United States District Court, E.D. California
ORDER DENYING DEFENDANT'S MOTION FOR REVOCATION
OF THE MAGISTRATE JUDGE'S DETENTION ORDER
Garland E. Burrell, Jr. United States District Judge
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.
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
Id. (citation omitted).
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).
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
 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
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.
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
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).
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
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 ...