United States v. Cecrle
| Decision Date | 03 January 2014 |
| Docket Number | Case No. 2:12-cr-400-JAD-GWF |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. THOMAS A. CECRLE et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
of Changed Circumstances [Doc. 115]
Currently before the Court is Defendant Thomas Cecrle's Motion to Revoke the Detention Order and Set Bond in Light of Changed Circumstances, filed on October 3, 2013. Doc. 115. On October 15, 2013, the Government filed a Response. Doc. 120. On October 18, 2013, Defendant filed a Reply. Doc. 122. In effect, Defendant seeks to reverse District Judge Gordon's order, Doc. 100, in which he declined to revoke the detention order that Magistrate Judge Hoffman entered and later declined to reconsider. Docs. 29, 73. This is Mr. Cecrle's third effort to have his detention order revoked—an effort his Court now rejects.
On October 24, 2012, Mr. Cecrle was indicted along with five other defendants on twenty counts including Conspiracy to Commit Mail and Wire Fraud, Securities Fraud, and Conspiracy to Commit Money Laundering, to Engaging in Money Transactions with Property Derived from Specified Unlawful Activity. Doc. 1. A jury trial is currently scheduled for March 4, 2014. Doc. 109.
On November 2, 2012, Mr. Cecrle appeared before the Magistrate Judge for his initial appearance and detention hearing. Doc. 24. The Magistrate Judge found clear and convincing evidence that Cecrle is a danger to the community and a preponderance of the evidence that he is a flight risk, and ordered he be detained pending trial:
Based on the information as set forth in the government's proffer, as well as the information provided to the Court by Pretrial Services, the Court finds the defendant poses a substantial risk of danger to the community and a substantial risk of nonappearance. The defendant lacks property, financial or employment ties to the community. The defendant's prior criminal history record reflects two prior felony convictions, eight prior misdemeanor convictions, seven prior failures to appear, and two probation violations or revocations. Additionally, the Pretrial Services Report indicates that the defendant frequently uses methamphetamine socially. The Court finds there are no conditions or combination of conditions that the Court could fashion at this time that would reasonably protect the community against the risk of danger posed by the defendant or assure the defendant's appearance at future court proceedings, accordingly, the defendant is ordered detained pending trial.
On December 28, 2012, Cecrle moved to reopen his detention hearing, claiming that "new" information justified his release: (1) he had made arrangements to live in his oldest daughter's apartment in Henderson where he can help care for her one-year old child, and (2) he could also occasionally stay with his mother whose deteriorating health necessitates his help. Doc. 58 at 4. The Magistrate Judge was "not persuaded that" this information was "new and material" and denied the motion. Doc. 73 at 2-4. Cecrle appealed that decision to the district court under 18 U.S.C. § 3145(b), which allows for district court review of a magistrate judge's detention order, arguing that the community-ties information presented by the request to reopen the detention hearing show "there are circumstances that would reasonably ensure the safety of the community, as well as Mr. Cecrle's presence at any future hearings," and asking the court to 'balance these facts" against the claim that Mr. Cecrle's incarceration is complicating his access to his electronically stored discovery materials and the computers necessary to view them. Doc. 85 at 2-3.
On May 7, 2013, District Judge Gordon rejected Mr. Cecrle's challenge. Doc. 100. The Court evaluated the motion under 18 U.S.C. § 3145(b) and found that none of the information offered was truly new but, "more importantly," "these arguments and evidence and the suggestionsof less restrictive pretrial alternatives, are not persuasive." Doc. 100 at 5. This case was transferred to the undersigned on August 14, 2013, upon appointment to the district court bench.
With a new judge on the case, on October 3, 2013, Cecrle made a third run at reconsideration, retreading his § 3145(b) argument with the instant Motion to Revoke the Detention Order and Set Bond, in Light of Changed Circumstances. Doc. 115. The "changed circumstances" he points to are: his ability to reside with his daughter in her apartment in Henderson, his recent epiphany regarding "the importance of maintaining a life free from the abuse of drugs and other intoxicants" that were primarily responsible for "the 20 substance and traffic related offenses"—nine of which "involved either contempt or failures to appear," and the "disadvantage[]" that his incarceration has placed on his ability to review the discovery related to his case—which primarily consists of computer disks that must be reviewed using the detention facility's limited computer resources ands which have apparently disappeared as the facility reports it has only one disk out of the dozens that Cecrle claims were originally delivered to him. Docs. 115, 151-3.
The government opposes the motion arguing in its response brief, Doc. 120 at 7-8. This Court heard oral argument on the motion1 on December 18, 2013, and directed counsel for Cecrle and the government to contact the detention facility to determine if additional access to computers and better security for Mr. Cecrle's discovery materials can be provided. Doc. 150. Defense counsel did not contact the facility; the government did, however, and in its supplemental opposition, the government represented that the detention center "could afford the defendant up to 5 or 6 hours of terminal access per day, basing this number on representations that he requires this amount of time to review discovery," and "defendant's discovery materials can be secured by his counselor and accessed upon the defendant's request." Doc. 151 at 3.
Like his last motion that prompted Judge Gordon's Order denial of his "appeal," Cecrle's instant motion is brought under 18 U.S.C. § 3145(b), which allows a person who is ordered detained by a magistrate judge to file a motion for revocation or amendment of the order. 18 U.S.C. § 3145(b).2 He baldly asserts that he "is permitted to file this motion for revocation . . . pursuant to Title 18 U.S.C. § 3145(b)" and review the detention order "again in light of the current circumstances on a de novo basis." Doc. 115 at 6. "Most importantly," he argues, "§ 3142(i) permits the Court to temporarily release Mr. Cecrle to the custody of another person to the extent that the Court determines such release to be necessary for defense preparation, or some other compelling reason." Id.
Title 18 U.S.C. § 3142(g) requires the court to consider four factors in determining whether to detain or release a defendant: "(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 should the person be released." United States v. Chen, 820 F. Supp. 1205, 1207 (N.D. Cal. 1992). The district court's review of a magistrate judge's detention order is performed under a de novo standard of review. United States v. Koenig, 912 F.2d 1190, 1192-93 (9th Cir. 1990). "The district court is not required to start over in every case, and proceed as if the magistrate's decision and findings did not exist." Id. 1193. Instead, "[i]t should review the evidence before the magistrate and make its own independent determination whether the magistrate's findings are correct, with no deference." Id.
The district court has already once reviewed—and affirmed—the Magistrate Judge's detention order and the order denying his motion to reopen the detention hearing. Doc. 100. Having reviewed the prior proceedings and decisions in this regard de novo, this Court now finds that Mr. Cecrle's retread request fails to demonstrate that his current circumstances justify revocation or amendment of the prior detention decisions.
The primary defect in Cecrle's instant motion is that it identifies no truly new or changed circumstances that were not already known at the time of the detention order or already considered and rejected by the district court. Cecrle first touted the strength of his community ties and the potential for him to reside at his daughter's Henderson apartment in his original motion before the Magistrate Judge to reopen the detention hearing. See Doc. 58 at 4. Those considerations were not persuasive to either the Magistrate Judge or District Judge Gordon who denied Cecrle's first § 3145(b) challenge, and they have not become more persuasive with repetition or time.3
Cecrle's purported difficulties in preparing for trial are also not a new development. In his first § 3145(b) motion before Judge Gordon, Cecrle argued that he was not being "permitted access to his discovery, or the computer with which he could review it" Doc. 85 at 3. And he notes in the instant motion that he first started receiving his discovery materials a full year ago and restrictions commenced "[s]oon afterward." Doc. 115 at 5. Thus, he was well aware of these problems with his discovery materials before filing his first § 3145(b) motion. Judge Gordon apparently did not find these claims persuasive for detention revocation. Cecrle attempts to up the ante in...
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