USA v. Weeks et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-078-JL-02
Shelley Weeks
REPORT AND RECOMMENDATION
In response to the United States Probation Office’s
February 18, 2021 filing of a bail violation report (Doc. No.
115) in this case, and the court’s issuance of a summons,
defendant Shelley Weeks appeared via videoconference at a bail
revocation hearing on March 2, 2021 before the undersigned
magistrate judge. 1 	For reasons stated below, the district judge
should revoke Ms. Weeks’s release and order her detained at this
time, pending sentencing.
1 An in-person hearing did not occur on March 2, 2021, due to
the health and safety precautions taken in response to the
COVID-19 pandemic. 	See Standing Order ADM-1, 20-35 (Dec. 8,
2020); Standing Order ADM-1, 20-25 (July 24, 2020). 	At the
hearing, Ms. Weeks waived her right to an in-person hearing and
consented to a hearing by videoconference. 	The hearing was
listed on the public docket on the court’s website, and public
access to the hearing was available by video in accordance with
the court’s Standing Order ADM-1, 20-7 (Mar. 23, 2020). 	The
court made findings regarding the limitations on in-person
public access on the record. 	See March 2, 2021 Public Access
Findings (Doc. No. 117). 	The court’s Standing Orders relating
to COVID-19 are available at http://www.nhd.uscourts.gov/court-
response-coronavirus-disease-covid-19.
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Procedural Background
On June 20, 2018, Ms. Weeks was arraigned in this court on
a charge of conspiracy to distribute 40 grams or more of the
controlled drug fentanyl, in violation of 21 U.S.C. § 846 and 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). 	At that time, the court
released her on personal recognizance bail with conditions
including pretrial services supervision. 	See Doc. No. 9.
Since that date, Ms. Weeks has appeared before the court
for five hearings on bail violation reports, including the March
2, 2021 hearing. 	The first three hearings, occurring in
November 2018, February 2019, and March 2019, while Ms. Weeks
was on pretrial release, each arose from multiple positive drug
tests for controlled substances (fentanyl or cocaine).
Following each hearing, the court ordered her release, subject
to conditions including participation in a medication-assisted
substance abuse treatment program.
On March 26, 2019, Ms. Weeks pleaded guilty to the drug
distribution conspiracy charge pursuant to a plea agreement
between Ms. Weeks and the government. 	The court accepted her
guilty plea and set the matter for sentencing on July 24, 2019.
Although upon her plea she became subject to what is ordinarily
mandatory detention pending sentencing under 18 U.S.C.
§ 3143(a)(2), the government recommended that there were
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“exceptional reasons” why detention would be inappropriate under
18 U.S.C. § 3145(c). 	After considering the United States
Attorney’s Office’s agreement to allow Ms. Weeks to apply for
admission into the court’s LASER Docket Program, 2 the impact of
pre-sentencing detention on Ms. Weeks’s daughter, and the
parties’ joint recommendation that she remain released pending a
final decision on her LASER application, the court released Ms.
Weeks subject to the previously-imposed bail conditions, pending
sentencing.
On May 29, 2019, Ms. Weeks’s supervising probation officer
filed a bail violation report stating that the defendant had
been arrested and charged with misdemeanor Theft by Unauthorized
Taking, in violation of N.H. Rev. Stat. Ann. § (“RSA”) 637:3
(based on a report that she shoplifted $114.92 worth of
merchandise from Market Basket on May 9, 2019). 3 	See Doc. No.
49. 	The (fourth) bail violation hearing in this case, held on
2 “The LASER Docket is a court rehabilitative program for
those defendants/offenders whose qualifying crimes/criminal
history are attributable to drug abuse and/or addiction.” 	ADM-
1, 16-2 (Nov. 7, 2016) (“LASER Docket: Law Abiding. Sober.
Employed. Responsible. Four-Phase Program”). 	Admission into the
program requires, among other things, the agreement of the
United States Attorney’s Office, the participant’s execution of
a LASER participation agreement, and final acceptance by the
LASER Docket team. 	See id.
3 See RSA 637:11, II (theft of property valued at less than
$1,000 is a misdemeanor).
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June 13, 2019, related to that report. 	On that date, in
anticipation of Ms. Weeks’s final acceptance and entry into the
LASER Docket Program, the court adopted the parties’ joint
recommendation that Ms. Weeks remain released, subject to
previously imposed conditions and an additional requirement of
home detention with location monitoring. 	See June 13, 2019
Order (Doc. No. 53).
On June 26, 2019, the defendant began participating in
LASER. 	See Doc. No. 55. 	Her participation lasted fourteen
months, during which the court issued four Orders on Violation
of Conditions of the LASER program, including an August 28, 2020
Order (Doc. No. 112) that terminated her from the program. 	On
October 9, 2019, the court ordered that Ms. Weeks be subject to
both a curfew and electronic monitoring for two weeks. 	Doc. No.
81. 	And on April 23, 2020, the court ordered Ms. Weeks detained
on a date to be determined due to violations of the terms of her
“LASER Agreement/Order on Conditions of Release.” 	See Apr. 23,
2020 Order (Doc. No. 100).
On August 28, 2020, the court terminated Ms. Weeks’s
participation in the LASER Docket program without prejudice and
ordered her detained until August 31, 2020. 	See Aug. 28, 2020
Order (Doc. No. 112). 	On September 3, 2020, the court issued an
order releasing Ms. Weeks, subject to conditions pending
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sentencing, including that she was eligible to reapply for
acceptance into the LASER Docket program after January 1, 2021
if she had complied with all of the conditions of release during
the 120-day period after the date of that Order. 	See Doc. No.
111.
Ms. Weeks reapplied for admission to the LASER program in
January 2021. 	But before she resumed participation in LASER,
Ms. Weeks’s supervising probation officer reported that she had
been charged with misdemeanor Theft by Deception, in violation
of RSA 637:4, and summoned to the Concord District Court to
answer that charge, during the time she was subject to
conditions set by the court’s September 3, 2020 Order. 	Doc. No.
115.
The police report for the pertinent incident states that on
January 31, 2021, a Walmart employee saw Ms. Weeks swapping UPC
codes on items she selected, and then paying for nine items in
the self check-out area at the lower price, at a cost difference
of $153.66. 	The police report indicates that Ms. Weeks
essentially admitted to the offense when approached at the store
by a member of the Concord Police Department (“CPD”). 	A CPD
Officer issued a summons to Ms. Weeks directing her to appear in
the Concord District Court on March 8, 2021. 	The LASER team did
not accept Ms. Weeks’s application for re-admission, and, on
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February 18, 2021, this court issued a summons requiring her
appearance at the March 2, 2021 bail revocation hearing.
The parties in this case proceeded by offers of proof at
the March 2, 2021 hearing. 	The government argued in favor of
bail revocation and detention. 	Ms. Weeks, who was represented
by counsel, objected, and argued in favor of release.
Discussion
I. 	Mandatory Detention
The court’s acceptance of Ms. Weeks’s plea of guilty on
March 26, 2019 subjected her to the mandatory detention
provision of 18 U.S.C. § 3143(a)(2), which applies to defendants
who have been convicted of certain drug crimes or violent crimes
who have not yet been sentenced. 	A person otherwise subject to
mandatory detention may be released while awaiting the
imposition or execution of a sentence “if it is clearly shown
that there are exceptional reasons” why presentencing detention
would be inappropriate, 18 U.S.C. § 3145(c), and if the judge
finds by clear and convincing evidence that she is “not likely
to flee or pose a danger to the safety of any other person or
the community if released” subject to conditions, id.
§ 3143(a)(1). 	See United States v. Farlow, 824 F. Supp. 2d 189,
193 (D. Me. 2011); United States v. Carretero, No. 98-CR-418TJM,
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1999 U.S. Dist. LEXIS 17623, at *8, 1999 WL 1034508, at *3
(N.D.N.Y. Nov. 4, 1999) (Ҥ 3145(c) has been applied to post-
plea and pre-sentence, non-appellate situations”). 	The burden
of proof as to the existence of exceptional reasons, and as to
flight risk and dangerousness rests with the defendant. 	See
Fed. R. Crim. P. 46(c); United States v. Weiner, 972 F.2d 337,
1992 U.S. App. LEXIS 28794, at *8, 1992 WL 180697, at *1 (1st
Cir. July 31, 1992) (unpublished table decision).
The district court has discretion to determine what sort of
reasons might be sufficiently “exceptional” so as to render
detention inappropriate under section 3145(c). 	United States v.
McCabe, 940 F.2d 646, 1991 U.S. App. LEXIS 20448, at *6 (1st
Cir. May 8, 1991). 	Such factors may include the likelihood of a
short sentence, whether the defendant’s criminal conduct was
aberrational, and whether the hardship of confinement would be
“unusually harsh” for this individual. 	United States v. Garcia,
340 F.3d 1013, 1019 (9th Cir. 2003). 	If the reasons previously
warranting post-plea, presentencing release no longer exist or
are no longer exceptional, the court may revisit its release
determination under § 3145(c). 	See Carretero, 1999 U.S. Dist.
LEXIS 17623, at *17-*18, 1999 WL 1034508, at *6.
At the March 2, 2021 hearing, the government argued that
participation in the LASER Docket program generally provides an
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exceptional reason why detention is inappropriate, warranting
release for those defendants who have been accepted into the
program. 	Ms. Weeks previously fit into that category prior to
her termination from LASER, and the interruption of her return
to the program. 	At this point, the LASER program no longer
provides her with an exceptional reason for the court to find
that detaining her is inappropriate.
The defendant argues that other exceptional reasons
warranting release include: that Ms. Weeks has demonstrated
generally improved compliance with her release conditions; that
her prior difficulty complying with conditions of confinement
stemmed from mental health issues she is now beginning to
address; that the January 31, 2021 shoplifting incident was
consistent with a compulsive disorder, not criminality; that she
has a history of trauma; and that her detention pending
sentencing will have a grave impact on her twelve-year-old
daughter, whose father is also incarcerated.
A defendant’s compliance with conditions of release is
required and expected, not exceptional. 	United States v.
Bernard, No. 1:12-CR-00022-JAW-02, 2013 U.S. Dist. LEXIS 14984,
at *5-*6, 2013 WL 145582, at *2 (D. Me. Jan. 14, 2013). 	In that
regard, Ms. Weeks’s engagement in counseling and treatment,
which she credits as a cause of her improved compliance, has
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been a condition of her release, and while commendable, is also
not an exceptional reason why detention would be inappropriate.
The defendant’s reliance on her history of trauma and
shoplifting as a manifestation of a compulsive disorder
(kleptomania) also fails to warrant a finding of exceptional
reasons. 	Defendant has not shown that her history of trauma
makes confinement inappropriate at this time.
As to kleptomania, Ms. Weeks has offered her treating
psychologist’s letter listing her diagnoses and indicating that
kleptomania could not presently be ruled out. 	Ms. Weeks reports
she has been working on self-control strategies and ways to
avoid shopping without a chaperone who could deter her actions.
She has also been referred for further testing and evaluation.
But she does not presently have a diagnosed condition that
accounts for shoplifting. 	And even if the court were to find
she has such a condition, the court would not find upon the
record before it that a compulsion to engage in property crimes
that she is struggling to control is grounds for deeming
detention inappropriate pending sentencing.
An exceptional family situation warranting release under
§ 3145(c) “may arise ‘when the defendant is raising small
children by himself or herself, and the children have special
needs for which only the defendant can provide.’” 	United States
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v. Loera, No. CR 13-1876 JB, 2017 U.S. Dist. LEXIS 96221, at
*79, 2017 WL 3098257, at *26 (D.N.M. June 22, 2017) (citation
omitted). 	The information before this court is that Ms. Weeks’s
daughter has a learning disability, the girl’s father is
incarcerated, and there is no other parent or grandparent who
can step in while Ms. Weeks is incarcerated. 	Without minimizing
the hardship Ms. Weeks’s detention could impose on her daughter,
the court does not deem those circumstances to be exceptional
relative to the situation many families face when their loved
ones are incarcerated. 	See United States v. Loaiza, No. 18-cr-
134-01-PB, 2018 U.S. Dist. LEXIS 207093, at *4, 2018 WL 6421657,
at *2 (D.N.H. Nov. 20, 2018) (“[p]ersonal reasons, such as
caring for family members, being gainfully employed, and caring
for young children” with unusual health problems do not
generally rise to level of exceptional for purposes of
determining whether to release a defendant pursuant to
§ 3145(c)), R&R approved, 2018 U.S. Dist. LEXIS 206058, 2018 WL
6418894 (D.N.H. Dec. 6, 2018). 	As the court is aware of no
exceptional reasons sufficient to warrant Ms. Weeks’s release
under § 3145(c) at this time, detention is mandatory.
Accordingly, the district judge should revoke her bail and order
her detained pending sentencing.
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II. 	Section 3148(b)
The defendant argues that the court should apply 18 U.S.C.
§ 3148(b) in determining whether Ms. Weeks should remain
released on bail at this time. 	If the court were to find
mandatory detention under § 3145(c) is not required, application
of § 3148(b) independently provides a basis for the court to
revoke Ms. Weeks’s release.
A. 	Standard
Under § 3148(b), a judge who has issued a release order may
thereafter issue an order of revocation of release and detention
of the defendant if, after a hearing, the judge finds that there
is “probable cause to believe that the person has committed a
Federal, State, or local crime while on release.” 	18 U.S.C.
§ 3148(b)(1)(A). 	“Probable cause” under section 3148(b)(1)(A)
means “that the facts available to the judicial officer ‘warrant
a man of reasonable caution in the belief’ that the defendant
has committed a crime while on bail.” 	United States v. Gotti,
794 F.2d 773, 777 (2d Cir. 1986) (citation omitted). 	The burden
of showing probable cause under section 3148(b)(1)(A) rests with
the government. 	United States v. Barnett, No. 05-CR-095-01-SM,
2012 WL 6552797, at *1, 2012 U.S. Dist. LEXIS 177406, at *1
(D.N.H. Dec. 14, 2012).
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In addition to probable cause, the court must find either
that: (1) based on the factors set forth in 18 U.S.C. § 3142(g),
“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 (2) that
“the person is unlikely to abide” by any condition of release.
18 U.S.C. § 3148(b)(2)(A)-(B); see generally United States v.
Manafort, 897 F.3d 340, 345 (D.C. Cir. 2018) (a finding that the
defendant is unlikely to abide by conditions of release is
sufficient to provide grounds for revoking bail). 	The findings
regarding risk of flight, dangerousness, and a defendant’s
unlikelihood of compliance with conditions of release may be
established by a preponderance of the evidence at the revocation
hearing. 	See Gotti, 794 F.2d at 778. 	This court places that
burden on the government. 4
4 In general, in the pre-sentencing context, the burden of
establishing that the defendant will not flee or pose a danger
to any other person or to the community rests with the
defendant. 	See Fed. R. Crim. P. 46(c). 	It would appear logical
that the defendant should continue to bear that burden of
persuasion in the context of a hearing to revoke bail in the
pre-sentencing context. 	See United States v. Carretero, No. CR.
98-CR-418TJM, 1999 U.S. Dist. LEXIS 17623, at *27, 1999 WL
1034508, at *9 (N.D.N.Y. Nov. 4, 1999). 	But there is authority
to the contrary. 	See, e.g., March 1, 2021 R&R, United States v.
Patch, No. 18-cr-187-SM-3 (D.N.H. March 1, 2021) (ECF No. 84),
slip op. at 3-4 (government generally has burden to prove by
preponderance of evidence the requirements of section
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B. 	Probable Cause
On January 31, 2021, while subject to conditions of
release, a CPD officer issued Ms. Weeks a summons to appear in
Concord District Court on a misdemeanor theft charge. 	The bail
violation report refers to a CPD officer’s conclusion, in a
January 31, 2021 police report, that Ms. Weeks swapped the UPC
codes on nine items at Walmart with the UPC codes on items of
lesser value, resulting in a price difference of $153.66, and
then purchased those items at the lower cost. 	See Doc. No. 115.
The supervising probation officer stated during the March 2,
2021 hearing that, according to the CPD report, Ms. Weeks made
inculpatory statements when questioned by a CPD officer at the
scene. 	The information before this court warrants a finding
that there is probable cause to believe that Ms. Weeks committed
a misdemeanor theft offense while on bail. 	That finding is
sufficient to satisfy the “probable cause” prerequisite to the
issuance of a revocation order under § 3148(b)(1)(A).
3148(b)(2)(A) or (B); United States v. Poinsett, 953 F. Supp.
37, 38 (N.D.N.Y. 1997); cf. United States v. Jessup, 757 F.2d
378, 382 (1st Cir. 1985) (legislative history of section
3148(b)’s rebuttable presumption of dangerousness indicates that
the Bail Reform Act “does not impose a burden of persuasion even
upon a defendant found likely to have just committed a crime
while on bail”).
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C. 	Likelihood of Compliance
Ms. Weeks has been subject to conditions of release since
June 2018. 	In that time period, she has come before this court
five times for bail revocation hearings: three times for
multiple positive drug tests for fentanyl and cocaine, and twice
for misdemeanor shoplifting charges. 	Her compliance with LASER
Docket conditions was spotty, resulting in four orders of
violation and culminating in her termination from that program.
Ms. Weeks received clear notice in each prior bail revocation
hearing and throughout the LASER program that compliance with
conditions is required to remain on release, and that a
principal requirement is that she avoid committing any federal,
state, or local offense. 	In particular, by way of the May 29,
2019 bail violation report and the ensuing June 13, 2019
hearing, she received notice that shoplifting could result in
bail revocation and detention. 	Ms. Weeks’s most recent release
order provided her with the opportunity to re-enter the LASER
program if she demonstrated compliance with all of the court’s
conditions of release for 120 days. 	Less than one month after
the end of that 120-day period, Ms. Weeks was charged with
misdemeanor theft and summoned to appear in state court to
answer that charge.
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Ms. Weeks’s recurring noncompliance with her conditions of
release, after she has been given multiple chances to
demonstrate her intent to comply, and after the court imposed
more restrictive conditions, including a limited period of
detention, is a serious concern for this court. 	While none of
Ms. Weeks’s instances of noncompliance have involved violence,
none have resulted in substantial financial loss to any
individual, and, since her March 26, 2019 guilty plea, none have
involved illicit drug use, she has twice failed to abide by the
condition prohibiting her from engaging in criminal conduct
while on release awaiting sentencing. 	These violations
demonstrate that she is not likely to comply with any condition
or combination of conditions going forward. 5 	See United States
v. Martin, 447 F. Supp. 3d 399, 403 (D. Md. 2020) (finding that
“[t]he best predictor of how [the defendant] will behave if he
were to be released is how he has behaved when released in the
past”); Poinsett, 953 F. Supp. at 39 (defendant’s repeated
failure to comply with conditions, “whether by choice or as a
5 Ms. Weeks has proposed location monitoring, home
confinement, and a requirement that she not enter any retail
establishment except to shop for food with a chaperone as
conditions of confinement. 	But she has not identified a
chaperone, and a restriction allowing Ms. Weeks to shop for food
would provide no assurance regarding her compliance with
conditions, given her shoplifting history.
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result of his addiction,” warranted finding that government
satisfied its burden under § 3148(b)(2)(B)).
The court’s findings of probable cause that Ms. Weeks
committed a crime while on release, and the unlikelihood that
she will abide by conditions of release, are grounds to revoke
her bail at this time. 	See Manafort, 897 F.3d at 345.
Accordingly, the district judge should revoke Ms. Weeks’s
release and order her detained pending sentencing.
Conclusion
For the foregoing reasons, the district judge should:
1. 	Revoke Ms. Weeks’s release order;
2. 	Direct that she be detained pending sentencing; and
3. 	Commit her to the custody of the Attorney General or
his designated representative for confinement in a
correctional facility, where:
a. 	Ms. Weeks shall be afforded a reasonable
opportunity for private consultation with defense
counsel; and
b. 	On order of a court of the United States or on
request of an attorney for the government, the person
in charge of the correctional facility shall deliver
Ms. Weeks to the United States Marshal for the purpose
of effecting Ms. Weeks’s appearance at court
proceedings.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
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R. Crim. P. 59(b)(2). 	The fourteen-day period may be extended
upon motion. 	Id. 	Failure to file objections within the
specified time waives the right to appeal the district court’s
order. 	Id.
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 5, 2021
cc: 	Michael J. Iacopino, Esq.
Jaye Rancourt, Esq.
Jennifer C. Davis, Esq.
Seth R. Aframe, Esq.
U.S. Probation
U.S. Marshal
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