U.S. v. Hammond, 01-CR-108.

• Decision Date: 13 May 2002
• Docket Number: No. 01-CR-108.,01-CR-108.
• Citation: 204 F.Supp.2d 1157
• Parties: UNITED STATES of America, Plaintiff, v. Scott HAMMOND et al., Defendants,
• Court: U.S. District Court — Eastern District of Wisconsin

204 F.Supp.2d 1157

UNITED STATES of America, Plaintiff, v. Scott HAMMOND et al., Defendants,

No. 01-CR-108.

United States District Court, E.D. Wisconsin.

May 13, 2002.

COPYRIGHT MATERIAL OMITTED

Carol L. Kraft, for Plaintiff.

Nila J. Robinson, Appleton, WI, for Defendants.

DECISION AND ORDER

ADELMAN, District Judge.

I. BACKGROUND

Before me is the government's motion pursuant to 18 U.S.C. § 3145(a)(1) to revoke Magistrate Judge Patricia A. Gorence's April 15, 2002 order releasing defendant Scott Hammond on $135,500 bail and other conditions. Defendant is charged, along with five other alleged members of the Outlaws Motorcycle Club, with racketeering and drug-related offenses. He was arraigned on June 11, 2001, and temporarily detained. On June 19, 2001, Judge Gorence held a detention hearing at which the government requested detention. However, Judge Gorence decided that defendant could be released if $150,000 bail was posted and other conditions met. The government did not appeal the release order, but defendant was unable to raise bail and has remained in custody.

Defendant subsequently moved to modify the bail, and on April 11 and 15, 2002, Judge Gorence held an evidentiary hearing on the motion. Defendant proposed that the bail be reduced to $135,500 and that security be posted by various individuals as follows:¹ Gary and Wanda Fonk — $9,700 (property); John Tapplin — $33,800 (property); Timothy Titus — $32,000 (cash); Tim and Karen Bergsbaken — $40,000 (property); and Rick and Carol Sands — $20,000 (property); for a total of $135,500.

At the hearing the posters were questioned about a variety of matters including their relationship with defendant, their connection to the Outlaws, whether they were promised reimbursement if their assets were forfeited, their ownership of motorcycles, and their attendance at events for motorcyclists. See United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966).²

Gary Fonk testified that he had known defendant for four or five years and that his wife and defendant's wife are best friends. He acknowledged having attended events at the Outlaws' clubhouse in Park Falls, Wisconsin but denied having talked to any Outlaw about posting bail for defendant or having been promised that the Outlaws would reimburse him if his property were forfeited. Wanda Fonk testified that she sees defendant's wife once a week and talks to her about twice a week. She also denied discussing the matter of defendant's bail or the possibility of reimbursement with any Outlaw.

John Tapplin testified that he had known defendant for some time. He denied that he was an Outlaw or that the Outlaws had suggested that he post bail for defendant or promised to reimburse him if his property were forfeited. He stated that he was a member of the Association of Recovering Motorcyclists ("ARM"), a group of motorcyclists who no longer use drugs or alcohol.

Timothy Titus testified that he had never met defendant but had heard about his situation through friends. He stated that he had not been asked to post bail or been promised reimbursement if bail were forfeited. He explained that he decided to post bail because it didn't seem right that a married man with a family be sitting in jail. Doreen Titus testified that she did not know defendant but was wiling to go along with her husband, and had no expectation of reimbursement in the event of forfeiture.

Tim Bergsbaken testified that he had met defendant twice, and that his brother Bruce asked him to post bail for defendant. (Apparently the government objected to Bruce posting bail because he was associated with the Outlaws.) Bergsbaken stated that he did not expect to be repaid if the bail were forfeited. Karen Bergsbaken testified that she agreed to post bail after discussing the matter with her husband and Bruce, and that to her knowledge Bruce had been friends with defendant for many years.

Rick Sands testified that he did not know defendant but was a friend of defendant's friend, Dave Ulrich — an Outlaw. Sands testified that he provided bail after Ulrich suggested it and after talking to his wife because defendant needed to provide for his family. He testified that he did not expect to be reimbursed if his property were forfeited. Carol Sands testified that she was going along with her husband.

The government then called Special Agent Sandra Devalkenaere of the Bureau of Alcohol, Tobacco and Firearms, who testified that the Outlaws often raised money for members who had been arrested and had a code requiring assistance to members who ran from the law. However, she could not state that any of the funds or property proffered in defendant's case came from Outlaws or that any promises of reimbursement had been made. She also testified that about a year before defendant was arrested she approached him about the Outlaws investigation and advised him that "he was looking at charges." (Apr. 15, 2002 Tr. at 163) Defendant did not flee thereafter.

At the close of testimony Judge Gorence granted defendant's request to reduce the bail to $135,500 and also required as conditions of release that defendant be subject to electronic monitoring, restrictions on travel, random urine tests, regular reporting to Pre-Trial Services, and that he not associate with members of the Outlaws.

The government requested a stay of the release order pending appeal to this court and subsequently moved that the order be revoked. I granted the stay and now consider the request for revocation.

The government makes three arguments. First, it contends that defendant is a danger to the community. It states that defendant is charged with serious offenses and with being a member of a criminal enterprise that has committed violent crimes. Second, the government argues that defendant is a flight risk. It claims that other members of the Outlaws have fled or absconded and that there are many Outlaws chapters in the United States and Europe, whose members are expected to harbor fugitive "brothers." Third, the government claims that the bail is insufficient, that defendant's ties to the posters are inadequate to assure his appearance, and that there is circumstantial evidence that the posters will be reimbursed by the Outlaws in the event of a bail forfeiture.

II. DISCUSSION

A. Applicable Legal Standards

1. Bail Standard

A defendant charged with an offense may be released on personal recognizance, released on conditions, temporarily detained to permit revocation of conditional release, or detained. 18 U.S.C. §§ 3142(a) & (e). Release may be denied only when there are no conditions that will reasonably assure the appearance of the defendant and the safety of the community. 18 U.S.C. § 3142(e); United States v. Chen, 820 F.Supp. 1205, 1207 (N.D.Cal. 1992). "Only in rare circumstances should release be denied, and doubts regarding the propriety of release should be resolved in favor of release." Id. (citing United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir.1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir.1985)).

In determining whether there are conditions of release that will reasonably assure the appearance of the defendant and the safety of the community, the court considers: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against the person; (3) the history and characteristics 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. 18 U.S.C. § 3142(g). The court may also inquire into the source of the property offered as collateral to secure a bond and decline to accept property that will not reasonably assure the appearance of the defendant as required. 18 U.S.C. § 3142(g)(4).

If the judicial officer finds probable cause to believe that the defendant committed a drug offense for which the maximum penalty is ten years or more of imprisonment, a rebuttable presumption arises that no condition(s) will reasonably assure the appearance of the defendant and the safety of the community. 18 U.S.C. 3142(e). An indictment charging such an offense is sufficient to trigger the presumption. United States v. Dominguez, 783 F.2d 702, 706 n. 7 (7th Cir.1986). The presumption shifts the burden of production to the defendant to come forward with some evidence that if released he will not flee or endanger the community. United States v. Portes, 786 F.2d 758, 764 (7th Cir.1985). "The burden of production is not a heavy one to meet . . . ." Dominguez, 783 F.2d at 707. "Any evidence favorable to a defendant that comes within a category listed in § 3142(g)" can suffice. Id. Once rebutted, the presumption nevertheless remains in the case as an evidentiary finding militating against release, but the ultimate burden of persuasion rests with the government. Id.

2. Standard of Review of Decision of Magistrate Judge

When the decision of a magistrate judge is appealed to the district court under section 3145(a), the district judge conducts a de novo review. Portes, 786 F.2d at 761; United States v. Jones, 804 F.Supp. 1081, 1086 (S.D.Ind.1992). The judge may "start from scratch" and hold a new hearing or review the transcripts of the proceedings before the magistrate. United States v. Torres, 929 F.2d 291, 292 (7th Cir.1991). Because the magistrate judge conducted detailed evidentiary hearings in this case, and because the parties have not requested that I take additional testimony,³ I will review the transcripts in making my decision.⁴

B. Effect of June 19, 2001 Decision

At the original June 19, 2001 detention hearing Judge Gorence concluded that defendant had rebutted the presumption of detention and that there were conditions that would allow his release. She thus set bond at $150,000 and imposed certain additional conditions.

The government did not appeal Judge Gorence's original release...