United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
Lawrence R. Leonard United States Magistrate Judge
This
matter comes before the Court on the United States of
America's ("the Government") Motion for
Detention (ECF No. 15). Therein, the Government seeks the
detention of the Defendant Anthony Tyrone Darden ("the
Defendant") pending resolution of a Petition for
Supervised Release dated April 10, 2018.
By way
of brief background, on September 19, 2008, the Defendant was
sentenced to a term of incarceration to be followed by three
years of supervision. The Defendant's term of supervised
release began on April 20, 2015. On or about April 6, 2018,
the Defendant's probation officer submitted a Petition on
Supervised Release, which was entered by the Court on April
10, 2018 alleging that the Defendant violated the terms and
conditions of his release. The Defendant is alleged to have
violated the mandatory condition prohibiting the commission
of any federal, state or local offense by virtue of his being
charged with two felony and two misdemeanor offenses arising
out of an alleged domestic violence incident that occurred on
March 20, 2018 involving the Defendant's ex-girlfriend
(and mother of his three minor children.)[1] The Defendant is
also alleged to have violated the condition that he abstain
from the use of marijuana pursuant to his voluntary oral
admission of such use to his probation officer.
On
April 10, 2018, following presentation of the Petition on
Supervised Release, an arrest warrant was issued for the
Defendant. The Defendant's probation officer contacted
the Defendant and directed him to turn himself in on Monday,
April 16, 2018. Defendant complied with the probation
officer's instruction and on April 16, 2018, the
Defendant appeared in custody with his attorney, Rodolfo
Cejas, Assistant Federal Public Defender, before the
undersigned for an initial appearance on the Petition for
Supervised Release Revocation. The Government was represented
by Andrew Bosse, Assistant United States Attorney. The Court
was advised that the Newport News Police Department had
outstanding arrest warrants for the Defendant arising out of
the March 20, 2018 incident involving the Defendant's
ex-girlfriend. Notwithstanding the existence of the
unexecuted state arrest warrants, the Government did not move
for detention at this initial appearance. Instead, the
Government advised that it was amenable to the
Defendant's release on bond so long as the Defendant
surrendered to the Newport News court on the outstanding
warrants obtained by the Newport News Police. Consequently,
the Court ordered Defendant's release with the requested
condition.
A
representative from the United States Marshal's Office
("the USM") was recognized by the Court and she
advised that prior to releasing a defendant on bond who has
outstanding warrants from other agencies/jurisdictions, the
USM is required to contact the other agency/agencies to
determine whether they will elect to obtain custody of the
defendant from the USM or if the USM are free to release him
or her. Based on that information, and with no objection from
Mr. Cejas, the Court set a conditional bond, such that the
USM would give the Newport News Police Department the
opportunity to take custody of the Defendant, and if they
declined such offer, then the Defendant would be released on
a bond with conditions, including the requirement that he
surrender on the warrants by April 20, 2018. Contrary to
earlier representations that the Newport News Police were not
willing to pick up Defendant on the outstanding warrants,
when the USM contacted the Newport News Police, they did
agree to pick up the Defendant, and he was released to that
authority, who subsequently ordered him held without bond on
the state charges.
On
April 30, 2018, two weeks after the Court ordered the
Defendant's release on bond, the Government filed a
Motion for Detention (ECF No. 79), seeking the
Defendant's detention. The matter was set in for a
preliminary hearing and detention hearing. On May 3, 2018,
the Defendant appeared with counsel Amanda Conner, Assistant
Federal Public Defender ("Ms. Conner") and Dee
Sterling, Assistant United States Attorney ("Ms.
Sterling") appeared on behalf of the Government. The
Court began with the preliminary hearing at which time the
Government called the Defendant's probation officer as
its only witness. Upon consideration of the testimony of the
Defendant's probation officer, as well as the proffers
and arguments of counsel, and the contents of the Petition,
the Court found sufficient probable cause to believe that the
Defendant violated the conditions of his supervised release
as stated in the Petition. The Court's findings were
memorialized in a separate Order. See ECF No. 81.
The Court next considered the Government's Motion for
Detention (ECF No. 79), which is the subject of the instant
Opinion and Order.
Under
the Bail Reform Act, a detention hearing "shall be held
immediately upon the [Defendant's] first appearance
before the judicial officer unless that person, or the
attorney for the government, seeks a continuance." 18
U.S.C. § 3142(f). The requirement that a detention
hearing be held upon the defendant's first appearance,
unless either he or the government seeks a continuance, is
known as "the first appearance rule." United
States v. Holloway, 781 F.2d 124 (8th Cir. 1986). In
Holloway, the Government agreed not to seek
detention and to release conditions which required defendant
to post a $250, 000 bond. Once it became apparent that
defendant could meet the bond conditions, the Government
moved for his detention. The Eighth Circuit considered the
question:
whether, under the Bail Reform Act of 1984, 18 U.S.C. §
3142, the government may request bail at the defendant's
first appearance before a judicial officer, then change its
mind and request detention at a subsequent appearance before
that same officer when the only evidence to come to light
during the interim is that the defendant has a greater net
worth than originally supposed.
781 F.2d at 124. Answering the question in the negative, the
court held that the plain reading of the statue required, in
the absence of a continuance, a detention hearing be held at
defendant's first appearance, not his second.
Id. at 126.
Here,
the Government did not move for detention at the
Defendant's initial appearance on April 16, 2018, and did
not seek a continuance for such a hearing, but instead
advised that it was amenable to bond provided the Defendant
surrendered himself to Newport News authorities pursuant to
the outstanding state warrants. Consequently, the Court
ordered the Defendant's release with the requested
condition. It was only two weeks later, on April 30, 2018,
that the Government moved for the Defendant's detention.
Under the "first appearance rule, " however, the
Government was required to move for detention at
Defendant's initial appearance. Holloway, 781
F.2d at 126. Having failed to do so, the Government's
Motion for Detention now is untimely.[2]
At the
May 3rd hearing, the Government argued that a material change
in circumstances necessitated it moving for detention at this
juncture of the proceedings. Section § 3142(e)(2)
provides that a hearing may be reopened at any time before
trial if
the judicial officer finds that information exists that was
not known to the movant at the time of the hearing and that
has a material bearing on the issue whether there are
conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.
18 U.S.C. § 3142(e)(2). However, since there was never a
detention hearing in the first place, there is no hearing to
"reopen." Alternatively, if material new evidence
regarding a defendant's risk of flight or danger to
others or the community does come to light after a
defendant's first appearance, a belated motion for
detention might be considered under that circumstance.
See Holloway, 781 F.2d at 128-29 ("We do not
doubt that in the exceptional instance when a magistrate
[judge] has made a decision to release and subsequently
evidence comes to light which could not reasonably have been
brought in at the first appearance, and that evidence
indicates a strong likelihood that the defendant is a flight
risk or a danger to the community, the magistrate [judge] or
the district court would have the power to order detention
under § 3142(e), regardless of the fact that the time
for a § 3142(f) hearing had passed."). However,
this avenue for the Government is also closed based on the
absence of any such new information. At the May 3 hearing,
the only change in circumstances proffered by the Government
was its confirmation that Newport News did intend to
prosecute the Defendant on the state felony charges. The
Government proffered no new evidence which bore on
Defendant's risk of flight or danger to the community
which was not already presented in the Petition for
Supervised Release or otherwise available at Defendant's
first appearance. A state prosecutor's declaration of
intended prosecution is hardly the type of new information or
change in circumstances that reflects on the Defendant's
risk of flight or potential dangerousness to others or the
community. Consequently, the Government's Motion for
Detention, ECF No. 79, must be DENIED.
The
Clerk is DIRECTED to forward a copy of this Opinion and Order
to the United States Attorney, the United States Marshal, the
United States Probation ...