USA v. Day

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-CR-00013-MR-WCM
UNITED STATES OF AMERICA )
)
v. ) ORDER
)
PAUL GORDON DAY, )
)
Defendant. )
______________________________________ )
This matter is before the Court on Defendant’s “Motion to Request 2nd
Federal Detention Hearing” (the “Motion to Reopen”). Doc. 72.
I. Relevant Procedural History
In a Bill of Indictment filed on February 8, 2023, Defendant was
charged with one count of bank robbery and one count of knowingly using,
carrying, possessing, and brandishing a firearm in furtherance of a crime of
violence. Doc. 1.
On February 27, 2023, Defendant made an initial appearance at which
time the Government moved for detention and for a continuance of the
detention hearing.
On March 3, 2023, arraignment and detention hearings were
conducted. Defendant was detained following the presentation of evidence
and argument.
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Subsequently, Defendant submitted multiple
pro se letters requesting a
“second detention hearing.” Docs. 13, 14, 28, 31. Those requests were denied
because Defendant was represented by counsel at the time.
On October 24, 2023, the Court granted Defendant’s request to
represent himself, and also appointed standby counsel for Defendant. Doc.
64.
On November 3, 2023, the Motion to Reopen was docketed. Doc. 72.
The Government responded in opposition on November 7, 2023. Doc.
76.
II. Legal Standard
In order for a detention hearing to be reopened, the court must find
“that information exists that was not known to the movant” at the time of the
detention hearing and that the information “has a material bearing” on the
issue of whether there are conditions of release that will reasonably assure
the defendant’s appearance as required and the safety of any other person
and the community. 18 U.S.C. § 3142(f)(2)(B).
As one court has explained, the second condition requires more than
the production of evidence that simply relates in some way to the detention
decision; it requires a defendant to present “evidence that, if true, affects the
outcome of the Court’s pre-trial detention inquiry under the Bail Reform Act.”
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United States v. Chansley, No. 21-CR-3 (RCL), 2021 WL 2809436, at *3
(D.D.C. July 6, 2021).
However, even where these conditions have been satisfied, the court
retains the discretion to determine whether to reopen the hearing. United
States v. Rivers, No. 19-20492, 2021 WL 5234516, at *1 (E.D. Mich. Nov. 10,
2021) (where the two conditions are met “[a] district court has discretion—
but is not required—to reopen a detention hearing”) (citing 18 U.S.C. §
3142(f)(2)(B) and United States v. Watson, 475 F. App’x 598, 600 (6th Cir.
2012)).
III. Discussion
A. The March 3, 2023 Detention Hearing
The Government’s evidence at the detention hearing included the
Pretrial Services Report (Doc. 8) and the testimony of FBI Special Agent
William Gang.
Because there was probable cause to believe that Defendant had
committed an offense under 18 U.S.C. § 924(c), a rebuttable presumption
existed that no condition or combination of conditions would reasonably
assure the appearance of Defendant as required and the safety of the
community.
The undersigned found that Defendant had not introduced sufficient
evidence to rebut the presumption, and, alternatively, that the Government
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had shown by clear and convincing evidence that no condition or combination
of conditions of release would reasonably assure the safety of any other
person and the community and by a preponderance of the evidence that no
condition or combination of conditions of release would reasonably assure
Defendant’s appearance as required.
The Court’s detention order referenced the following reasons that
supported detention: the weight of evidence against Defendant is strong;
Defendant is subject to a lengthy period of incarceration if he is convicted; the
lack of stable employment; the lack of a stable residence; the lack of
community or family ties to this District; and background information that is
unknown or unverified. Doc. 11 at 3.
B. The Basis for the Motion to Reopen
In support of his request to reopen the detention hearing, Defendant
states that “sober living” housing has been arranged, that he could afford a
$100,000 bond or $10,000 cash payment to ensure his appearance, and that
he has a serious medical condition involving gastric ulcers that “don’t respond
to typical prescription + over-the-counter medications” but that the detention
center is unwilling to provide treatment in the form of “cabbage juicing.” Doc.
72 at 1.
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Defendant also argues that the weight of the evidence in this case
should be reconsidered in light of information presented during a hearing on
his Motions to Suppress. Id. at 1–2.
Defendant asks the Court to consider the time he spent in custody and
his “serious + untreated medical condition.” Id. at 2.
Finally, Defendant asks the Court to consider that he no longer owns a
vehicle or maintains a residence in Tennessee. Id.
C. Analysis
Having considered the record, including the previous detention order
and the reasons supporting that decision, including as discussed orally at the
conclusion of the detention hearing, the undersigned finds that the Motion to
Reopen should be denied.
As an initial matter, Defendant has not sufficiently demonstrated that
much of the information he cites in support of the Motion to Reopen was
unknown to him at the time of the detention hearing.
Because Defendant did not request a pretrial interview before the
detention hearing, the Pretrial Services Report did not include information
about several topics, including but not limited to Defendant’s financial assets
and liabilities, physical health, substance abuse history, and mental health
history. Further, Defendant, who was represented by counsel at the time, did
not present evidence during the detention hearing.
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Defendant has not explained when he learned of his alleged serious
medical condition or why his lack of a vehicle or a residence in Tennessee
should be considered to be new information upon which the Court should
revisit its conclusion regarding pretrial detention.
However, even if the information referenced by the Motion to Reopen
was unknown to Defendant at the time of the detention hearing, the
information does not have a material bearing on the Court’s prior detention
decision.
The undersigned is not persuaded that the evidence presented during
the hearings on Defendant’s Motions to Suppress, all of which the
undersigned has recommended be denied, is inconsistent with the evidence
the Government presented during the detention hearing.
Next, to the extent Defendant has medical issues that require
treatment, the record does not give the Court reason to believe those issues
cannot be treated appropriately while Defendant is in custody.
Also, while Defendant states that he has arranged to reside at a “sober
living” facility and that he has some funds available for a bond, he does not
address his status relative to other charges. Specifically, the Government’s
evidence at the detention hearing indicated that Defendant was being held on
a $500,000 state bond and the Pretrial Services Report indicated that a
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warrant for Defendant remained outstanding in Nashville, Tennessee on a
charge of aggravated assault on a nonfamily member.
IT IS THEREFORE ORDERED THAT Defendant’s “Motion to Request
2nd Federal Detention Hearing” (Doc. 72) is DENIED.
Signed: November 7, 2023
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