2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 1 of 9 Pg ID 59 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. NO. 15-20652 HON. GEORGE CARAM STEEH BILLY ARNOLD, Defendant. ________________________________/ GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION FOR REVOCATION OF DETENTION ORDER The United States of America, by its undersigned attorneys, hereby responds to the defendant’s motion for revocation of order of detention: the government submits that the defendant is both a risk of flight and a danger to the community. There are no conditions or combination of conditions that will reasonably assure the appearance of the defendant and the safety of the community. The government respectfully requests that the Court deny the defendant’s motion. Respectfully submitted, Dated: November 17, 2015 BARBARA L. McQUADE UNITED STATES ATTORNEY /s/ Christopher Graveline Christopher Graveline (P69515) Rajesh Prasad (P68519) Assistant United States Attorneys 211 Fort Street 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 2 of 9 Pg ID 60 Suite 2001 Detroit, MI 48226 (313) 226-9155 christopher.graveline2@usdoj.gov 2 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 3 of 9 Pg ID 61 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, NO. 15-20652 Plaintiff, HON. GEORGE CARAM STEEH v. BILLY ARNOLD, Defendant. ________________________________/ GOVERNMENT=S BRIEF IN SUPPORT OF RESPONSE TO DEFENDANT’S MOTION FOR REVOCATION OF DETENTION ORDER STATEMENT OF FACTS AND PROCEDURAL POSTURE The defendant was initially arrested in the early morning hours on September 26, 2015. His arrest stemmed from a traffic stop conducted after members of the FBI Violent Gang Task Force and Detroit Police Department Gang Intelligence Unit observed the defendant and his co-defendant, Steven Arthur Jr., exit the Crazy Horse Adult Entertainment bar and enter a stolen Chevrolet Trailblazer. Both men in the vehicle were known Seven Mile Blood (SMB) street gang members. Detroit police officers attempted to do a traffic stop and a high-speed pursuit ensued which reached speeds in excess of 100 miles per hour. The pursuit ended as Arthur lost control of the Trailblazer on the interchange ramp of Interstate 94 and Interstate 75. Arthur was 3 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 4 of 9 Pg ID 62 arrested after attempting to flee on foot and the defendant was arrested in the passenger seat of the vehicle. A loaded Bushmaster .223 caliber rifle, with a fully loaded 40 round magazine was recovered from the back area of the Trailblazer. The defendant was charged, via federal complaint on that same date, for being a felon in possession of a firearm. Magistrate Judge Mona K. Majzoub held a detention hearing for the defendant on October 1, 2015. Both pretrial services and the government recommended detention pending trial stating that the defendant was a danger to the community and a risk of flight. In support of its recommendation, the government proffered the affidavit in support of the complaint, the Pretrial Services Report, the defendant’s lengthy criminal history, and an oral proffer that detailed the defendant’s connection to SMB/Hobsquad street gang, an on-going shooting back-and-forth between rival gangs on Detroit’s east side. At the conclusion of the hearing, Judge Majzoub ruled that the defendant should remain in detention since there were no conditions or combination of conditions that would will reasonably assure the appearance of the defendant and the safety of the community. Judge Majzoub issued a written order of detention pending trial detailing her rationale that same day highlighting the defendant’s less than stable living situations, daily use of marijuana, gang affiliation, a “significant” criminal history with “unremitting contacts with law enforcement since the age of 17,” and use of multiple aliases and dates of birth. See Docket Entry (DE) 11. 4 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 5 of 9 Pg ID 63 A federal grand jury indicted the defendant on one count of felon in possession of a firearm on October 13, 2015. The defendant has now petitioned the Court for a detention hearing and to rescind the current order of detention. STANDARD OF REVIEW AND APPLICABLE LAW The standard of review of a magistrate’s order of pretrial detention is de novo. United States v. Leon, 766 F.2d 77, 80 (2nd Cir. 1985); see also United States v. Yamini, 91 F.Supp. 2d 1125, 1127 (S.D. Ohio 2000). The government must show by a preponderance of the evidence that the defendant poses a risk of flight, and by clear and convincing evidence that the defendant is a danger to the community. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); United States v. Quartermaine, 913 F.2d 910 (11th Cir. 1990). The government may proceed at a detention hearing “by proffer or hearsay.” United States v. Webb, 238 F.3d 426 (Table), 2000 WL 1721060, *2 (C.A. 6 (Tenn.)) (citing United States v. Windsor, 785 F.2d 755, 756 (9th Cir. 1986); see also United States v. Smith, 79 F.3d 1208, 1210 (D.C.Cir. 1996) (“[e]very circuit to have considered the matter…[has] permitted the Government to proceed by way of proffer”). Consequently, “a full evidentiary hearing is not required.” Id. THERE ARE NO CONDITIONS OR COMBINATION OF CONDITIONS THAT WILL REASONABLY ASSURE THE APPEARANCE OF THE DEFENDANT AND THE SAFETY OF THE COMMUNITY Judge Majzoub’s order of detention articulates in great detail why the defendant should remain in detention pending trial. There is nothing in the defendant’s history 5 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 6 of 9 Pg ID 64 that suggests that he will appear, will follow the directions of the Court, or will not present a danger to other community members. A. The Defendant Is A Flight Risk As concluded by pretrial services and supported in the detention order, the defendant is a risk of flight. As Judge Majzoub articulated in her detention order, the defendant has no stable living arrangements, no employment and no clear means of support, continual use of marijuana, and the repeated use of multiple aliases and dates of birth. In his motion, the defendant states that “he has been working” (but could not provide pretrial services with a place of employment) and that “he has a large and supportive network of law-abiding family and friends” (but does not identify a particular person or residence that he could be released to). See DE 18 at 6. Simply put, the defendant has not pointed to a single, concrete fact that establishes that he is not a risk of flight prior to trial. B. The Defendant Is a Danger to the Community Even more importantly, the defendant is a danger to the community. The government will not repeat its full oral proffer here, but that proffer outlines how the defendant is a member of a violent street gang that is currently engaged in shooting back-and-forth with its rivals and that he personally has a history of possessing loaded firearms. In the eleven years since he turned 17, the defendant has been charged with felony delivery/manufacture controlled substance (convicted of attempt misdemeanor 6 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 7 of 9 Pg ID 65 controlled substance), charged with felony carrying a concealed weapon (convicted of attempt carrying a concealed weapon), had a warrant requested for misdemeanor burglary, charged with misdemeanor traffic offense (while using an alias), convicted of felonious assault (great bodily harm less than murder), carrying a concealed weapon, felon in possession of a firearm, felony firearm, and misdemeanor discharge of firearm while aimed. Additionally, a PPO was issued while he was on parole, but the complaining witness refused to prosecute. During this span of time, every time he has been out of prison or confinement, he has committed new crimes and has shown a propensity to possess firearms. C. Statutory Factors In considering whether detention is appropriate, Congress set out several statutory factors to consider under the Bail Reform Act. See 18 U.S.C. § 3142(g)(1)-(4). The great weight of those factors clearly favors detention in this case. First, “the nature and circumstances of the offense charged, including whether the offense is a crime of violence…or involves a…firearm” should be considered. The charged offense is being a felon in possession of a firearm, the defendant’s second such offense. Second, the weight of the evidence against the person is to be considered. While it is true that there were two individuals in the vehicle, both men were both felons and members of the same gang who are actively engaged in a shooting back-and-forth with their rivals. When viewed in the context of this current gang feud, the circumstantial 7 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 8 of 9 Pg ID 66 evidence of the defendant’s knowledge of and his joint possession of this fully loaded, forty round assault rifle is strong. Third, the history and characteristics of the defendant are to be considered. The defendant’s history and characteristics are laid out above and none of them favor release. Finally, the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release is to be considered. Once again, the defendant’s actions reveal the danger he presents to the larger community. The defendant is a member of a violent street gang, and not just any member, a person who has repeatedly shown that he is willing to arm himself regardless of whether the law forbids it or not. Consequently, all of the relevant factors identified by Congress weigh heavily in favor of continued detention for the defendant. 8 2:15-cr-20652-GCS-DRG Doc # 21 Filed 11/17/15 Pg 9 of 9 Pg ID 67 CONCLUSION WHEREFORE, since there are no conditions or combination of conditions that will reasonably assure the appearance of the defendant and the safety of the community, the defendant=s request for revocation of the detention order should be denied. Respectfully submitted, Dated: November 17, 2015 BARBARA L. McQUADE UNITED STATES ATTORNEY /s/ Christopher Graveline Christopher Graveline (P69515) Rajesh Prasad (P68519) Assistant United States Attorneys 211 Fort Street Suite 2001 Detroit, MI 48226 (313) 226-9155 christopher.graveline2@usdoj.gov 9