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United States v. Wright

United States District Court, D. Kansas

October 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GAVIN WAYNE WRIGHT, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Gavin Wright's motion for bond. The matter has been fully briefed and the Court held a hearing on the motion on October 4, 2017. After careful consideration of the parties' arguments and all of the facts of record, the Court concludes that Wright should remain detained pending trial. Accordingly, the Court denies Wright's motion for bond (Doc. 150).

         I. Factual and Procedural Background

         On October 19, 2016, the Grand Jury charged Wright with conspiring to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2 & 2332a(a)(2)(A). On October 21, 2016, Wright waived his right to a detention hearing. U.S. Magistrate Judge Gwynne Birzer accepted the waiver and granted the Government's motion for detention. Wright has been held in custody ever since.

         The Government filed the Second Superseding Indictment on March 16, 2017. The indictment brought two new charges against Wright: conspiracy against rights in violation of 18 U.S.C. § 241, and knowingly and willfully making materially false, fictitious, and fraudulent statements to the FBI in violation of 18 U.S.C. § 1001. Wright filed this present motion for bond on September 13, 2017.[1]

         II. Jurisdiction

         This criminal case involves three defendants each charged with conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. §§ 2 & 2332a(a)(2). Defendant Allen was separately charged, in Count IV of the Second Superseding Indictment, with unlawful possession of firearms after having previously been convicted of a “misdemeanor crime of domestic violence, ” in violation of 18 U.S.C. §§ 922(g)(9) & 924(a). The Government alleges that Allen was found to be in possession of firearms after having been convicted under Section 5.10.025(a)(1) of the Wichita Municipal Code.

         On May 23, 2017, the Tenth Circuit held in United States v. Pauler[2] that a misdemeanor violation of a municipal ordinance does not qualify as a “misdemeanor crime of domestic violence” as that term is defined in the relevant statutes.[3] The following day, Allen filed a motion to dismiss Count IV for failure to state an offense. In light of Pauler, this Court granted Allen's motion to dismiss on August 14, 2017. The Government timely filed its notice of its intent to appeal this Court's order dismissing Count IV on September 12, 2017.

         The interlocutory appeal raises an interesting jurisdictional question: Does this Court have jurisdiction to continue hearing and deciding other issues while the interlocutory appeal is pending? At the hearing, the Government argued that when an appeal is taken as to a part of the case, the Tenth Circuit obtains jurisdiction only over that part of the case; the remainder of the case remains properly with the District Court. Having reviewed the relevant case law, the Court agrees.

         “The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”[4] “The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate.”[5] But an interlocutory appeal does not divest the District Court of jurisdiction to continue deciding other issues in the case.[6] Because Wright's motion for bond is unrelated to the Government's interlocutory appeal, this Court has jurisdiction to hear and decide this present matter.

         III. Legal Standards

         A detention hearing may be reopened “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 of whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person in the community.”[7] The District Court's review of a Magistrate Judge's order of detention is de novo, meaning this Court must ultimately decide the issue of detention or conditions for release without deference to the Magistrate Judge's conclusion.[8] Under the Bail Reform Act, the Court must order an accused's pretrial release, with or without conditions, unless it “finds 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.”[9] Detention can be based on a showing by the Government of either: (1) that, beyond a preponderance of the evidence, the defendant poses a risk of flight; or (2) that, by clear and convincing evidence, the defendant poses a risk to the safety of any person or the community.[10]

         “[I]n determining whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community, ” the Court must take into account the following factors:

(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence . . . [or] a Federal crime of terrorism . . .;
(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.[11]

         Congress has also created a rebuttable presumption that detention is appropriate in cases where, such as here, the defendant has been charged with certain offenses such as conspiring to use a weapon of mass destruction.[12]

         IV. Discussion

         Wright has been charged with one count of conspiring to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2 & 2332a. Under the Bail Reform Act, once probable cause has been established that certain crimes were committed, a rebuttable presumption is established that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community.”[13]

         The Act includes as “presumption” crimes any offense listed in 18 U.S.C. § 2332b(g)(5)(B) that is punishable by a maximum term of imprisonment of ten years or more.[14] The first count charged against Wright-conspiring to use weapons of mass destruction (18 U.S.C. § 2332a)-qualifies for the presumption under § 3142(e)(3)(C). Additionally, the Supreme Court has established that a grand jury indictment conclusively determines the existence of probable cause.[15] Therefore, the indictment satisfies the Government's preliminary burden to show probable cause for Wright, establishing the presumption of detention.

         “Once a presumption is invoked, the burden of production shifts to the defendant, but the burden of persuasion regarding risk-of-flight and danger to the community always remains with the government.”[16] “The defendant's burden of production is not heavy, but some evidence must be produced. Even if a defendant's burden of production is met, the presumption remains a factor for consideration by the district court in determining whether to release or detain.”[17]Regardless of whether the presumption applies, the Government's ultimate burden is to prove that no conditions of release can assure that the defendant will appear and to assure the safety of the community.[18]

         A. Wright's Burden to Rebut the Presumption of Dangerousness

         Here, Wright has satisfied his burden of producing some evidence tending to demonstrate that he is not dangerous and he is not a flight risk. Regarding Wright's flight risk, Wright pointed to the fact that he is a “life-long member[] of [his] communit[y] with substantial ties to the area.”[19] Wright has lived in Kansas nearly his entire life; he owns a business in the state, and many of his close family members live here, including two of his three children. While this evidence does not convince the Court that Wright poses no risk of flight, his burden at this stage is very light.[20] Accordingly, Wright's substantial community ties constitute “some evidence”[21]and Wright has met his burden of production.

         To show that he would not be a danger to the community if released, Wright directs the Court to his criminal history (or, more aptly, his lack thereof). Wright insists that he has no history of violence. Although he was found to be in possession of multiple firearms and ammunition, Wright argues that he was not a prohibited person at the time of his arrest and he was merely exercising his Second Amendment rights. In addition, Wright submitted an unusually comprehensive release plan designed to assure the Court that he would not violate the terms of release. Again, Wright's burden at this stage is light, and this evidence is sufficient to satisfy his burden of production.

         B. Government's Burden of Persuasion to Show Dangerousness

         The Government must produce sufficient evidence to persuade the Court, by clear and convincing evidence, that there are no conditions of release that will reasonably assure the safety of the community if Wright is released. After considering the evidence, the Court concludes that the factors set forth in 18 U.S.C. § 3142(g) weigh in favor of detention.

         1. Nature and Circumstances of the Offense Charged

         The first factor for the Court to consider is the nature and circumstances of the offense charged.[22] Wright has been charged with conspiring to use a weapon of mass destruction against people and property within the United States. Specifically, the Government alleges that Wright and his co-defendants planned to use an improvised explosive device to destroy an apartment complex and mosque in Garden City, Kansas. The complex contains more than 100 units and is home to many Muslims of the Somali refugee community. The group, known as “the Crusaders, ”[23] intended to accomplish this goal by obtaining four vehicles, filling them with explosives (made from aluminum powder and ammonium nitrate, amongst other components), and parking them at the four corners of the apartment complex to create a large explosion. Simply put, these allegations against Wright indicate a strong threat to society.

         Additionally, this factor specifically directs the Court to consider whether the charges include a crime of violence, a Federal crime of terrorism, or involve a firearm, explosive, or destructive device.[24] The charges against Wright possess all but one of those elements (the charges do not involve a firearm). Accordingly, this factor overwhelmingly weighs in favor of detention.

         2. Weight of the Evidence against Wright

         The second factor for the Court to consider is the weight of the evidence against Wright.[25] This factor also weighs in favor of detention, as the evidence overwhelmingly suggests that Wright is a danger to the community. At the hearing, the Government introduced evidence in the form of recorded conversations, text messages, and proffer of what the undercover FBI employee (“UCE”) and confidential human source (“CHS”) would testify to. In these conversations, Wright expressed extreme hatred and threatened violence against Muslims. Without going into unnecessary detail, Wright expressed his desire to kill Muslims via a variety of different methods. For example, in one meeting, a member of the Crusaders suggested that they should burn down mosques. Wright responded: “Yeah, during prayer time.” In another conversation, Wright suggested that the group go to “downtown San Antonio and just start f*cking shooting people.” “Middle Eastern people” he specified, “ ‘cause they're all over, over there, Muslim people, just start f*cking weeding ‘em out!” Additionally, Wright advocated for killing a landlord in Garden City because the landlord rented to Muslims.

         Not only did Wright make threats, but he sought to build and purchase weapons and explosives, including grenades, dynamite, blasting caps, and electronic detonation devices. During regular meetings conducted at Wright's business, G&G Mobile Home Center (“G&G”), the Crusaders purchased equipment and gathered chemicals and other materials to start making homemade explosives.

         At a July 2016 meeting, Allen exclaimed the purpose of the Crusaders' plans: “killin' people and going to prison for life.” As the conversation progressed, Wright (a former electrician) explained that he had access to dynamite that the group could use in an attack:

CHS: Can electricians really buy dynamite?
WRIGHT: Oh yeah.
CHS: I didn't know that.
Wright: Yup, I can, I can get it. I mean I don't have a ...

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