United States District Court, D. Arizona
ORDER
HONORABLE JAMES A. SOTO UNITED STATES DISTRICT JUDGE
Pending
before the Court are Defendant's Motion for Review by
District Court Judge of Detention Order (Doc. 21),
Government's motions for detention (Docs. 12, 29, 41),
and Defendant's motions for release (Docs. 13, 42). The
Court held a de novo hearing on January 10, 2019,
and took the matter under advisement. In addition to the
hearing, the Court reviewed the parties' filings (Docs.
12, 13, 21, 23, 29, 30, 41, 42), the transcripts of the
three-day detention hearing before Magistrate Judge D. Thomas
Ferraro (Docs. 24, 25, 26), and the exhibits admitted before
Magistrate Judge Ferraro.
This
Court reviews a Magistrate Judge's detention order de
novo. United States v. Koenig, 912 F.2d 1190,
1191 (9th Cir. 1990). We review the evidence before the
magistrate with no deference and make independent findings.
Id. at 1192-93. A defendant will be detained prior
to trial if the Government proves either that the defendant
is a flight risk by a preponderance of the evidence or that
the defendant is a danger to the community by clear and
convincing evidence after proving that the matter is eligible
for a detention hearing under Section 3142(f) of Title 18 of
the United States Code and that there are no conditions that
can reasonably assure defendant's appearance and safety
to other person and the community. See 18 U.S.C.
§ 3142(f) and (g); United States v. Twine, 344
F.3d 987, 987 (9th Cir. 2003) (per curiam); United States
v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991);
United States v. Motamedi, 767 F.2d 1403, 1406 (9th
Cir. 1985). Section 3142(f) of Title 18 of the United States
Code, creates seven groups of cases that are eligible for
detention hearings: (1) crimes of violence, violations of
section 1591, or offenses listed in section 2332b(g)(5)(B)
with a maximum sentence of ten (10) years or more, (2)
offenses with a maximum sentence of life imprisonment or
death, (3) violations of the Controlled Substances Act, the
Controlled Substances Import and Export Act, or chapter 705
of Title 46 with a maximum sentence of ten (10) years or
more, (4) felony allegations against a person already
convicted of two or more offenses described in the three
previous groups or the state or local equivalents if federal
jurisdiction existed, (5) felony allegations involving a
minor victim or involving possession or use of a firearm or
destructive device or involving a failure to register under
Section 2250 of Title 18 of the United States Code, (6) there
is a serious risk the defendant will flee, and (7) there is a
serious risk that defendant will obstruct or attempt to
obstruct justice, or threaten, injure, or intimidate, or
attempt to threaten, injure, or intimidate a prospective
witness or juror.
When
considering if any condition could reasonably assure a
defendant's presence or safety of community the Court
looks to the following factors: the nature and circumstances
of the offense charged, the weight of the evidence against
the person, the history and characteristics of the person,
and 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).
The
Court may consider hearsay evidence at a detention hearing.
Fed.R.Evid. 1101(d)(3); United States v. Winsor, 785
F.2d 755, 756 (9th Cir. 1986); United States v.
Bibbs, 488 F.Supp.2d 925, 925-26 (N.D. Cal. 2007). The
Court will evaluate the reliability of such hearsay evidence
in light of the general principles that evidence that is
directly from the source and is cross-examined is more
reliable.
FACTS
Based
on the briefs, transcripts, and testimony before the Court,
the Court finds the facts to be as follows:
Defendant
works for Homeland Security Investigations
(“HSI”)[1] and is alleged to have made false
statements regarding his educational achievements on his
applications to HSI.
Investigation
The
investigation into Defendant's background and application
stemmed from an incident at V.J.'s place of employment,
the Veteran's Administration (“VA”) in
Tucson, Arizona. On November 8, 2018, Defendant arrived at
the VA and asked to speak with his current wife, V.J. She had
told her supervisor that her marriage with Defendant was
dissolving and that there were some ongoing domestic issues
between Defendant and V.J. V.J.'s supervisor told
Defendant that V.J. was unavailable. Defendant went to his
vehicle and returned to tell V.J.'s supervisor that he
needed to give V.J. some paperwork. Defendant was likely
attempting to give V.J. paperwork to initiate their
divorce.[2] V.J.'s supervisor told Defendant that
she could not assist him, and he left the facility.
V.J.'s
supervisor called Federal Protective Service Inspector Anil
Pillai because V.J. reported that Defendant carried weapons
at all times. Inspector Pillai spoke with V.J. and her
supervisor. V.J. sent Inspector Pillai an email outlining
some of the troublesome contacts between Defendant and
herself. This investigation was referred to Office of
Personnel Responsibility Senior Special Agent Peggy Moskaluk,
who discovered a discrepancy in Defendant's application
and background check information. This discrepancy resulted
in the present charges against Defendant. During
conversations with the Senior Special Agent, V.J. mentioned
that Defendant told her he had degrees and she saw some
degrees or educational certificates on Defendant's wall.
The Government alleges 1 that the degrees are false, and this
potential testimony would be relevant to Defendant's 2
intent or willfulness.
3
V.J. and Defendant's Relationship
V.J.
and Defendant began dating in 2015. Their relationship did
not last long 5 without police contact. On October 30, 2016,
Marana Police Department responded to a 6 domestic
disturbance between Defendant and V.J. The officer stayed
until Defendant 7 packed a bag and left the home. While
responding to a separate issue, officers observed 8 that
Defendant had returned to the home approximately twenty
minutes later. Defendant 9 and V.J. got married in February
2018. However, the relationship deteriorated quickly. V.J.
claimed to Inspector Pillai that on August 31, 2018,
Defendant kicked her out of their home. Before she could
leave the house, Defendant was physical with her, tossing and
pushing 2 her. On September 2, 2018, she returned to the home
so she and her son from a previous 3 relationship could
gather their belongings. Again, there was an altercation,
which resulted 4 in V.J. and her son running out of the house
and to a neighbor's house. V.J. called Pima 5 County
Sheriff's Department.[3] An officer, who was familiar with the
couple from previous 6 incidents through the weekend, stayed
while V.J. and her son packed their belongings. On 7
September 6, 2018, V.J. learned she was not the only woman in
Defendant's life and 8 informed him that he could serve
her divorce papers at work and that she would gather her 9
belongings the following day.
The two
seemed to attempt to repair their relationship through
therapy. This seemed 1 to only escalate Defendant's
controlling behaviors. On October 22, 2018, Defendant told 2
V.J. that he understood why people kill their spouses and
then themselves. On October 29, 3 2018, Defendant and V.J.
got into a verbal disagreement regarding V.J.'s need for
medical 4 treatment. On October 30, 2018, Defendant appeared
at ...