USA v. Oliver et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
v. 	CASE NO. 22-CR-50032
MARCHELLO OLIVER 	DEFENDANT
ORDER
Before the Court for consideration is Defendant’s Motion for Reconsideration of Bond
(ECF NO. 65), and the Government’s response and objections thereto (ECF No. 67). 	The Court,
being well and sufficiently advised, finds as follows:
1. 	On March 31, 2022, Defendant requested a detention hearing which the Court
conducted on April 7, 2022. The purpose of the hearing was for the Court to determine whether
there were conditions of release that would reasonably assure the appearance of Defendant and the
safety of the community. 18 U.S.C. § 3142(f). 	Observing the requirements of the Bail Reform
Act, the Court heard testimony and considered the following factors: “(1) the nature and
circumstances of the offense charged;” “(2) the weight of the evidence against the person;” “(3)
the history and characteristics of the person;” and “(4) the nature and seriousness of the danger to
any person or the community that would be posed by the person's release.” 18 U.S.C. § 3142(g).
After consideration of these factors, as well as the pre-trial services report and addendum, the
Court entered an Order detaining Defendant pending trial. (ECF No. 11).
2. 	Defendant appealed to U.S. District Judge Timothy L. Brooks, who conducted a de
novo review and affirmed the detention decision. (ECF No. 43).
3. 	Subsequently, Defendant hired new counsel, secured a continuance of the trial date,
and filed the pending Motion for Reconsideration.
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4. 	Section 3142(f)(2) permits the Court to reopen a pretrial detention hearing
if the judicial officer finds that information exists that was not known to the movant
at the time of the hearing and that has a material bearing on the issue whether there
are conditions of release that will reasonably assure the appearance of such person
as required and the safety of any other person and the community.
“In other words, to reopen a detention hearing a defendant must, first, ‘present [] information that
was not known or available to him at the time of his original detention hearing,’ and then, second,
show that such information ‘is material to and has a substantial bearing on whether he should
remain detained.’” United States v. Petters, 2009 WL 205188, at *2 (D. Minn. Jan. 28, 2009)
(quoting United States v. Archambault, 240 F. Supp. 2d 1082, 1084 (D.S.D. 2002)).
4. 	Defendant’s Motion says that he can reside in the home of his fiancés’ parents; be
restricted from his own home; work; wear an ankle monitor; and submit to drug testing. (ECF No.
65, p. 2). 	The Government says, inter alia, Defendant’s information concerning a 3rd party
custodian may be new but is immaterial because the detention decision was based upon the danger
Defendant posed to society due to on-going criminal activity, and this evidence is unchanged.
5. 	With respect to the Defendant’s grounds for reconsideration, the only new
information is Defendant’s assertion that he can reside with his fiancés’ parents pending trial in
this matter; the remaining restrictions proposed by Defendant’s Motion are all conditions of release
that were available to the Court at its detention hearing in April. 	Even if Defendant’s fiancés’
parents are suitable to serve as Defendant’s custodians – and for purposes of consideration, the
Court will assume they are – this information would not outweigh evidence in the record upon
which the Court made its detention decision. Of particular importance to the Court was evidence
that Defendant is charged with illegally possessing a firearm and possessing that firearm in
connection with trafficking of fentanyl pills and powder; evidence Defendant’s family supplied
him with the firearm he stored under his mattress – provision of which was, at best, negligent and
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at worst, nefarious; evidence that unsecured fentanyl powder was found in the same room with the
firearm, and that three minor children lived in the home containing these items; evidence that
illegal activities by Defendant may have contributed to the deaths of 1-2 persons; and evidence
that Defendant had failed to appear in the past. During its April hearing, the Court found that Ms.
Garcia-Hernandez’ suitability to act as a third-party custodian rebutted the statutory presumption
of Defendant’s detention but did not outweigh evidence of § 3142(g) factors which favored
detention. The Court rejects any suggestion that the newly proposed custodians would outweigh
this evidence of record or tip the scales in favor of release. Finding that Defendant’s new evidence
regarding third-party custodians (a) would not be material and (b) and even if material, would not
have a substantial bearing on whether Defendant should be detained, the Court DENIES
Defendant’s Motion for Reconsideration of Bond (ECF No. 65) and CANCELS the Hearing on
the Motion for Reconsideration, previously scheduled for July 20, 2022, at 1:30 p.m.
IT IS SO ORDERED this 7 th day of July 2022.
_______________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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