Order — United States v. Johnson (Dkt. 18, W.D. Mo.)

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An order by United States Magistrate Judge W. Brian Gaddy in United States of America v. Charles Johnson, Case No. 21-00213-01-CR-W-HFS, in the U.S. District Court for the Western District of Missouri, Western Division, dated October 1, 2021. It rules on the defendant's motion to reconsider the order of detention and set conditions of release (Doc. 10), which the government opposed on September 13, 2021 (Doc. 17). It recites that on August 5, 2021 Johnson was charged by criminal complaint, supported by the affidavit of Special Agent Elizabeth Gentry, with being a felon in possession of a firearm, and that after an August 10, 2021 hearing Magistrate Judge Lajuana M. Counts found no conditions would assure the defendant's appearance and community safety. The order denies the motion and keeps the defendant detained.

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IN THE UNITED STATES DISTRICT COURT FOR THE
                            WESTERN DISTRICT OF MISSOURI
                                 WESTERN DIVISION

    UNITED STATES OF AMERICA,                       )
                                                    )
                           Plaintiff,               )
                                                    )
    vs.                                             )        Case No. 21-00213-01-CR-W-HFS
                                                    )
    CHARLES JOHNSON,                                )
                                                    )
                           Defendant.               )

                                                  ORDER

          Pending is Defendant’s Motion to the Magistrate Court to Reconsider Its Order of

Detention and to Set Conditions of Release. Doc. 10. The Government filed its Opposition on

September 13, 2021. Doc. 17. Defendant did not file a reply, and the time for doing so has passed.

L.R. 7.0(c). After carefully reviewing the record and the parties’ briefing, the Court finds

Defendant’s motion should be DENIED.

          I.      Background

          On August 5, 2021, Defendant was charged by criminal complaint with being a felon in

possession of a firearm. 1 Doc. 1. The complaint was accompanied by an affidavit prepared by

Special Agent Elizabeth Gentry. Doc. 1-1. On August 10, 2021, United States Magistrate Judge

Lajuana M. Counts conducted a detention hearing. Doc. 9. After considering the evidence and

the arguments of the parties, Judge Counts found there were no conditions or combination of

conditions that would reasonably assure Defendant’s appearance and the safety of any other person

and the community.         Doc. 8.      Judge Counts ordered Defendant detained pending further

proceedings in this case. Id.



1
  Defendant was subsequently charged by grand jury indictment with the same offense. Doc. 11. The indictment was
returned on August 31, 2021, after the detention hearing was conducted in this matter.


               Case 4:21-cr-00213-HFS Document 18 Filed 10/01/21 Page 1 of 4

       The detention order cited several factors, including the weight of the evidence against

Defendant; a potential lengthy period of incarceration if he is convicted; his prior criminal history;

his participation in criminal activity while on probation, parole, or supervision; his history of

violence or use of weapons; his history of alcohol or substance abuse; his lack of stable

employment; his lack of stable residence, his prior failure to appear in court; his background

information was not known or verified; and his prior violations of probation, parole, or supervised

release. Id. at 2-3. The detention order also noted the Court’s concern with the nature of

Defendant’s prior convictions, his conduct violations while incarcerated, and his actions at the

time of his arrest in this case. Id. at 3. The order also referenced that Defendant presented no

home plan if he were to be released. Id.

       On August 30, 2021, Defendant moved for reconsideration of the detention order. Doc.

10. In his motion, Defendant averred that towards the conclusion of the detention hearing, “the

Court advised it would reconsider its detention order if Mr. Johnson could provide a viable home

plan.” Doc. 10 at 1. Attached to the motion was an internal memorandum indicating Defendant’s

wife, Monica Johnson, would be willing to have Defendant reside at her home. Doc. 10-1.

       The Government filed its Opposition on September 13, 2021. Doc. 17. The Government

summarized Defendant’s criminal history, which includes convictions for unlawful use of a

weapon, second degree murder, and armed criminal action. Id. at 3. It observed that Defendant

has had numerous contacts with law enforcement, conduct violations while in prison, and parole

violations upon release. Id. The Government also referenced the affidavit of and testimony from

Special Agent Gentry who detailed Defendant’s failure to comply with law enforcement

commands at the scene of his arrest in the instant case. Id. at 4. More particularly, the affidavit

described police being called to a report of shots fired and observing multiple individuals suffering

from gunshot wounds. Doc. 1-1 at 2. The affidavit stated Defendant was in a vehicle with a rifle

                                      2
          Case 4:21-cr-00213-HFS Document 18 Filed 10/01/21 Page 2 of 4

in plain sight, officers requested him to exit the vehicle, he did not comply with the verbal

commands, and police had to remove him from the vehicle. Id. at 2. The Government contends

Defendant’s motion to reconsider “does little by way of reasonably assuring his appearance in this

matter in the future or for assuring that he will not endanger the safety of any other person or the

community if released.” Doc. 17 at 4.

       II.     Discussion

       18 U.S.C. § 3142(f) provides for a detention hearing to be reopened “at any time before

trial 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 of 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.” By its express terms, this provision applies to reconsideration

of a detention order and provides that reconsideration is permissible “only when there is new

information that would materially influence the judgment” concerning potential flight risk and

potential harm to any other person or the community. United States v. Cisneros, 328 F.3d 610,

614 (10th Cir. 2003).

       Based on the record before it, the Court finds the additional information regarding

Defendant’s proffered home plan does not have a material bearing on the issue of whether there

are conditions of release that will reasonably assure the appearance of Defendant and the safety of

any other person and the community. The Court further finds that the additional information does

not warrant reopening the detention hearing.

       Defendant is charged with a serious crime and faces a lengthy period of incarceration if

found guilty. Judge Counts found, and the undersigned agrees, that the evidence against Defendant

presented at the combined preliminary hearing and detention hearing is strong. Defendant is

alleged to have been present in a vehicle while possessing a rifle. According to the affidavit, the

                                      3
          Case 4:21-cr-00213-HFS Document 18 Filed 10/01/21 Page 3 of 4

vehicle was parked in an area where police were called due to a report of shots being fired, and a

victim of an apparent gunshot wound was near the vehicle. The affidavit indicated Defendant was

non-compliant with verbal commands, and the police had to remove him from the vehicle. Further,

the evidence established Defendant had prior felony convictions for unlawful use of a weapon,

second degree murder, and armed criminal action. He also had numerous other municipal court

matters, contacts with law enforcement, institutional conduct violations, and supervision

violations. The evidence also showed Defendant has a significant drug abuse problem.

        The information in the pending motion to reconsider does not negate or alleviate the

Court’s concerns about flight risk and the safety of the community. A home plan does not address

Defendant’s significant criminal history, some of which involved weapons and crimes of violence.

The proposed home plan does not discuss the concerns identified by the Court regarding

Defendant’s poor conduct while in prison and on supervision. Further, the facts of the instant case

justify the concerns the Court identified in its initial detention order. The newly proffered

information concerning a home plan does not have a material bearing on the issue of whether there

are conditions of release that will reasonably assure the appearance of Defendant at future court

proceedings and the safety of other persons and the community. Based on its careful review of the

entire record, the Court finds that continued detention is warranted.

        Based on the foregoing, Defendant’s Motion to the Magistrate Court to Reconsider Its

Order of Detention and to Set Conditions of Release (Doc. 10) is DENIED. Defendant shall

remain detained in the custody of the United States Marshal pending further proceedings in this

case.

        IT IS SO ORDERED.

DATE: October 1, 2021                           /s/ W. Brian Gaddy
                                              W. BRIAN GADDY
                                              UNITED STATES MAGISTRATE JUDGE

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          Case 4:21-cr-00213-HFS Document 18 Filed 10/01/21 Page 4 of 4

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