, for missing a court date due to misplacing his phone for a few days during a critical time, and for trying to have the warrant recalled without going into custody (as is the custom in many situations in state court). By [the November 3, 2017 Hearing], Mr. Hemsley will have been in custody for more than [5] months. Mr. Hemsley realizes the importance of complying with all of his conditions of release, and, if released, he will take the necessary steps to avoid this situation in the future.

Def.'s Mot. 11:22-12:2. Defendant also argues:

On January 6, 2014, Mr. Hemsley made his initial appearance in this case . . . . [Following the] April 8, 2014 . . . violation petition alleging that Mr. Hemsley tested positive for Marijuana[, ] . . . Mr. Hemsley attended court during 2014 [in compliance with] his condition of release to attend Better Choices . . . . Mr. Hemsley returned to court on May 19, 2015, June 16, 2015, July 21, 2015, August 18, 2015, September 15, 2015, October 13, 2015, November 17, 2015, December 15, 2015, January 19, 2016, February 16, 2016, [and] March 15, 2016, with overall positive reports concerning his release from custody and his participation in the Better Choices program . . . . On May 17, 2016, Mr. Hemsley attended court, and graduated from the Better Choices program. He attended the program for a year, and made several court appearances between May 2015, and May 2016, in order to successfully graduate from this program . . . . On July 15, 2016, the defendant made an initial appearance at the revocation of pretrial release hearing . . . . On January 27, 2017, the defendant appeared at his Trial Confirmation Hearing (TCH) . . . . On May 31, 2017, Mr. Hemsley was arrested without incident by the United States Marshals Service as he was picking up his mail from his mailing address . . . . [At his Bail Review Hearing, o]n August 10, 2017, the . . . Magistrate Judge . . . did not find that he was a danger, or a flight risk, but found that he is a risk of non-appearance (8/10/2017 RT 6:23).

Def.'s Mot. 3:6, 3:11-15, 4:3-7, 4:14-15, 4:21-22, 5:2-3, 8:16- 17, 10:4-11.

         The Government counters that Defendant's repeated refusals to abide by the Court's orders and by Pretrial Services' directives favor Defendant's continued detention. The Government further argues:

On February 27, 2017, Hemsley again tested positive for marijuana. (ECF No. 294). Hemsley received [an email] notice of the April 5[, 2017] hearing [concerning his violation of his conditions of pretrial release. Hemsley] responded to the email[, ] (ECF No. 336, Exh. A)[ on March 30, 2017, and] Hemsley asserted that pretrial release was an “unlawful form of probation, ” . . . and concluded by explaining that “PTS [] in conjunction with the Magistrates constitutes a terrorist organization” and that he “will NOT bargaiin [sic] with terrorists.” (See id.). Hemsley's [then-]standby counsel indicated [counsel's] unavailability by phone for 9:15 on April 5, but [that counsel] could appear at 2 p.m. the same day or on April 7, 2017. (See id.) The hearing was re-set for the same date (April 5) at 1 p.m., but . . . Hemsley did not appear.
Hemsley claims he lost access to his email in the days between April 3, 2017, and the hearing on April 5. He knew that the hearing was set for 9:15 on April 5, and that there was some doubt as to whether it would be rescheduled. But Hemsley never attempted to call the Court, his standby counsel, the U.S. Attorney's Office, or Pretrial Services. Hemsley claims that he received notice by mail-the same notice he received by email and replied to-on the day of the hearing. But again, he failed to call the Court, the U.S. Attorney's Office, Pretrial Services, or (apparently) even his standby counsel. When Hemsley failed to appear, [the Magistrate] Judge . . . issued a bench warrant for his arrest. (ECF No. 299). In a letter to [the District] Court, mailed April 5th and apparently written before the 1 p.m. hearing that day, Hemsley did not explain his absence or state that he lost his phone. (ECF No. 301). Rather, he asserted that he needed marijuana for medical purposes, and that he began to “slowly immerse” himself in the same “healing regimen” that he had previously used-an obvious reference to marijuana. (ECF No. 301 at 3) . . . .
. . . .
. . . Hemsley[] failed to appear at the Court-ordered April 5, 2017, hearing scheduled to consider his continued violations of his pretrial release conditions by his use of marijuana products. While Hemsley claims that he was not aware of his obligation to appear at the April 5th hearing date, the Court should reject this false claim. Hemsley knew there was a court-ordered hearing on April 5 (See ECF No. 336, Exh. A), and though there was uncertainty as to whether the hearing time or date might be moved, he failed to take even the simples[t] steps to ensure his appearance. Hemsley never attempted to call the Court, his standby counsel, the U.S. Attorney's Office, or Pretrial Services, any of whom could have informed the Court as to Hemsley's absence and taken appropriate steps.
In addition, Hemsley's intent to avoid the court appearance is reflected in his refusal to self-surrender to the United States Marshals Service despite receiving warnings from both Pretrial Services Officer and the Assistant U.S. Attorney. (See ECF No 336, Exhs. B-D). Hemsley[] has previously admitted that he ignored the order to appear, explaining that he was “looking for a little more time” to attend to his business interests. (ECF No. 323 at 9:15-17). Moreover, Hemsley has produced nothing in support of his claim that he was locked out of his email, and did not raise this issue in his letter to this Court on the date of the hearing. (ECF No. 301). Instead, he decried the perceived injustice of this prosecution. In view of Hemsley's past willingness to say virtually anything to avoid custody, and in view of the lack of any admissible evidence in support of his claim, the Court should not credit Hemsley's claim that he lost his phone. Either way, a defendant should not be permitted to flout this Court's orders and procedures, and avoid the consequences thereof.
Finally, Hemsley is facing significant jail time if convicted and admitted the offense conduct in a recorded interview. He thus has a strong motivation to avoid incarceration, and has recently acted on that motivation by ignoring [the Magistrate] Judge['s] bench warrant and refusing to surrender himself. This is part of a disturbing trend of contumacy-Hemsley has grown more and more bold in his rejection of this Court's legitimacy and in the assertion of what he believes are his “God-given right to use cannabis” and his “human right” to use marijuana. The Court should not encourage his escalating confrontation, but should order him detained to ensure that he appears at trial . . . .

Gov't Opp'n 4:11-5:5, 12:14-13:11 (footnote omitted).

         The Magistrate Judge stated at Defendant's Bail Review Hearing on August 10, 2017, as follows: the detainment issue is “to determine whether or not [Defendant i]s a risk of non-appearance[; whether] he's a risk of flight . . . [i]s not the inquiry at this point.” Tr. Bail Review Hearing, Aug. 10, 2017 (“Aug. 10 Tr.”) 7:21-25, ECF No. 350. The Magistrate Judge made the following observations and findings after hearing oral arguments and reviewing the record, which included “multiple Pretrial Services['] reports”:

It appears to me that Mr. Hemsley has appeared in front of [almost] every magistrate judge in this courthouse and what [i]s interesting is that I have not been alone in trying to figure out a way to get Mr. Hemsley to recognize that he . . . was in control of his destiny because a number of the magistrate judges released him after finding him in violation, keeping him in [custody] for a while.
Mr. Hemsley would then have a change of heart about whatever caused the violation. He would apologize for, for example, use of MDMA or use of marijuana, apologize for lying about it to [the Pretrial Services Officer], apologize for lying about it to the Court. He would express his regret and ...

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