Defendant’s Objection to Magistrate Judge’s Detention Order — United States v. Brenizer (Dkt. 41, D. Minn.)

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Defendant Kyle William Brenizer's objection to the magistrate judge's detention order, filed October 21, 2020 in United States of America v. Kyle William Brenizer, Crim. No. 20-CR-177 (ECT/HB), in the U.S. District Court for the District of Minnesota (Doc. 41). It states that after a hearing of about one hour on October 9, 2020, Magistrate Judge David T. Schultz ordered Brenizer detained and issued a written order the same day (ECF No. 27). Under Local Rule 72.2, Brenizer objects, arguing that the facts and argument at the hearing do not justify detention under either prong of 18 U.S.C. § 3142. It is signed by attorneys Andrew S. Birrell and Ian S. Birrell of Birrell Law Firm PLLC.

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CASE 0:20-cr-00177-ECT-TNL Doc. 41 Filed 10/21/20 Page 1 of 6




                           UNITED STATES DISTRICT COURT
                              DISTRICT OF MINNESOTA
                            CRIM. NO. 20-CR-177 (ECT/HB)


United States of America,

                       Plaintiff,
v.                                            DEFENDANT’S OBJECTION TO
                                              MAGISTRATE JUDGE’S DETENTION
Kyle William Brenizer,                        ORDER

                       Defendant.




                                       INTRODUCTION

         On October 9, 2020, Magistrate Judge David T. Schultz held a hearing on the

government’s motion for detention. After approximately a one-hour hearing, during

which the Magistrate Judge heard arguments from counsel, considered three exhibits

offered by the government in support of detention, and heard discussions regarding the

filings (specifically the bond report and the parties’ memoranda); the Court ordered Mr.

Brenizer detained.1 The Court issued a written order that same day (ECF No. 27).

         Pursuant to Local Rule 72.2, Mr. Brenizer objects to the Magistrate Judge’s ruling.

He argues the facts and argument developed at the hearing do not justify detention under

either prong of 18 U.S.C. § 3142.




1
    Mr. Brenizer has ordered a transcript of the October 9, 2020 detention hearing.

         CASE 0:20-cr-00177-ECT-TNL Doc. 41 Filed 10/21/20 Page 2 of 6




                              MAGISTRATE JUDGE’S ORDER

      Magistrate Judge Schultz’s Order found that detention was warranted. He found

facts including these supported that conclusion:

    “Mr. Brenizer has a lengthy criminal history, including convictions for offenses

      such as Third Degree Criminal Sexual Conduct, Drug Possession, Theft by Check

      Forgery, Obstruction of Legal Process, and Domestic Abuse – Violation of No

      Contact Order. Mr. Brenizer also has multiple pending felony charges involving

      theft, possession of stolen checks, check forgery, predatory offender knowingly

      violating registration requirement or intentionally provides false information, theft

      by swindle, and failure to appear.” (ECF No. 27 at ¶ 2).

    “Mr. Brenizer has a lengthy history of failing to comply with pretrial, probation,

      parole, and supervised release by engaging in new criminal activity, which

      includes three probation revocations.” (Id. at ¶ 3).

    “Mr. Brenizer has failed to appear at court proceedings which includes

      approximately thirty-six failures to appear in court from 2016 to the present. He

      has at least four active warrants for his arrest.” (Id. at ¶ 4).

    “Other reasons indicating Mr. Brenizer poses a risk of nonappearance include his

      substance abuse history, his use of aliases or false identifications, the pending

      charges, as well as his conduct during arrest for the instant offense. More

      specifically, Mr. Brenizer attempted to elude arrest on August 21, 2020, by hiding




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         CASE 0:20-cr-00177-ECT-TNL Doc. 41 Filed 10/21/20 Page 3 of 6




       behind a basement wall in his residence and thereafter refusing to surrender for at

       least three hours.” (Id. at ¶ 5).

    “[O]ther reasons indicating Mr. Brenizer poses a risk of danger include his violent

       behavior history, safety concerns for the community or a specific individual,

       history of charges involving sex offense/abuse/domestic violence, a charge

       involving a child, as well as his pattern of similar criminal activity history.” (Id. at

       ¶ 6).

       From these, the Court concluded that the government “demonstrated by a

preponderance of the evidence that no condition or combination of conditions will

reasonably assure Mr. Brenizer’s future appearance in Court”; and “demonstrated by

clear and convincing evidence that no condition or combination of conditions will

reasonably assure the safety of the community” if Mr. Brenizer is released pending trial.

(Id. at 3). Accordingly, the Court ordered him detained.

       The Magistrate Judge articulated the correct legal standards under 18 U.S.C. §

3142, yet Mr. Brenizer maintains the Court’s conclusions are in error and he requests this

Court reverse the Magistrate Judge’s decision and ordered him released subject to

conditions pending trial in this matter.

                                           ARGUMENT

       Because the offenses charged (wire fraud and money laundering) do not carry a

presumption of detention under 18 U.S.C. § 3142, the Court is only to order the

defendant detained if there are no combinations of conditions of release the Court could


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         CASE 0:20-cr-00177-ECT-TNL Doc. 41 Filed 10/21/20 Page 4 of 6




impose that would reasonably assure both the Defendant’s appearance and the safety of

the community.

       This Court should consider the totality of the facts when reviewing the detention

determination. Mr. Brenizer submits that his personal characteristics and criminal history

of Mr. Perez do not justify detention, nor do the facts the Magistrate Judge relied on in

his Order.

       Mr. Brenizer acknowledges that his criminal history could be troubling to a Court

(including his history of convictions for sexual offense/domestic assault and including his

failures to appear), but submits that there are conditions the Court could impose, such as

electronic monitoring (which Counsel believes Mr. Brenizer has never been on) which

would reasonably assure his appearance.

       Mr. Brenizer submits the Court should not rely on pending charges, including his

pending felony for failure to appear, because he is a presumptively innocent person who

is contesting those charges against him. Additionally, although the Court was correct in

finding that Mr. Brenizer had numerous failures to appear, he emphasizes that many of

these were caused by his being in custody on another case, and that multiple failures of

appearance would be entered when cases track together.

       Put simply, although there are various legitimate concerns a Court could have

ordering release, Mr. Brenizer argues the Magistrate Judge did not adequately consider

the possible conditions of release that could be imposed upon him. Mr. Brenizer has the

support of multiple friends and family members who could help ensure he complies with

conditions of pretrial release, including that he appear for Court. Mr. Brenizer could also

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         CASE 0:20-cr-00177-ECT-TNL Doc. 41 Filed 10/21/20 Page 5 of 6




be ordered to participate in electronic monitoring, which would likewise alleviate these

concerns.

                                      CONCLUSION

       Detention is a heavy constraint on a presumptively innocent person’s liberties; it is

not to be lightly imposed See, e.g., JAMA v. ASHCROFT, Civil No. 01-1172 (JRT/AJB),

at *6-7 (D. Minn. Jan. 12, 2004), writing:

       In Zadvydas, the Supreme Court held that the government could
       not detain removable aliens indefinitely, even where those aliens had
       committed serious crimes. 533 U.S. at 682. In reaching this conclusion, the
       Supreme Court discussed its preventive detention jurisprudence, and noted
       that preventive detention based on dangerousness is authorized only when
       limited     to "specially   dangerous" individuals      and    subject    to
       "Strong procedural protections." Id. at 693 (citing Kansas v. Hendricks, 521
       U.S. 346, 368 (1997) (upholding scheme that imposes detention upon "a
       small segment of particularly dangerous individuals" and provides "strict
       procedural safeguards")); United States v. Salerno, 481 U.S. 739, 747, 750-
       752 (1987) (in upholding pretrial detention, stressing "stringent time
       limitations," the fact that detention is reserved for the "most serious of
       crimes," the requirement of proof of dangerousness by clear and convincing
       evidence, and the presence of judicial safeguards), with Foucha v.
       Louisiana, 504 U.S. 71, 81-83 (1992) (striking down insanity-
       related detention system that placed burden on detainee to prove
       nondangerousness).

Id. A lengthy pre-trial detention of Mr. Brenizer is not necessary here.

       This Court should overrule the Detention Order and order Mr. Brenizer released

subject to conditions. It should do so because the government has not shown, by clear and

convincing evidence, that there exist no combination of conditions that are necessary to

assure the safety of the community; and the government has not shown, by a




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preponderance of the evidence, that there exist no combination of conditions that are

necessary to assure Mr. Brenizer’s appearance.




                                         Respectfully submitted,

Dated: October 21, 2020                  /s/ Ian S. Birrell
                                         Andrew S. Birrell (Attorney No. 133760)
                                         Ian S. Birrell (Attorney No. 0396379)
                                         Birrell Law Firm PLLC
                                         333 South 7th Street, Suite 2350
                                         Minneapolis, MN 55402
                                         Phone: (612) 238-1939
                                         andy@birrell.law | ian@birrell.law
                                         Attorneys for Defendant




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