United States v. Dowell

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 13 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-1222
(D.C. No. 01-CR-395-D)
THOMAS GRANT DOWELL, (D. Colorado)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before EBEL Circuit Judge, BRORBY , Senior Circuit Judge, and KELLY ,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously 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This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Defendant-appellant Thomas Grant Dowell appeals the district court’s
denial of release pending trial. We have jurisdiction pursuant to 18 U.S.C.
§ 3145(c) and 28 U.S.C. § 1291, and we affirm.
I.
Defendant is currently awaiting trial in the District of Colorado on charges
that he destroyed government property by means of a fire and forcibly interfered
with government employees and administration. Defendant was arrested on these
charges in November 2001 in the Northern District of Texas and a magistrate
judge ordered him detained unless he posted a $100,000.00 cash or surety bail
bond. Defendant was then transferred to the District of Colorado, where
a magistrate judge ordered that the bond conditions remain in effect. Defendant
filed a motion to review and/or modify the conditions of release, but a magistrate
judge denied the motion at a hearing on April 4, 2002.
On April 8, 2002, defendant filed a motion for revocation or amendment of
the magistrate judge’s order regarding conditions of release. The government
opposed the motion, and it also moved to have the district court detain defendant
before trial under § 3142(e). A hearing on these motions was held before the
district judge on April 23, 2002. On April 26, 2002, the district judge entered an
order denying defendant’s motion for revocation or amendment and granting the
government’s motion for pretrial detention under § 3142(e).
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On May 10, 2002, defendant filed a pro se notice of appeal, seeking
review of the district court’s order. On June 5, 2002, defendant’s counsel filed
a memorandum regarding the issues on appeal in which he stated that the pro se
notice of appeal was filed without his knowledge or consent and that he “does not
believe this appeal to be meritorious.” 1
Mem. Regarding Issues on Appeal at 2
n.1. On June 18, 2002, the government informed this court that it was not going
to file a response to defense counsel’s memorandum since counsel admitted that
this appeal lacks merit.
On June 24, 2002, this court sent defendant a notice informing him that his
counsel had filed a brief stating a belief that this appeal is without merit. The
court further informed defendant that he had thirty days to raise any points to
show why the order entered by the district court on April 26, 2002 should not be
affirmed. Defendant did not file anything in response to this court’s notice, and
the thirty-day period expired on July 24, 2002.
II.
We hold that the district court acted properly in granting the government’s
detention motion under 18 U.S.C. § 3142(e). Accordingly, we need not address
1
Both the district court and this court have permitted defendant’s counsel to
withdraw as counsel of record, and defendant is currently represented both on
appeal and in the district court by new counsel.
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whether the district court erred in denying defendant’s motion for revocation or
amendment of the magistrate judge’s order regarding conditions of release.
The fundamental reason for detaining a defendant pending trial is that, after
a hearing, a “judicial officer 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). Factors to be
considered in this determination include the nature and circumstances of the
offense, including whether it is a crime of violence or a drug offense; the weight
of the evidence against the defendant; defendant’s history, character, physical and
mental condition, family ties, employment, financial resources, length of
residence in the community, community ties, past conduct, criminal history,
record concerning court appearances, and whether at the time of arrest defendant
was on probation or parole; and the nature and seriousness of the danger
defendant poses to any person or the community. See 18 U.S.C. § 3142(g).
A detention order must include “written findings of fact and a written
statement of the reasons for the detention.” 18 U.S.C. § 3142(i)(1). Rule 9(a)(1)
of the Federal Rules of Appellate Procedure further requires that the district court
“state in writing, or orally on the record, the reasons for an order regarding the
release or detention of a defendant in a criminal case.” This court’s “review of
detention or release orders is plenary as to mixed questions of law and fact and
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independent, with due deference to the district court’s purely factual findings.”
United States v. Stricklin , 932 F.2d 1353, 1355 (10th Cir. 1991).
The government moved for pretrial detention under § 3142(e) on the
grounds that defendant is a danger to the community and a flight risk. In his
order granting the government’s motion, the district judge found that pretrial
detention was necessary for the following reasons:
The Government asserts that Defendant should be detained because
of the severity of the crime with which Defendant is charged, arson
to the IRS building in Colorado Springs, CO, which caused over
two and a half million dollars in damage, destroyed thousands of
individual taxpayer returns and posed risk of death and serious bodily
injury to responding firefighters. The Government also states that it
believes Defendant is a substantial risk of flight based on the long
duration of the sentence, should the Defendant be convicted at the
upcoming trial, the substantive evidence against Defendant, and
the fact that Defendant does not have a permanent address or
employment ties to the community. I find that Defendant’s detention
is necessary under 18 U.S.C. § 3142(e) for the reasons stated on the
record at the hearing, including the nature of the offense Defendant
is charged with, his lack of ties to the community, and the pro se
letter Defendant filed on March 26, 2002. From what the Court was
able to decipher of the pro se letter, entitled Judicial Notice of
Military Flag and Challenge of Jurisdiction, Defendant indicated his
lack of deference for the Court and stated his belief that the federal
courts do not have jurisdiction over him or his case. Thus, I find that
no condition or combination of conditions will reasonably assure
Defendant’s appearance as required and the safety of any other
person and the community, and I will order Defendant’s pretrial
detention.
R., Doc. 154 at 4.
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Neither defendant nor the government have provided this court with a
transcript of the hearing before the district court on April 23, 2002. Although
Rule 9(a)(1) of the Federal Rules of Appellate Procedure generally requires an
appellant who questions the factual basis for a district court’s detention order to
file a transcript of the detention proceedings, we hold that the district court’s
order sufficiently sets forth the factual findings underlying the detention order
and that the findings are not clearly erroneous.
The order of the district court is AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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