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United States v. Hemsley

United States District Court, E.D. California

May 31, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD HEMSLEY, Defendant.

          ORDER

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         Pending 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.

         RELEVANT BACKGROUND

         Hemsley 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.)

         On 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. 64).

         In 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).

         On July 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).

         On 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.)

         Hemsley 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).

         Yet 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).

         On 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. 366.)

         On 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.)

         On May 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 ...


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