United States District Court, D. Arizona
LAWRENCE O. ANDERSON, Magistrate Judge.
The Government seeks the detention of Defendant John Keith Hoover ("Hoover") on the ground that he is a serious flight risk and no release condition or combination of conditions exist that would reasonably assure his appearance at future court proceedings if released. See the Government's Motion Re: Detention Pending Trial and Supplemental Motion Re: Detention Pending Trial, filed on April 22 and April 25, 2014, respectively. (Docs. 10, 20) The matter has been under advisement since May 2, 2014, pending the Court's review of the detention hearing transcripts and documentary evidence submitted during the detention hearing.
After considering the Government's detention briefings and attached exhibits; all the evidence and proffers at the detention hearing held over two days; the arguments of both counsel; the controlling and persuasive authorities on the issues sub judice and all the factors set forth in 18 U.S.C. §3142(g), the Court finds that the Government has proven by a preponderance of the evidence that Hoover is a serious flight risk and no combination of conditions exist that would reasonably assure his appearance at future court proceedings if he were released from custody. Defendant John Keith Hoover shall remain detained pending resolution of this case.
On April 17, 2014, a District of Arizona grand jury indicted John Keith Hoover ("Hoover"); his wife, Deborah Boice Hoover; and their son, John Brandon Hoover. (Doc. 3) They were arrested at their home on April 21, 2014, in Mohave Valley, Arizona, located near Bullhead City, Arizona and Needles, California, in western Arizona. (Docs. 28-30) The 48-page, 52-count indictment charges Hoover with the following crimes:
1. Wire Fraud (Counts 1-15), in violation of 18 U.S.C. § 1343, each count is a Class C felony;
2. Mail Fraud (Counts 16-29), in violation of 18 U.S.C. § 1341, each count is a Class C felony;
3. Conspiracy to Commit Bank Fraud (Count 30), in violation of 18 U.S.C. § 1349, a Class B felony;
4. Bank Fraud (Counts 31-38), in violation of 18 U.S.C. § 1344, each count is a Class B felony;
5. Conspiracy to Commit Bankruptcy Fraud (Count 41), in violation of 18 U.S.C. § 371, a Class D felony;
6. Concealment of Assets (Count 42), in violation of 18 U.S.C. § 152(1), a Class D felony;
7. False Testimony in a Bankruptcy Proceeding (Counts 43-45), in violation of 18 U.S.C. § 152(2), each count is a Class D felony;
8. False Declarations in a Bankruptcy Proceeding (Counts 46-47), in violation of 18 U.S.C. § 152(3), each count is a Class D felony;
9. Fraudulent Transfer and Concealment of Property in Contemplation of Bankruptcy (Counts 48-51), in violation of 18 U.S.C. § 152(7), each count is a Class D felony; and
10. False Proof of Claim (Count 52), in violation of 18 U.S.C. § 152(4), a Class D felony.
( Id. )
The indictment also seeks the forfeiture of "[a]ll property, real and personal, that constitutes or is derived from proceeds traceable to the commission of the offense, including but not limited to the following: $20, 000, 000 in U.S. currency and all interest and proceeds traceable thereto, in that such sum in aggregate is property of Title 18, United States Code, Section § 981(a)(1)(c) and 28 U.S.C. § 2461." ( Id., ¶ 132 at 47)
Generally, the indictment alleges Hoover "[o]rchestrat[ed] an investment fraud scheme for at least the last ten years resulting in an approximate $20 million loss to investors." (Doc. 10 at 2) "This scheme was followed by a Bankruptcy Fraud scheme where he enlisted the assistance of his wife and son to conceal assets." ( Id. ) The Government claims Hoover "[t]reated funds of his Newport Beach, California and Arizona investors and clients as his own, concealed various assets from the Bankruptcy Court, made false representations as to the value of assets under his control, and signed several documents that bear false statements under penalty of perjury." ( Id. ) The Government further contends Hoover "[c]ontinues to hold exclusive management control over investor funds, and continues to solicit and extort monies from clients and investors." ( Id. )
II. The Bail Reform Act of 1984
"The Bail Reform Act [the "Act"], 18 U.S.C. §§ 3141-3150, authorizes and sets forth the procedures for a judicial officer to order the release or detention of an arrested person, pending trial, sentence, and appeal." David N. Adair, Jr., Federal Judicial Center, The Bail Reform Act of 1984, p. vii (3rd Ed. 2006). The Act mandates the release of a person pending trial unless the court "[f]inds 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." United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting 18 U.S.C. § 3142(e)); see also United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985). Conversely stated, "[a] district court may not order pretrial release unless it determines that a 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.'" United States v. Langenhorst, 130 Fed.Appx. 892, 893 (9th Cir. 2005) (reversing district judge's order releasing the defendant from detention). A district court engages in a two-step inquiry before ordering a defendant either released or detained pending trial. See United States v. Gentry, 455 F.Supp.2d 1018, 1020 (D. Ariz. 2006) (citation omitted). First, a district court must make a finding as to whether the defendant presents a "serious risk that [the defendant] will flee, " if released from custody. Id. (quoting 18 U.S.C. § 3142(f)(2)(A)). Second, if the defendant is likely to flee, the district court must determine whether some set of conditions would sufficiently vitiate that risk. Id. (citing, among others, 18 U.S.C. § 3142(g)). The burden of proof rests with the Government, which must establish risk of flight by a preponderance of the evidence, not by the higher standard of clear and convincing evidence for detention on the basis of danger. See Motamedi, 767 F.2d at 1406.
In determining whether release conditions exist that would reasonably assure a defendant's appearance, Section 3142(g) requires a district court to consider the following factors:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(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 ...