United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
before the court is defendant Richard Hemsley's May 22,
2018 motion for bail review. (ECF No. 406.) The United States
has submitted a brief in opposition. (ECF No. 411.) The court
has carefully considered the parties' briefing and the
applicable legal standards. This motion is the most recent
attempt in a long line of unsuccessful motions and appeals by
Hemsley regarding his pretrial detention status. However, he
has failed to demonstrate any changed circumstances since the
undersigned's August 10, 2017 denial of a previous
request for bail review. (See ECF No. 340.) For the
following reasons, the court denies plaintiff's current
motion and vacates the hearing scheduled for June 1, 2018.
and co-defendants John Mahan and Russell Gilmore were charged
with (1) conspiracy to manufacture marijuana plants, in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and
(2) the manufacture of marijuana plants in violation of 21
U.S.C. § 841(a)(1). (See ECF No. 1.)
January 6, 2014, Hemsley was detained and subsequently
released, subject to the condition that he not use any
controlled substances. (ECF No. 20). Later, on multiple
occasions, Hemsley tested positive for controlled substances.
(See ECF Nos. 34, 35, 36, 60, 64). As a result, on
November 18, 2014, he was remanded into custody. (ECF No.
January, April, and May of 2015, Hemsley petitioned for
release. (ECF Nos. 69, 72, 74). Hemsley claimed that he
“recognize[d] the seriousness of his
transgression” and “fully acknowledge[d] the
error of his ways.” (ECF No. 69 at 7). He promised to
“religiously attend any program” the Court
ordered him to (ECF No. 72) and “fully expressed his
remorse.” (ECF No. 74 at 6). On May 12, 2015, he was
released from custody, subject to the same condition that he
not use controlled substances. (ECF No. 78).
21, 2015, Hemsley submitted diluted urine samples. (ECF No.
87). In June of 2016, he tested positive for marijuana and
told the federally-contracted drug testing facility
“that he would no longer participate in either
outpatient substance abuse counseling or submit to urine
collection services.” (ECF No. 250). At a hearing
before the undersigned on July 15, 2016, Hemsely was
permitted to remain on pretrial release, but warned that this
was his last chance. (ECF No. 252).
February 27, 2017, Hemsley again tested positive for
marijuana. (ECF No. 294). He failed to appear at his pretrial
violation hearing on April 5, 2017, and the undersigned
issued a bench warrant for his arrest. (ECF No. 299). During
a June 1, 2017 detention hearing before Magistrate Judge
Kendall J. Newman, Hemsley admitted to using marijuana and to
understanding that marijuana use violated his conditions of
release. Hemsley was remanded into custody. (ECF No. 312.)
then requested bail review on June 19, 2017, asserting that
he would no longer use marijuana. (ECF No. 323.) After a
hearing, Magistrate Judge Allison Claire denied this request.
(ECF No. 329).
again, on July 25, 2017, Hemsley requested bail review. (ECF
No. 333). The undersigned denied this request on August 10,
2017, after two additional hearings and an “extensive
review of defendant's past behavior on release.”
(ECF No. 340).
October 10, 2017, Hemsley moved to revoke the detention order
before District Judge Garland E. Burrell, Jr. (ECF No. 351.)
Judge Burrell denied the motion (ECF No. 363) and Hemsley
appealed to the Ninth Circuit Court of Appeals. (ECF No.
March 1, 2018, the Ninth Circuit upheld Judge Burrell's
pretrial detention order, finding “that the government
has met its burden of showing, by a preponderance of the
evidence, that ‘no condition or combination of
conditions will reasonably assure the [defendant's]
appearance, ' 18 U.S.C. § 3142(e), and that
appellant therefore poses a risk of flight.” (ECF No.
383 at 3.)
22, 2018, Hemsley filed the instant motion for bail review,
which is set for hearing before the undersigned on June 1,
2018 at 2:00 pm. (ECF No. 406.) The court construes this
motion as a request to ...