U.S. v. Barnett, CRIM. 97-60033.
| Decision Date | 17 September 1997 |
| Docket Number | No. CRIM. 97-60033.,CRIM. 97-60033. |
| Parties | UNITED STATES of America v. Richard D. BARNETT (001), Virgil R. Drake (002). |
| Court | U.S. District Court — Western District of Louisiana |
Terry Hart, Akin Gump, Hauer & Feld, Dallas, TX, Kraig T. Strenge, Lafayette, LA, for Richard D. Barnett.
C. Michael Hill, Laborde & Neuner, Lafayette, LA, Patrick J. Hanna, Rabalais Hanna & Hays, Lafayette, LA, for Virgil R. Drake.
Howard Parker, U.S. Attorney's Office, Lafayette, LA, for U.S.
RULING ON GOVERNMENT'S MOTIONS FOR PRETRIAL DETENTION
The government seeks pretrial detention of both defendants under the Bail Reform Act of 1984 ("the Act"). The Act requires the court to consider a number of factors in deciding whether there are conditions of release which "will reasonably assure the appearance of the [defendants] and the safety of any other person and the community." 18 U.S.C. § 3142(e).
Following a detention hearing on August 27, 1997, I ordered Drake released on a $500,000 secured bond, with stringent conditions of release. A stay of the release order was entered pending review by the district judge. The issue of Barnett's release was taken under advisement on September 2, 1997.
This ruling supplements the oral reasons given for Drake's release, and sets forth findings and conclusions as to Barnett's bail eligibility pending trial.
Supporting the government's motion for detention of defendants is the nature of the crime charged (attempted murder for hire), and the weight of the evidence.
Supporting the defendants' request for pretrial release are their clean records, close family ties, employment histories, length of residence in the community, past conduct, financial resources, community ties, and absence of any history of alcohol or drug abuse. Most important, both defendants have close, qualified family members willing to post their homes and other real or personal property as security for a bail bond.
The final factor, the nature and seriousness of the danger to the purported targets of the hit, weighs in favor of release in Drake's case, and in favor of detention in Barnett's case.
After carefully considering the evidence presented at four hearings, I conclude that there are conditions of release which will reasonably assure the appearance of both defendants and the safety of the community.
The court has the authority to require defendants and their sureties to execute not only an "Appearance Bond," but an "Appearance and Compliance Bond." Such a bond provides that the failure to appear or to comply with any condition of release, including the condition that the defendant not commit any offense while on release, will result in forfeiture of the bond. Compliance with these conditions can be assured by requiring close family members of each defendant to post their homes or other property as security for $500,000 bonds.
In Barnett's case, the bond securities will include his mother's mobile home, and his sister and brother-in-law's family home and 2 1/2 acres of property. In addition, all of Barnett's financial assets will be posted as security for the bond.
In Drake's case, the bond securities will include Drake's family home, an additional tract of rural property, and his son's home in Baton Rouge.
The defendants are charged in a two-count indictment as follows:
CHARGE MAXIMUM SENTENCE
COUNT I
Conspiracy to travel and Up to five years in prison
cause another to travel in or a fine of $250,000, or
interstate commerce with both; plus a term of supervised
the intent that murder for release of up to 3
hire be committed. 18 years; plus a $100 special
U.S.C. § 371 and § 1958 assessment
COUNT II MAXIMUM SENTENCE
Interstate travel and use of Up to ten years in prison
interstate facilities with intent or a fine of $250,000, or
that murder for hire both; plus a supervised release
be committed. 18 U.S.C. term of up to 3 years
§ 1958. plus a $100 special assessment
The government contends that on July 10, 1997, while in Belize City, Belize, Barnett met with a person he believed to be a hit man to negotiate the murder of Ernest Parker and Logan Nichols.1 In fact, the "hit man" was a confidential informant (CI) who recorded the conversation and turned it over to the FBI. The FBI recorded all of the meetings and telephone calls thereafter between the CI, Barnett, and co-defendant Virgil R. Drake, who allegedly helped Barnett facilitate the scheme in the United States.
The government contends that on July 11 or 12,2 Barnett gave the CI a piece of paper containing Drake's telephone number and instructions to speak in code. On July 12, Barnett returned to Houston from Belize. On July 17, the Belize CI received a package from Barnett containing $2,000 in expense money. Barnett called the CI several days later to confirm his receipt of the money. On July 28 the CI left a telephone message at Drake's residence, advising him that the hit men would be arriving on July 30 or 31. On July 31 the CI traveled to Lafayette, La. and was joined by an FBI undercover agent posing as a second hit man.
On August 1, Drake met the CI and the undercover agent (hereinafter referred to as "the CIs" for sake of brevity) at a Lafayette hotel and gave them two packages containing the addresses and other information regarding Parker and Nichols. Later that morning, Barnett telephoned the CIs and set up a meeting in Orange, Texas for that afternoon. At the meeting, Barnett paid the CIs $5,500 in cash for the murders of Parker and Nichols. At approximately 6:00 p.m. that day, Drake drove the CIs by Parker's house in Lafayette.
Soon thereafter Barnett and Drake were arrested.
Barnett was arrested in Houston on August 5, 1997 on a criminal complaint. He waived a detention hearing in Texas and was transported by the Marshal to this district for further proceedings. The duty magistrate, Magistrate Judge Pamela A. Tynes, scheduled a bail hearing and a preliminary examination for August 18. Prior to that date, however, the indictment was returned and the case was assigned to District Judge Tucker L. Melançon and myself for all future proceedings.
Barnett appeared before me for an initial appearance, arraignment, and bail determination on the indictment on August 21, 1997. The government moved for pretrial detention on grounds that Barnett was both a danger to persons in the community, and a flight risk. A detention hearing was held over the course of three days: August 21, August 27, and September 2, 1997. Following the first detention hearing, I listened in camera to certain audiotapes the government obtained during its investigation of the case.
At the conclusion of the third detention hearing I took the bail determination under advisement.
Drake was arrested at work without incident on August 5, 1997, pursuant to the criminal complaint. A detention hearing was held on August 12 before Magistrate Judge Tynes. The government called no witnesses. It simply requested the court to take judicial notice of the affidavit of FBI Agent Jean St. Pierre, Jr. supporting the criminal complaint, and of the report recommending detention by Pretrial Services Officer Marc Coleman.
Drake called two witnesses to testify: Mr. Coleman and FBI Agent St. Pierre. At the conclusion of the hearing, Judge Tynes remarked that, "This case is particularly troubling in the fact that there is no apparent or detected motive apparent from the face of the record at this point."3 Judge Tynes noted that Drake's past history was nonviolent and noncriminal, but she concluded that the violent nature of the crime charged, the weight of the evidence, and the nature and seriousness of the danger posed by his release weighed in favor of detention.
Judge Tynes stated, "If further evidence should come out that is new that hasn't been brought to my attention, the statute provides the defendant can file a Motion for Reconsideration of this bail determination."4 An order of detention was entered upon the following written findings:
I find that the credible testimony and information submitted at the hearing establishes by clear and convincing evidence that the safety of certain persons in the community cannot be reasonably assured by conditions of release. Factors in support include: (1) The charged offense is a serious crime of violence precipitated by an unknown motive; (2) the weight of the evidence is substantial and compelling; (3) Although defendant's past history and conduct seems to indicate a non-violent, noncriminal nature, his involvement in the charged offense entirely negates and supersedes his past behavior; (4) The nature and seriousness of the danger posed by his release is established by the nature of the crime charged, "murder for hire", and the weight of evidence noted above.
(Order of Detention Pending Trial, 8/12/97).
The grand jury returned the instant indictment on August 15, three days after Magistrate Judge Tynes ordered Drake detained on the complaint. On August 22, Drake came before me for an initial appearance and arraignment on the indictment. The government objected to the court holding another detention hearing, arguing that Magistrate Judge Tynes' order should remain in effect unless Drake moved for reconsideration on the basis of new evidence, or filed an appeal under 18 U.S.C. § 3145(c). The objection was overruled because the indictment was a new charging document and it differed in material respects from the preceding complaint. Consequently, I found Drake was entitled to a new bail determination. Upon the government's request, however, the detention hearing was continued to August 27.
At Drake's detention hearing on August 27,...
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