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United States of America v. James Douglas Nichols

March 17, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES DOUGLAS NICHOLS, DEFENDANT.
IN RE THE MATTER OF MATERIAL WITNESS, JASON ALLEN TIKO.



Eastern District of Texas-Sherman Division 4:09cr222(2)

ORDER

This case arises on the arrest of Jason Allen Tiko ("Tiko"*fn1 ), a Chandler, Arizona resident and purported material witness for James Douglas Nichols, the defendant in the above-captioned Texas case. Tiko was arrested in Phoenix on Tuesday, March 8, 2011, as a result of Defendant Nichols' February 10, 2011 Unopposed Motion to Have Witness Detained pursuant to 18 U.S.C. § 3144 and subsequent material witness arrest warrant. (Doc. 153 in 4:09cr222(2)*fn2 ) The Unopposed Motion alleges that Tiko "will be 1 needed as a [defense trial] witness on February 22, 2011." (Id. at 1) On February 11, 2011, 2 the Honorable David Folsom, Chief United States District Judge for the Eastern District of 3 Texas-Sherman Division, granted the Motion without opposition and signed an order 4 authorizing the arrest of Tiko who "shall be transferred to this District upon being taken into 5 custody for prompt testimony." (Doc. 166) Defendant Nichols' jury trial was set to begin 6 only three days later. (Doc. 115) 7 Because of a material change in circumstances since the material witness arrest 8 warrant was entered, and for the reasons set forth herein, Tiko was ordered released by the 9 undersigned Magistrate Judge on Friday, March 11, 2011, with a bag and baggage hearing set for Monday, March 14, 2011 at 11:00 a.m. to allow adverse counsel time to seek an appeal and stay of the Court's March 11, 2011 release order. Because no stay was entered, Tiko was released from custody on March 14, 2011, with the single condition that he appear in the United States District Court for the Eastern District of Texas-Sherman Division as required. The Court indicated when Tiko was released that a detailed order would follow. This is that order.

I. Background

On October 28, 2009, a criminal complaint was filed against Defendant Nichols and another defendant in the United States District Court for the Eastern District of Texas-Sherman Division, charging them with a serious drug trafficking offense. (Doc. 1) Upon his arrest, Defendant Nichols was appointed CJA counsel and subsequently detained pending trial. (Doc. 16) On November 13, 2009, Defendant Nichols and an alleged co-conspirator were indicted for Conspiracy to Possess with Intent to Distribute Heroin Resulting in Death. (Doc. 20) On May 10, 2010, new counsel, Donald Lee Bailey, was appointed for Defendant Nichols. (Doc. 59) After numerous pretrial motions and trial continuances, the trial was reset from November 15, 2010 to February 14, 2011 in Sherman, Texas. (Docs. 35, 66, 71, 115)

In anticipation of the February 14, 2011 trial, Defendant Nichols' Texas counsel filed an Unopposed Motion on February 10, 2011 to have Tiko arrested as a material 1 witness for Nichols' trial as authorized by 18 U.S.C. § 3144. (Doc. 153) Defense counsel 2 represented that "Mr. Titko (sic) is living in a homeless shelter somewhere in the Phoenix, 3 Arizona area and is reported to be an alcoholic by family members." (Id. at 1) Defense 4 counsel claimed under oath that he "has exhausted his means of securing this witness 5 through other means." (Id.) In his attached affidavit to the Motion, defense counsel sets forth 6 some of the facts why he believes Tiko is a material witness in his client's case and avers 7 that "[u]pon contacting Mr. Titko's (sic) mother, Counsel was notified that Mr. Titko (sic) 8 was living in homeless shelters in the Phoenix area and did not have any way of being 9 contacted." (Doc. 153-2 at 1) Representing he was unable to secure Tiko's presence for the trial by subpoena, defense counsel "request[ed] that Mr. Titko (sic) be taken into custody as a material witness pursuant to 18 U.S.C. § 3144." (Id.) Without standing to do so, the Government, of course, did not oppose the Motion and, at that time, Tiko did not have appointed or retained counsel. Chief Judge Folsom promptly granted the Motion based upon the representations of counsel that Tiko "will be needed as a witness on February 22, 2011." (Doc. 153 at 1)

After Tiko's arrest in Phoenix, Tiko, a U.S. citizen, was initialed on Tuesday, March 8, 2011, advised of his rights and why he was arrested, and temporarily detained by the undersigned Magistrate Judge pending status hearings on identity and detention the next day in Phoenix. (Docs. 1-2 in 11-3107M) Because Tiko was unable to obtain adequate representation, AFPD Jane McClellan was appointed to represent him. Anticipating verified information may become necessary in the event a detention hearing was held, a Pretrial Services Report was ordered even though Tiko was not charged with a federal crime.

The March 9, 2011 minute entry indicates that "[c]counsel informed the Court that they have called the prosecuting district for assistance regarding this matter but was unable to reach anyone by the time of the setting of this hearing. The material witness informed the Court that he was available but did not receive notice that he needed to appear in the prosecuting district. The material witness also informed the Court that he does not have the funds to travel[]" to Sherman, Texas. Again hopeful to receive helpful information from Texas that might have secured Tiko's prompt release, counsel requested the status hearings be reset to the next day, March 10th.

On March 10, 2011, AUSA Vincent Kirby, AFPD Craig Orent covering for Jane McClellan who was unavailable, and the Court conclude that Tiko, even though a material witness and, perhaps, contrary to the express language of Chief Judge Folsom's arrest order, was entitled to a detention hearing consistent with 18 U.S.C. § 3142. A full detention hearing and status hearing on identity was set for Friday, March 11, 2011 at 4:15 8 p.m., allowing more time for attorney Orent to speak with Defendant Nichols' Texas attorney.

In preparation for Tiko's detention hearing, the Court electronically reviewed the Texas file, 4:09cr222(2). In a February 14, 2011 minute entry, discussions were held with between all counsel and Chief Judge Folsom outside the presence of a jury panel regarding, inter alia, Nichols' attorney Don Bailey's expressed "need to have an additional [toxicological] expert besides Dr. Ward . . . but her initial assessment was it could not have been the Heroin that caused the death of " the victim. (Doc. 174) Apparently at that time, AUSA Tracey Batson then orally moved to continue the trial while the jury pool was waiting in the courtroom for the jury selection process to begin. The Court granted the Government's oral motion and continued the trial to April 25, 2011. (Id. at 1; ) In addition to setting expert disclosure deadlines, the Court advised counsel that an April 25, 2011 trial date "will give time for Mr. Bailey's witness the (sic) is in BOP in PA and the witness that is in Arizona." (Id.) The undersigned interprets this statement attributed to the Court by the courtroom deputy clerk as meaning that by continuing the trial, Nichols' attorney would have more time to locate, subpoena or depose the two out-of-district defense witnesses. Chief Judge Folsom issued a detailed order on February 23, 2011, explaining why the trial was continued to April 25, 2011. (Doc. 185) Pending for ruling is attorney Frank W. Henderson's Motion to Quash Subpoena and Request for Protective Order regarding Defendant Nichols' subpoena of Mr. Henderson, William Patrick Baca's former attorney in this case, to appear and testify at the trial of Defendant Nichols on behalf of Defendant Nichols. (Doc. 185) Mr. Baca, Defendant Nichols' co-defendant in this case, pled guilty in 2010 and is serving a lengthy prison 2 sentence with the Bureau of Prisons. (Docs. 54, 88) 3 II. Material Witnesses 4 "In 1984, Congress enacted the present version of the material witness statute 5 found at 18 U.S.C. § 3144.*fn3 " In re Grand Jury Material Witness Detention, 271 F.Supp.2d 6 1266, 1269 (D.Ore. 2003). The statute permits a witness to be detained "if it appears from 7 an affidavit filed by a party that the testimony of a person is material in a criminal 8 proceeding, and if it is shown that it may become impracticable to secure the presence of the 9 person by subpoena" to wit, by flight. Id. The statute expressly provides that no person shall be detained because of an inability to comply with any condition of release if the testimony of the material witness can adequately be secured by deposition, and further detention is not necessary to prevent a failure of justice. 18 U.S.C. § 3144. The release of a material witness may be delayed for a reasonable period of time, especially when the material witness is in the United States unlawfully, until the material witness' deposition can be taken. United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D.Cal. 2003); Aquilar-Ayala v. Ruiz, 973 F.2d 411, 419-420 (5th Cir. 1992) ("undocumented aliens have an overriding liberty interest in not being detained as material witnesses, when the deposition procedure serves as an adequate alternative to prolonged detention."); United States v. Rivera, 859 F.2d 1204 (4th Cir. 1988).

As with any defendant, it is the responsibility of the district court, usually a magistrate judge, to supervise the detention of any material witness held within its jurisdiction in order to eliminate unnecessary detention. Rule 46(h)(1), Fed.R.Crim.P., ("To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.") (emphasis added). A material witness, however, who knowingly fails to appear before any federal court as required after his release may be fined or imprisoned for not more than one year, or both.

18 U.S.C. § 3146(b)(2) ("if the person was released for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both.").

Federal Rule of Criminal Procedure 15 and § 3144 provide a party or detained material witness with a mechanism for securing the material witness' release. Rule 15(a),(b), Fed.R.Crim.P. "A material witness may make a motion requesting such a deposition and the district court has the authority to order the taking of the deposition and thereafter to discharge the detained witness from custody." Torres-Ruiz v. United States District Court, 120 F.3d 933, 935 (9th Cir. 1997) (quoting Aquilar-Ayala v. Ruiz, 973 F.2d 411 (5th Cir. 1992)). The motion must demonstrate that the material witness' "testimony can adequately be secured by deposition," and that "further detention is not necessary to prevent a failure of justice." 18 U.S.C. § 3144. Upon such a showing, the district court must order a material witness' deposition and prompt release. Rarely will a material witness remain detained until trial, and then only to prevent an injustice, such as, the credibility of a material witness is critical to a defendant's guilt or innocence. See, e.g., United States v. Guzman-Torres, 2010 WL 3521973, * 3 (S.D.Cal., Sept. 7, 2010) ("With the firm trial date less than three weeks away, this Court concludes that an order setting depositions at this stage could result in a failure of justice . . . Under the facts of this case, the Court concludes that the testimony of Morales-Sanchez and Bautista-Romero cannot be adequately secured by deposition.").

III. Bail Reform Act

Another procedural safeguard against unwarranted detention is § 3144's 2 express invocation of the bail and release provisions set forth in 18 U.S.C. § 3142. Section 3 3144 directs that "a judicial officer may . . . treat the [detained] person in accordance with 4 the provisions of section 3142 of this title." 18 U.S.C. § 3144. The Bail Reform Act ("Act"), 5 18 U.S.C. §§ 3141-3150, establishes procedures for a judicial officer to order the release or 6 detention of an arrested person. 18 U.S.C. § 3142; United States v. Gentry, 455 F.Supp.2d 7 1018, 1019-1020 (D.Ariz. 2006) (citation omitted). Of course, not every provision of ...


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