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United States v. Gregg

United States District Court, W.D. Missouri, Southern Division

January 23, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
RICHARD T. GREGG, Defendant.

ORDER

BRIAN C. WIMES, District Judge.

Before the Court is Magistrate Judge David P. Rush's Report and Recommendation Order (Doc. #33) denying Defendant Richard T. Gregg's Motion to Revoke or Amend the Magistrate's Orders Detaining Defendant (Docs. #33 & #42). The United States filed its opposition to the Motion on December 5, 2014. (Doc. #48). The Court grants the United States' Request for Extension of Time to File Response (Doc. #47) and thus deems the opposition to the Motion to Revoke or Amend the Magistrate's Orders properly filed.

After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge Rush's findings of fact and conclusions of law. Accordingly, it is hereby

ORDERED Defendant's Motion to Revoke or Amend the Magistrate's Order Detaining Defendant (Doc. #45) is DENIED for the reasons stated in the Report and Recommendation Order and the Order denying reconsideration. (Docs. #33 & #42). It is further

ORDERED Defendants' bond is REVOKED. Defendant shall remain DETAINED pending trial in this matter. It is further

ORDERED Magistrate Judge Rush's Report and Recommendation Orders (Docs. #33 & #42) be attached to and made part of this Order.

IT IS SO ORDERED.

This matter comes before the Court upon the recommendation of the Pretrial Services Officer that Defendant Richard T. Gregg violated the conditions of his bond. For the reasons set forth below, the Court ORDERS the defendants bond REVOKED. Defendant Richard T. Gregg, is hereby ordered DETAINED pending trial in this matter.

BACKGROUND

On March 6, 2013, the undersigned United States Magistrate Judge ordered the defendant released on a personal recognizance bond. One of the conditions imposed upon his release was that he not commit any offense in violation of federal, state, or local law (Docs. 7 and 8).

On July 23, 2014, a superseding indictment was filed alleging additional charges against the defendant. Some of the charges are based upon criminal conduct alleged to have occurred since the defendant's release on bond on the original indictment. Specifically, the defendant is alleged to have made false declarations on May 14, 2013, and to have made fraudulent transfers of property on April 18 and May 24, 2013 (Doc. 26).

On August 6, 2014, United States Pretrial Services Officer Damon G. Mitchell submitted a Violation Report indicating that the post-bond charges alleged in the superseding indictment constituted a violation of the condition of the defendant's release that he not commit any new offenses (Doc. 28). The undersigned held a show cause hearing on the violation report on August 18, 2014.

DISCUSSION

Pursuant to 18 U.S.C. § 3148(b), and based on the superseding indictment, violation report, and evidence presented by the government at the hearing held August 18, 2014, the Court FINDS probable cause to believe that the defendant violated the conditions of his bond by committing the offenses of making false declarations and making fraudulent transfers of property. The Court further FINDS, based upon his conduct after release on bond, that the defendant poses a danger to the community in the form of potential economic harm, and FINDS that the defendant is unlikely to abide by any condition or combination of conditions of release.

Therefore, the Court ORDERS that the defendant's release be REVOKED and DETAINS the defendant pending trial. Pursuant to 18 U.S.C. § 3142(i)(2)-(4), the Court directs that:

The defendant be committed to the custody of the Attorney General for confinement in a corrections facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal; and
The defendant be afforded reasonable opportunity for private consultation with his counsel; and
That, on order of a court of the United States, or on request of an attorney for the government, the person in charge of the corrections facility in which the defendant is confined deliver the defendant to a United States Marshal for the purpose of an appearance in connection with court proceedings.

IT IS SO ORDERED.

Now pending before the Court is Defendant Richard T. Gregg's Motion to Reconsider the Order Detaining Defendant (Doc. 34). For the reasons set forth below, the motion is DENIED.

BACKGROUND

The defendant is under indictment on charges of bank fraud, money laundering, wire fraud, and bankruptcy fraud. The Court initially released the defendant on a personal recognizance bond on March 6, 2013. One of the conditions imposed upon his release was that he not commit any offense in violation of federal, state, or local law (Docs. 7 and 8).

On July 23, 2014, the government filed a superseding indictment alleging additional charges against the defendant, some of which were based upon criminal conduct alleged to have occurred after the defendant's release on bond on the original indictment. On August 6, 2014, United States Pretrial Services Officer Damon G. Mitchell submitted a Violation Report indicating that the post-bond charges alleged in the superseding indictment constituted a violation of the condition of the defendant's release that he not commit any new offenses (Doc. 28). The undersigned held a show cause hearing on the violation report on August 18, 2014. Based on the Violation Report and evidence adduced at the hearing, the undersigned entered an order revoking the defendant's bond and ordering him detained pending trial (Doc. 33).

On September 12, 2014, the defendant filed the pending Motion to Reconsider the Order Detaining Defendant, arguing first that the defendant's term of detention had made a "remarkable impact" on him mentally and spiritually, and deeply impressed upon him "the importance of scrupulously complying with all conditions of bond and pretrial release." Second, the defendant asserts his willingness to participate in electronic monitoring if released. Third, the defendant argues that the preparation of his case for trial will be "severely compromised" if he remains detained (Doc. 34).

In response, the government contends that the defendant should remain detained because since his August 18, 2014, detention, he has continued to engage in ongoing and additional criminal conduct, including concealing assets relevant to his bankruptcy, conspiring to remove personal property from his foreclosed home, and participating in a fraudulent real-estate scheme. The government further maintains that the defendant's offer of voluntary electronic monitoring is meaningless because electronic monitoring would not protect the public from economic harm caused by the defendant, and it would not ensure that the defendant obeys the law. The government argues, finally, that defense counsel's concerns regarding adequate trial preparation are not relevant to the question of detention (Doc. 36).

The undersigned held a two-part hearing on the defendant's Motion to Reconsider Order Detaining Defendant on October 14 and 21, 2014. At the hearing, the defendant produced witnesses, including family members and business associates, who testified that the defendant has profoundly changed due to his time in jail. In contrast, the government produced audio recordings of telephone conversations between the defendant and members of his family, in which the defendant allegedly discussed with his son the concealing of assets (including bank accounts and a vehicle) that had not been disclosed in bankruptcy, removing fixtures and other tangible property from a house that had been sold by the bankruptcy trustee, and attempting to re-purchase property sold in bankruptcy at a below-market value. The government argued that each of these acts involved criminal conduct.

At the close of the hearing, the undersigned ruled orally from the bench, rejecting the request for reconsideration of the defendant's bond based upon his agreement to participate in electronic monitoring or upon the argument that his detention would negatively affect the ability to prepare adequately for trial. The Court took under advisement the request for reconsideration on the basis of the defendant's remarkably changed attitude and behavior toward compliance with his conditions of bond.

DISCUSSION

Regarding reconsideration of the defendant's pretrial detention, the defendant has not provided the Court with new information that would justify reconsideration of the Court's earlier findings that the defendant violated his conditions of release and is a danger to the community. The defendant argued that his time in county jail has impressed upon him the importance of scrupulous compliance with the conditions of his release. The government proffered contradictory evidence, however, that the defendant has conducted continued and additional criminal activity since his detention in August. The Court further finds that there is no due process violation in the defendant's continued detention. In light of the testimony proffered and other evidence adduced at the hearing, the Court is not persuaded that it should reconsider its order of detention.

CONCLUSION

IT IS THEREFORE ORDERED that the defendant's Motion for Reconsideration of the Order Detaining Defendant is DENIED.

IT IS FURTHER ORDERED that the defendant continue to be detained pending trial.

IT IS SO ORDERED.


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