United States District Court, D. Arizona
ORDER
Honorable James A. Soto, United States District Judge
Pending
before the Court is Defendant's Motion for Review by
District Court Judge of Detention Order (Doc. 68). The Court
held a de novo hearing on November 13, 2019. (Doc. 93.) The
Court took the matter under advisement. In addition to the
hearing, the Court reviewed the parties' filings (Docs.
68, 74), Pretrial Services' Violation Report (Doc. 48),
the Amended Petition to Revoke Pretrial Release (Doc. 61),
and the transcript of the previous hearing (Doc. 107),
including exhibits admitted into evidence at said hearing.
Defendant
was originally charged with Conspiracy to Commit Mail and
Wire Fraud and Conspiracy to Commit Money Laundering. (Doc.
1.) The indictment was later superseded to add an additional
defendant. (Doc. 22.) Defendant was released on his own
recognizance. (Doc. 8.) Defendant's Pretrial Services
Officer petitioned for action based on the following alleged
violations: (1) “[o]n July 14, 2019[, ] the defendant
was arrested by Lawrenceville Police Department in Gwinnett
County and is being charged with committing the offenses of
Aggravated Assault, a felony, and Batter, a
misdemeanor” and (2) “Per the report from the
Gwinnett County Police Department, dated July 14, 2019, the
defendant verbally reported having possessed a weapon on this
date.” (Doc. 61.)
On
September 19, 2019, Magistrate Judge Lynnette C. Kimmins held
an evidentiary hearing and found that Defendant violated with
respect to the second allegation. (Doc. 62.) She found that
“There is evidence that was presented today that shows
for at least a period from Friday through Sunday that weapon
was in his apartment. There's testimony that it was a
smaller apartment, that the gun was -- that the gun box
itself was located in the living room and that the gun at the
time of the incident was laying on the counter. And I
understand that Mr. Stephenson has said he did not see the
gun prior to the incident. The fact remains it's his
apartment. He has an individual in there that has had -- has
a weapon in his apartment.” (Doc. 107 at 55:13-22.)
Further, she stated that “[her] general practice with
respect to the do not possess any firearm, destructive
device, or other dangerous weapon or ammunition, when [she]
speak with a defendant, [she] make it perfectly clear that
they are not to have weapons in their house. There's
testimony at this time that there was a weapon in his
apartment. There's also testimony from the previous
incident that the weapon was -- an additional weapon was in
his vehicle when he dropped off Ms. Knibbs from the airport.
There's inconsistent statements from Mr. Stephenson
himself when he indicates he dropped her off and then somehow
says the car dropped her off but doesn't indicate
anything. I recognize that that particular weapon is not part
of the amended petition. However, I think it can be used by
the Court with respect to his release conditions.”
(Id. at 56:1-15.)
Further,
Magistrate Judge Kimmins found that there was insufficient
evidence to prove that Defendant violated his conditions of
release with respect to the first allegation. (Doc. 62.) She
also orally found that “Regarding his current
conditions of detention or release, at this time I do find
that he is a risk of flight and nonappearance by the simple
matter that he's not complying with the Court's
conditions. I also find, based on the fact that his
noncompliance deals with at least one if not two possessions
of firearms, that he is a danger to the community. So at this
time, I am going to have him detained.” (Doc. 107 at
57:3-9.) Defendant requested review. (Doc. 68.)
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. Once a defendant is released, the Government may
initiate a request to revoke the order of release based on a
violation of a condition of release. 18 U.S.C. §
3148(b). The judicial officer is charged with determining if
there is either “probable cause to believe that the
person has committed a Federal, State, or local crime while
on release; or [] clear and convincing evidence that the
person has violated any other condition of release.”
Id. § 3148(b)(1). If the judicial officer also
finds that either “based on the factors set forth in
section 3142(g) of this title, there is no condition or
combination of conditions of release that will assure that
the person will not flee or pose a danger to the safety of
any other person or the community; or [] the person is
unlikely to abide by any condition or combination of
conditions of release[, ]” the defendant will be
detained. Id. § 3148(b)(2).
FACTS
Based
on the record, briefs, and transcripts before the Court, the
Court finds the facts to be as follows:
This
incident came to Defendant's Pretrial Services Officer
because of an arrest in Georgia, where Defendant used a
firearm during an altercation with his ex-girlfriend, Ashley
Knibbs. (Doc. 107 at 7:2-24, 8:22-25, 15:20.)
Before
the incident in question, Defendant drove Ms. Knibbs to the
airport so she could go on a cruise. (Id. at
16:15-17.)[1] She apparently had her firearm with her
and gave it to Defendant or left it in his vehicle.
(Id. at 17:19, 35:4-5.) This firearm was not
recovered. (Id. at 25:16.) Defendant apparently gave
Ms. Knibbs' firearm to another individual, Jamar Gibbon.
(Id. at 25:25-26:1.)
On the
day before and the day of the incident, which was July 14,
2019, she texted Defendant that she would like her
“strap” back. (Id. at 17:11.)
Defendant's friend, Damion Gaston, was at Defendant's
apartment and had been for a few days. (Id. at
29:21-22, 36:4-9.) He brought a firearm with him in a box.
(Id. at 21:7-11.) Ms. Knibbs came into the
apartment. (Id. at 18:2-4.)
At this
point the story varies depending on the teller. (Id.
at 17:20-22.) Ms. Knibbs asserts that Defendant initiated the
physical altercation when she came to his house to retrieve
the weapon and that she used a knife in self-defense.
(Id. at 18:8-13.)[2] A witness to the incident, Damion
Gaston, [3] did not opine on who began the physical
altercation. (Id. at 20:14-16.) He attempted to
break the fight up and that he was pushing Ms. Knibbs to the
door when he heard a shot. (Id. at 20:17-20.)
Defendant asserts that Ms. Knibbs previously threatened to
fight him by text message and that once he maneuvered her out
of his bedroom, she began to attack him. (Id. at
38:25-39:5.) All three stories agree that Defendant went to
the kitchen, which is an undefined distance from the
altercation, and retrieved Mr. Gaston's firearm.
(Id. at 30:10-14.) Then Defendant shot Ms. Knibbs in
the leg with Mr. Gaston's firearm. (Id.)
Defendant asserts that he did not have any knowledge of the
firearm's presence within his apartment until the
incident. (Id. at 36:10-14.) The firearm was in the
open on the kitchen counter. (Id. at 49:21-23.) Mr.
Gaston's firearm was not found at the scene, but the box
was found in the living room of Defendant's apartment.
(Id. at 21:7-8.)
FINDINGS
The
Court agrees with the Magistrate Judge's findings.
Defendant possessed Mr. Gaston's firearm for the days
that Mr. Gaston was in his apartment with the firearm. While
Ms. Knibbs' firearm is not a part of the amended
petition, it does seem that this incident demonstrates that
Defendant is around firearms, people with firearms, and takes
temporary possession of those firearms from time to time.
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