United States v. Johnson , 660 F. App'x 663 ( 2016 )


Menu:
  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                     September 13, 2016
    Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                        No. 16-3251
    (D.C. No. 5:15-CR-40086-DDC-7)
    BARRY M. JOHNSON,                                          (D. Kan.)
    Defendant - Appellant.
    ORDER AND JUDGMENT*
    Before KELLY, BACHARACH, and McHUGH, Circuit Judges.
    Barry M. Johnson appeals the district’s order denying his motion for
    reconsideration of his detention order. We have jurisdiction under 28 U.S.C. § 1291
    and 18 U.S.C. § 3145.
    I. Background
    On October 15, 2015, Mr. Johnson was charged in a sealed indictment with
    one count of conspiracy to commit sex trafficking of a minor, in violation of
    *
    This panel has determined that oral argument would not materially assist the
    determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
    case is therefore ordered submitted without oral argument. This order and judgment
    is not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. It may be cited, however, for its persuasive value consistent
    with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    18 U.S.C. § 1594(c)1, and one count of conspiracy to commit offenses against the
    United States, in violation of 18 U.S.C. § 371. The government moved for pretrial
    detention, and the magistrate judge held a detention hearing on November 17, 2015.
    At the conclusion of the detention hearing, the magistrate judge found that no
    condition or combination of conditions would reasonably assure the appearance of
    Mr. Johnson as required and that no condition or combination of conditions would
    reasonably assure the safety of any other person or the community. These findings
    were based on the nature and circumstances of the offense (conspiracy to commit sex
    trafficking of a minor) and the history and characteristics of Mr. Johnson, including:
    1) he is unemployed; 2) he does not have substantial financial resources; 3) he has a
    history of drug abuse; 4) he has a significant prior criminal record; and 5) he has a
    prior record of failing to comply with probation conditions. The court also noted that
    a presumption of detention existed under 18 U.S.C. § 3142(e) because the offense
    involved a minor victim, and that Mr. Johnson had failed to rebut the presumption.
    The magistrate judge therefore ordered Mr. Johnson detained before trial.
    Mr. Johnson did not seek review of the detention order at that time.
    In May 2016, Mr. Johnson filed a motion asking the court to reopen his
    detention hearing, reconsider the detention order, and grant him pretrial release. The
    1
    That statutory section provides: “Whoever conspires with another to violate
    section 1591 [(Sex trafficking of children or by force, fraud, or coercion)] shall be
    fined under this title, imprisoned for any term of years or for life, or both.”
    18 U.S.C. § 1594(c).
    -2-
    magistrate judge denied the motion, finding there was no change of circumstances
    sufficient to permit pretrial release and there continued to be no conditions that
    would reasonably assure Mr. Johnson would not be a serious flight risk or a danger to
    the safety of any other person or the community. Mr. Johnson then filed a motion
    asking the district court to review and revoke the detention order and to review the
    magistrate judge’s order denying his motion to reopen. The district court considered
    this motion as a motion for reconsideration of the detention order and denied it. This
    appeal followed.
    II. Discussion
    A judicial officer must detain a defendant prior to trial if he or she “finds 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.”
    18 U.S.C. § 3142(e). If there is probable cause to believe that a defendant committed
    an offense involving a minor victim under 18 U.S.C. § 1591, then a rebuttable
    presumption arises that no conditions will reasonably assure the appearance of the
    person as required or the safety of the community. 
    Id. § 3142(e)(3)(E).
    The
    defendant’s burden of production to overcome the presumption is not a heavy one,
    but the defendant must produce some evidence. United States v. Stricklin, 
    932 F.2d 1353
    , 1354-55 (10th Cir. 1991) (per curiam). Even if the presumption is overcome,
    the presumption remains a factor in the district court’s detention decision. 
    Id. at 1355.
    -3-
    We review de novo mixed questions of law and fact concerning the detention
    decision. United States v. Cisneros, 
    328 F.3d 610
    , 613 (10th Cir. 2003). We review
    the district court’s findings of fact for clear error. 
    Id. Mr. Johnson
    argues that the district court did not consider all the facts
    favorable to him and did not make findings as to why it concluded that no condition
    or combination of conditions would reasonably assure his appearance as required.
    We disagree.
    The district court concluded that Mr. Johnson should be detained pending trial
    for principally the same reasons cited by the magistrate judge. The court then
    addressed the statutory factors for determining whether detention is appropriate,
    see 18 U.S.C. § 3142(g), and made findings relevant to the factors.
    The court found that the nature and circumstances of the offense charged
    here—conspiracy to violate 18 U.S.C. § 1951 with a minor victim—favored detention
    under § 3142(e)(3)(E) because of the statutory presumption of detention. The court
    also found that Mr. Johnson’s history and characteristics favored detention. The
    court noted that Mr. Johnson: 1) was unemployed when he was arrested; 2) lacked
    substantial resources; 3) had a long history of drug abuse; 4) had an extensive
    criminal history; and 5) failed to report to his Kansas probation officer.
    The court noted that the failure to report to the probation officer was “[o]f
    particular concern,” Aplt. App. at 130, and rejected Mr. Johnson’s “explanation of
    circumstances that mitigate his failures to report,” 
    id. at 130
    n.1. As the court stated:
    -4-
    “The court understands that an immobilizing health condition could interfere with a
    required appearance. But Mr. Johnson never explains why he could not have notified
    his probation officer of his condition by telephone and requested a postponement of
    his appearance.” 
    Id. The court
    further noted that the record did not permit it to assess the strength
    of the government’s case against Mr. Johnson and thus disclaimed any reliance on
    that factor. And, finally, the court noted some concern over Mr. Johnson’s criminal
    history, but did not conclude that Mr. Johnson would pose a significant danger to the
    community if released.
    Finally, the district court expressed “significant concern” that Mr. Johnson’s
    pretrial detention would last over a year because “[t]he case’s complexity recently
    required the court to continue the trial date until December 6, 2016.” 
    Id. at 130.
    It
    characterized this amount of time as “at best, regrettable” and stated that it “disfavors
    continued pretrial detention.” 
    Id. Still, it
    found that, on balance, pretrial detention
    was appropriate.
    Mr. Johnson did identify two items of new information, which he asserted
    justified re-opening his detention order and granting him release. First, he indicated
    that he would now have a stable residence as his uncle had volunteered to let him
    stay at his house. He also indicated that his uncle and sister had contacts in the
    community that they would use to help him find employment. In its order, the court
    did note that “Mr. Johnson and his attorney have made thoughtful arguments that
    -5-
    Mr. Johnson will not flee.” 
    Id. at 131.
    But the court ultimately found that the
    government had carried its burden of showing by a preponderance of the evidence
    that no condition or combination of conditions reasonably will assure Mr. Johnson’s
    appearance as required.
    III. Conclusion
    The district court considered the record evidence in conjunction with the
    relevant statutory factors and made findings to support its detention decision. We see
    no reversible error in the district court’s decision to deny Mr. Johnson’s motion for
    reconsideration of his detention order. Accordingly, we affirm the district court’s
    decision.
    Entered for the Court
    Per Curiam
    -6-
    

Document Info

Docket Number: 16-3251

Citation Numbers: 660 F. App'x 663

Judges: Kelly, Bacharach, McHugh

Filed Date: 9/13/2016

Precedential Status: Non-Precedential

Modified Date: 11/6/2024