United States v. Rudolph

• Decision Date: 27 January 2022
• Docket Number: Criminal Case No. 22-cr-012-WJM
• Parties: UNITED STATES of America, Plaintiff, v. Lawrence RUDOLPH, Defendant.
• Court: U.S. District Court — District of Colorado

582 F.Supp.3d 804

UNITED STATES of America, Plaintiff,

v.Lawrence RUDOLPH, Defendant.

Criminal Case No. 22-cr-012-WJM

United States District Court, D. Colorado.

Signed January 27, 2022

Bryan David Fields, Edwin Garreth Winstead, III, Justin Bishop Grewell, Federal Agency Attorneys, U.S. Attorney's Office, Denver, CO, for Plaintiff.

Anita Margot Moss, Markus/Moss PLLC, David Oscar Markus, Markus & Markus, PLLC, Miami, FL, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR TEMPORARY RELEASE PURSUANT TO 18 U.S.C. § 3142(i) AND DEFENDANT'S MOTION TO REVOKE ORDER OF DETENTION AND REQUEST FOR HEARING

William J. Martínez, United States District Judge

The Government charges Defendant Lawrence Rudolph with one count of foreign murder in violation of 18 U.S.C. §§ 1119 and 1111, and one count of mail fraud in violation of 18 U.S.C. §§ 1341 and 2. (ECF No. 26.) On January 4, 2022, United States Magistrate Judge Kristen L. Mix ordered that the Defendant be detained pending trial. (ECF No. 23.) He is currently detained at the Denver Downtown Detention Center. (ECF No. 38 at 8.)

Currently before the Court is the Defendant's Motion for Temporary Release Pursuant to 18 U.S.C. § 3142(i) ("Motion for Temporary Release"), filed on January 6, 2022. (ECF No. 31.) Also before the Court is the Defendant's Motion to Revoke Order of Detention and Request for Hearing ("Motion to Revoke"), filed on January 17, 2022. (ECF No. 42.)

No hearing is necessary to resolve the Motion for Temporary Release and Motion to Revoke. For the reasons explained below, the Court affirms Judge Mix's detention order and finds that Defendant's request for temporary release is unavailing under the circumstances. Therefore, the Court leaves Judge Mix's January 4, 2022 detention order in place.

I. LEGAL FRAMEWORK

A. Initial Standard

The Court "shall order the detention of the [defendant] before trial" if it finds, after a hearing, "that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(1).

"Subject to rebuttal by the [defendant], it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the [defendant] as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed ... an offense under section 924(c), 956(a), or 2332b of this title." Id. § 3142(e)(3)(B).

"Once the presumption is invoked, the burden of production shifts to the defendant. However, the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government. The defendant's burden of production is not heavy, but some evidence must be produced." United States v. Stricklin , 932 F.2d 1353, 1354–55 (10th Cir. 1991).

"The facts the judicial officer uses to support a finding ... that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence." 18 U.S.C. § 3142(f)(2). As for risk of flight, the burden is preponderance of the evidence. United States v. Cisneros , 328 F.3d 610, 616 (10th Cir. 2003).

The factors the Court "shall" consider when deciding whether to grant pretrial release are:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, ...;

(2) the weight of the evidence against the person;

(3) the history and characteristics of the person, including—

(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and

(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; 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). Additionally, the presumption of detention, even if countered by the defendant with adequate evidence, "remains a factor for consideration by the district court in determining whether to release or detain." Stricklin , 932 F.2d at 1355.

B. Reopening Detention Order

If a court detains the defendant, the defendant may ask that court to revisit that conclusion under certain circumstances.

First, the defendant can argue that relevant information, not previously known, has come to light:

The [detention] hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.

18 U.S.C. § 3142(f)(2).

Second, the defendant may argue that preparation of a defense or other "compelling" circumstances justify "temporary release":

The judicial officer may, by subsequent order, 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.

Id. § 3142(i).

C. Review

"If a person is ordered detained by a magistrate judge, ... the person may file, with the [district court], a motion for revocation or amendment of the order." Id. § 3145(b). The district judge then reviews the magistrate judge's decision de novo. Cisneros , 328 F.3d at 616 n.1.

De novo review, however, does not necessarily mean holding an evidentiary hearing. Although a district court may start from scratch and take evidence, it may also review the evidence that was before the magistrate judge and make its own independent determination as to whether the magistrate judge's findings and detention order are correct. This is a matter of discretion for the district court.

United States v. Romero , 2010 WL 11523871, at *2 (D. Colo. May 17, 2010) (internal quotation marks and citations omitted).

II. BACKGROUND

Defendant was charged by complaint on December 16, 2021 and charged by a superseding criminal complaint on December 22, 2021. (ECF Nos. 1, 4.) In the superseding criminal complaint, Defendant was charged with violations of 18 U.S.C. § 1341 (mail fraud), and 18 U.S.C. §§ 1119 and 1111 (foreign murder). (ECF No. 4.)

On January 4, 2022, Judge Mix conducted a detention hearing and subsequently issued an order of detention (the "Detention Order"). (ECF Nos. 23, 37.) In the Detention Order, Judge Mix noted that the Defendant was charged with murdering his wife while on safari in Zambia, is wealthy, owns property in Mexico, has traveled extensively, and has considerable experience with firearms. (ECF No. 23 at 3.) She further noted the strength of the case against Defendant, as well as the Government's proof of "the [D]efendant's volatile personality and threats of physical harm to others, including his efforts to hire a ‘hit man’ to either scare or injure others." (Id. ) Based on the record, Judge Mix concluded that "no condition or combination of conditions of release will reasonably assure the appearance of the [D]efendant and the safety of the community." (Id. )

The next day, on January 5, 2022, a grand jury charged Defendant with violations of violations of 18 U.S.C. § 1341 (mail fraud), and 18 U.S.C. §§ 1119 and 1111 (foreign murder). (ECF No. 26.)

On January 6, 2022, Defendant filed the Motion for Temporary Release. (ECF No. 31.) The Government responded on January 10, 2022 (ECF No. 35), and Defendant replied on January 11, 2022 (ECF No. 38).

On January 17, 2022, Defendant filed the Motion to Revoke. (ECF No. 42.) The Government responded on January 20, 2022 (ECF No. 45), and the Defendant replied on the same day (ECF No. 46).

III. ANALYSIS

A. Review of Judge Mix's Detention Order

1. Whether a Presumption of Detention Applies

During the Detention Hearing, Judge Mix concluded that a rebuttable presumption of detention applied because there is probable cause to believe that the Defendant committed an offense under 18 U.S.C. § 924(c). (ECF No. 37 at 152.) In coming to this conclusion, Judge Mix relied on the language of the Bail Reform Act, § 924(c), and two cases addressing the interaction between the Bail Reform Act and § 924(c) in cases involving foreign crimes, United States v. Mehanna , 669 F. Supp. 2d 160 (D. Mass. 2009) and United States v. Lee , 206 F. Supp. 3d 103 (D.D.C. 2016). (ECF No. 37 at 153–54.)

In his Motion to Revoke, the Defendant argues that "[t]he presumption does not apply in this case because [he] has not been charged with a § 924 offense." (ECF No. 42 at 6 (citing United States v. Chimurenga , 760 F.2d 400, 405 (2d Cir. 1985) ; United States v. Payden , 759 F.2d 202, 205 (2d Cir. 1985) ).)

In response, the Government argues that the statutory presumption of detention applies because "the plain text of [ 18 U.S.C. § 3142(e)(3) ] focuses on a finding by the judicial officer, not upon the charges brought." (ECF No. 45 at 2–3 (collecting cases).) The Court agrees with the Government.

The plain language of the Bail Reform Act provides that a presumption of detention applies upon a judicial officer's determination that the necessary predicate for invoking the presumption has been established:

Subject to rebuttal by the person, it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that

...