United States v. Burket

• Jurisdiction: United States,Federal,Colorado
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKET, Defendant.
• Decision Date: 15 January 2024
• Court: U.S. District Court — District of Colorado
• Docket Number: Criminal Action 23-cr-00420-DDD

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UNITED STATES OF AMERICA, Plaintiff, v. SHAWN BURKET, Defendant.

Criminal Action No. 23-cr-00420-DDD

United States District Court, D. Colorado

January 15, 2024

ORDER DENYING DEFENDANT'S SECOND EMERGENCY MOTION FOR TEMPORARY RELEASE (ECF NO. 24)

Susan Prose United States Magistrate Judge.

On January 11, 2024, this court denied Defendant's Emergency Motion for Temporary Release to Attend Funeral Pursuant to 18 U.S.C. § 3142(i), in which the defendant sought temporary release from custody to attend his mother's funeral in Grand Junction, Colorado. ECF No. 23 (Order denying motion). Late the following afternoon, on Friday January 12, the defendant filed a second motion for emergency relief, ECF No. 24 (“Second Motion”), which has been referred to this court. In the Second Motion, the defendant asks to be released for an eight-hour period so that he can attend his mother's interment in a cemetery in Grand Junction on January 17, 2024. The relief sought in the Second Motion is opposed by the United States Attorney's Office and the U.S. Probation Office. After careful consideration of the Second Motion, the position of the U.S. Probation Office, and the entire docket, the court finds that the defendant has failed to carry his burden to show that he should be granted temporary release and DENIES the Second Motion.

I. ANALYSIS

The provision of the Bail Reform Act governing the defendant's request for temporary release states:

The judicial officer may . . . permit the temporary release of the person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person's defense or for another compelling reason.

18 U.S.C. § 3142(i) (emphasis added). “In moving for temporary release, the burden rests with Defendant to demonstrate that such release is warranted.” United States v. Wood, No. 21-385-23, 2022 WL 1689511, at *1 (W.D. Pa. May 26, 2022) (citing United States. v Wilburn, 2:18-cr-115, 2020 WL 1899146, at *2 (W.D. Pa. Apr. 17, 2020)).^[1]

As set forth in the statute, the defendant must demonstrate the presence of two factors: (1) that his temporary release is necessary for the preparation of his defense or another compelling reason, and (2) that he can be released to the custody of the United States marshal or another appropriate person. See § 3142(i); see also, e.g. United States v. Williams, 2:20-cr-81, 2020 WL 4431565, at *2 (W.D. Pa. July 31, 2020) (defendant seeking temporary release bears the burden to show both factors); United States v. Terrone, 454 F.Supp.3d 1009, 1018 (D. Nev. 2020) (same). The defendant must “present an individualized argument why temporary release is appropriate; generalized or speculative arguments are insufficient.” Williams, 2020 WL 4431565, at *2 (citing United States v. Lee, No. 19-cr-298, 2020 WL 1541049, at *6 (D.D.C. Mar. 30, 2020)). And “the relief authorized by Section 3142(i) is to be used ‘sparingly.'” United States v. Toledo Pardo, No. 2:22-CR-00151-LK, 2023 WL 4641055, at *1 (W.D. Wash. July 20, 2023) (denying prisoner's motion for a five-hour temporary release “based on his desire to attend his cousin's funeral to honor him and grieve with his family”) (quotation omitted) (emphasis added).

A. “Another Compelling Reason”

As to the first factor, the defendant does not argue that temporary release is necessary to prepare his defense, and so this court must determine whether he has established that temporary release is necessary for “another compelling reason.” The court finds that he has not.

The defendant asserts that “the death of [his] mother is a compelling reason.” Second Motion at 3 (emphasis in original). While the court is sympathetic to the defendant's situation, under the law, his personal interest is not the court's primary consideration. “[A]n examination of the defendant's dangerousness and risk of flight is appropriate when deciding a temporary release motion.” Williams, 2020 WL 4431565, at *2 (“When the court interprets ‘compelling reason', it should do so against the backdrop of the Bail Reform Act as a whole.”) (citing Wilburn, 2020 WL 1899146, at *11 (“[I]f there is anything that permeates the Bail Reform Act, it is Congress' intent that courts consider the defendant's dangerousness and risk of flight when making detention determinations. . . . It would strike the Court as odd, then, that § 3142(i)'s ‘compelling reason' prong would ignore a defendant's danger or flight risk.”)). See also, e.g., United States v. Keo, No. 22-40061-HLT, 2023 WL 7161159, at *10 (D. Kan. Oct. 31, 2023) (“In the context of analyzing release for ‘another compelling reason' under § 3142(i), courts still consider the underlying reasons for the original detention order.”); Toledo Pardo, 2023 WL 4641055, at *1 (“As with any motion to revisit detention, the original grounds for detention remain a factor in the court's analysis.”) (cleaned up).

Here, the defendant has not persuasively addressed the factors of dangerousness and risk of flight. A careful examination of these factors strongly counsels against his temporary release. The defendant is charged in the instant federal case with possession with intent to distribute fentanyl, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(vi), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). If convicted on these charges, the defendant faces penalties that include (on the possession-with-intent-to-distribute charge alone) a minimum of ten years and up to life imprisonment. The defendant is unquestionably presumed innocent of these charges, but that presumption does not negate the court's obligation to examine the record that has brought the defendant to this point. As the pending felon-in-possession charge indicates, the current federal charges are but the most recent in the defendant's lengthy criminal history.

The defendant has nine felony and fourteen misdemeanor convictions in Colorado state courts. His prior felony convictions include convictions for felony menacing-real/simulated weapon; intent to cause serious bodily injury-heat of passion; criminal conspiracy-theft (in violation of Colo. Rev. Stat. § 18-4-401); possession of burglary tools; weapons possession by a previous offender; and charges involving controlled substances, including conspiracy and possession with intent to distribute controlled substances. The court's analysis here is further informed by the fact that the majority of these state convictions, including the felony convictions, stem from conduct charged in Mesa County, Colorado (of which Grand Junction is the county seat)-the very location where the defendant seeks to be temporarily released and where he may retain connections. In evaluating the defendant's request for temporary release, the court also considers the defendant's history of non-compliance with conditions imposed by other courts. The defendant has incurred new charges while on supervision. His criminal history reflects multiple failures to appear. He has had at least five terms of probation, parole, or community corrections revoked for non-compliance.

On November 17, 2023, the defendant waived his right to contest detention in this case. ECF No. 12. The court found, by that waiver, that the presumption in favor of detention stood unrebutted and that there was “probable cause to believe defendant committed an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act[.]” Id.

Considering the totality of this information, the court finds that the proposal to allow the defendant to travel several hundred miles from his current place of confinement in Clear Creek County Jail to a site in relatively close proximity to many of his crimes of conviction- unescorted by law enforcement personnel or another person who has been vetted and approved by Pretrial Services-risks the defendant's flight and the safety of other persons in the community. The court therefore finds that the defendant has not demonstrated that attending his mother's burial service is a compelling reason warranting temporary release under § 3142(i). See, e.g., Wood, 2022 WL 1689511, at *1 (finding that attending an aunt's funeral was not a compelling reason under § 3142(i) where the defendant was charged with a drug trafficking offense carrying a term of not less than ten years and up to life imprisonment; had a history of prior drug-related and firearms offenses; had committed multiple new offenses while on bail or probation; and had a history of failures to appear for court); United States v. Esquibel, No. 1:15-cr-02731-JCH, 2023 WL 6481140, at *1-2 (D.N.M. Oct. 5, 2023) (in denying defendant's request for a ten-hour release from custody to attend his father's funeral, recognizing that “many detained defendants lose loved ones while in custody,” and holding that “[t]emporary release to attend funerals would drastically increase the use of § 3142(i) and is not a ‘compelling' reason that justifies temporary release under that statute”).^[2]

B. “Another Appropriate Person”

The court further finds the defendant has failed to establish that he has satisfied the second factor of § 3142(i) that he will be released to the custody of “another appropriate person.” The defendant's brother, his proposed escort on the approximately 400-mile round-trip between Georgetown, Colorado (the location of Clear Creek County Jail) and Grand Junction, may be well-intentioned, responsible, and may indeed have “no criminal history.” Second Motion at 2. But he has not been vetted by Pretrial Services and, given the timeframe in which the defendant compels this court to act,^[3] there is not time...