United States District Court, D. Alaska
HONORABLE TIMOTHY M. BURGESS, JUDGE.
PROCEEDINGS:
ORDER FROM CHAMBERS
The
matter is before the Court on Defendant Craig King's
Motion to Revoke Order of Detention (the
“Motion”).[1] In his Motion, King requests that this
Court “revoke the Magistrate's Order of Detention
and direct the magistrate to determine conditions of release
for [King] under the Bail Reform Act.”[2] The United States
opposes the Motion.[3] Oral argument was held on November 4,
2019. At oral argument, King requested that the Court vacate
the Magistrate Judge's prior detention
order[4] and direct the Magistrate Judge to hold a
rehearing on the issue of bail. The matter is now ripe for
resolution.
In
support of his Motion, King argues that the detention order
inaccurately reflects King's criminal history and that
the United States has failed to prove
dangerousness.[5] King also alleges that there was an ex
parte communication between the United States and the
Magistrate Judge during a detention hearing on May 13,
2019.[6] King cites a case that suggests such
ex parte communications are improper.[7] In Response, the
United States argues that King's motion is untimely, that
King's allegations that the Magistrate Judge inaccurately
interpreted King's criminal history was incorrect, that
no improper ex parte communications occurred, and
that on the proffered evidence, King presents a flight risk
and a danger to the public.[8]
As a
threshold matter, the Court exercises its discretion to
entertain the Motion despite its being
untimely.[9] Turning to the allegations of ex
parte communications, the Court has carefully reviewed
the audio recording of the May 13, 2019 hearing cited by
King, as well as the audio recordings of King's two other
bail review hearings. At no point in the audio recordings of
those three hearings was there a break in proceedings or
ex parte communications between the United States
and the Magistrate Judge. After the November 4, 2019 oral
argument, Defense Counsel also investigated the merit of
their allegations.[10] On Defense Counsel's own review of
audio recorded proceedings before the Magistrate Judge, they
found that no ex parte information was shared with
the Magistrate Judge during King's previous bail
hearings.[11] Defense Counsel now withdraw their
unsupported representations to the Court and strike the
allegations of ex parte communications from
King's underlying Motion.[12]
In
considering the merits of King's claim that detention is
inappropriate in his case, the Court applies a de
novo standard of review of the Magistrate Judge's
detention order under 18 U.S.C. § 3145(b).[13] Title 18
U.S.C. § 3142(f) provides that the judicial officer must
hold a hearing to determine whether any condition or
combination of conditions will reasonably assure the
appearance of a defendant and the safety of any other person
and the community.[14] To make its finding, the Court considers
the factors listed in § 3142(g), including: (1)
“the nature and circumstances of the offense charged,
” (2) “the weight of the evidence against the
person, ” (3) “the history and characteristic of
the person, ” and (4) “the nature and seriousness
of the danger to any person or the community that would be
posed by the person's release.”
Here,
the Court finds by a preponderance of the evidence on the
record that King poses a flight risk. First, King is charged
with most serious offenses: VICAR conspiracy, VICAR
kidnapping, VICAR assault, and VICAR murder.[15] He faces a
sentence of life in prison.[16] Second, the evidence weighs
against King. The United States has proffered evidence it
plans to bring against King including witnesses who will
testify he participated in the conspiracy against the victim
and corroborating cell phone data and records. Third, while
King proffers family ties to the community but King's
personal history shows that he is a risk of flight. He has
failed to appear for court proceedings multiple times, even
in misdemeanor cases where the stakes were much lower than
those he currently faces.[17] On other occasions, King has
failed to obey court-imposed restrictions. Considering these
§ 3142(g) factors-particularly, the first, second, and
third factors-the Court finds “no condition or
combination of conditions will reasonably assure the
appearance of” King if he is released.
The
Court has also reviewed the record for evidence to support
detaining King as a danger to the community under §
3142(f). “The facts the judicial officer uses to
support a finding pursuant to subsection (e) that no
condition or combination of conditions will reasonably assure
the safety of any other person and the community shall be
supported by clear and convincing
evidence.”[18] In light of the circumstances, evidence
of the crimes charged, and evidence of King's affiliation
with the Hells Angels, King presents at least some danger to
the community. However, based on the record before the Court,
the United States has not yet established the danger by a
clear and convincing standard and the United States did not
proffer any additional evidence at oral argument.
Nonetheless, the Court finds that King poses a sufficient
flight risk to justify detention.
Accordingly,
King's Motion at Docket 288 is DENIED.
King has moved for bail review on three previous
occasions[19] If he moves for another bail review,
King should be prepared to present new evidence or a change
in his circumstances.
Entered
at the direction of the Honorable Timothy M. Burgess, United
States District Judge.
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Notes:
[1] Dkt. 288 (Motion).