Motion — United States v. Shibley (Dkt. 72, W.D. Wash. No. 2:20-cr-00174)

Record facts

U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 72 · 2021-02-24 · Docket on CourtListener

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ORDER 
CR20-0174-JCC 
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THE HONORABLE JOHN C. COUGHENOUR 
UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF WASHINGTON 
AT SEATTLE 
UNITED STATES OF AMERICA, 
 
Plaintiff, 
v. 
ERIC SHIBLEY, 
 
Defendant. 
CASE NO. CR20-0174-JCC 
ORDER 
 
This matter comes before the Court on Defendant Eric Shibley’s motion for a 
competency hearing (Dkt. No. 52) and motion to revoke United States Magistrate Judge 
Michelle Peterson’s order detaining Mr. Shibley before trial (Dkt. No. 59). Having thoroughly 
considered the parties’ briefing and the relevant record, the Court FINDS that Mr. Shibley is 
competent, and a formal competency hearing is not necessary. The Court also DENIES Mr. 
Shibley’s motion to revoke the detention order. 
I. 
BACKGROUND 
The Government alleges that Mr. Shibley defrauded several financial institutions and the 
United States Small Business Administration and then laundered the proceeds. (See Dkt. No. 31.) 
Specifically, the Government alleges that Mr. Shibley fraudulently obtained Paycheck Protection 
Program and Economic Injury Disaster Loan funds by, among other things, “making false 
statements about the monthly payroll expenses, employees, and revenues of [various companies 
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Mr. Shibley controlled]” and falsely representing that he was not on probation, which was a 
prerequisite for obtaining the loans. (Id. at 9, 14; Dkt. No. 1 at 10–11.)   
Mr. Shibley was arrested on June 30, 2020, and was released subject to several 
conditions, including that he not “commit a federal, state, or local crime during the period of 
release.” (Dkt. Nos. 6, 7.) At 12:37 a.m. on September 14, 2020, Seattle Police Officer Jeremy 
Montgomery was dispatched to Mr. Shibley’s residence after the woman living with him, M.B.,1 
called 9-1-1 and reported that her boyfriend punched her in the face. (Dkt. No. 25-1 at 2.) When 
Officer Montgomery arrived, M.B. reported that she and Mr. Shibley had an argument that night 
that scared her, and that Mr. Shibley had assaulted her two days earlier. (Id.) Officer 
Montgomery observed healing bruises on her face and right leg. (Id.) Police were unable to 
locate Mr. Shibley, and M.B. told Officer Montgomery that Mr. Shibley locked himself in a 
bedroom and refused to come out. (Id.) When police reached Mr. Shibley by phone later, he 
confirmed he was in the bedroom when Officer Montgomery was at the home. (Id.) 
 The next night, M.B. called 9-1-1 again, and Officer Montgomery was dispatched to Mr. 
Shibley’s home at 1:06 a.m. (Dkt. No. 25-2 at 2.) When he arrived, Officer Montgomery 
observed injuries on M.B. that were not present the night before: fresh bruises under both of her 
eyes, a laceration on her nose, and swelling on her finger. (Id.) M.B. reported that she had been 
sleeping and Mr. Shibley woke her up, yelled at her, and hit her in the face repeatedly before 
fleeing. (Id.) After taking pictures of her injuries and arranging for M.B. to receive medical care, 
the officers found Mr. Shibley sitting in his car nearby and arrested him. (Id.) 
On September 28, 2020, Judge Peterson held a bond revocation hearing at which she 
reviewed the evidence and heard testimony from Officer Montgomery. (Dkt. No. 28.) Judge 
Peterson revoked Mr. Shibley’s bond and ordered him detained because she found that there was 
 
1 The parties have publicly identified M.B., who is alleged to be a victim of domestic violence, 
only by her initials. The Court finds it appropriate to do the same to protect her privacy. See, e.g., 
United States v. Loew, 593 F.3d 1136, 1137 n.1 (9th Cir. 2010) (referring to victim “by her 
initials to respect her privacy”).  
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probable cause to believe Mr. Shibley committed the crime of assault-domestic violence on 
September 12, 2020 and September 15, 2020, that he was unlikely to abide by any conditions of 
release, and that no conditions could reasonably assure the safety of M.B. or the community. 
(Dkt. No. 29.) 
About six weeks later, Mr. Shibley moved to reopen his detention hearing because: (1) 
M.B. had agreed to vacate Mr. Shibley’s home and he could change the locks so that she could 
not return, (2) his real estate business was suffering without his management, and (3) he found it 
difficult to participate in his defense in custody, particularly in light of restrictions the Federal 
Detention Center imposed as a result of the COVID-19 pandemic. (Dkt. No. 46.) The Court 
referred the motion to reopen detention to Magistrate Judge Peterson.  
Before the parties finished briefing that motion, the Court held a status conference at 
which counsel for Mr. Shibley expressed, for the first time, that Mr. Shibley may have been 
experiencing mental health issues impacting his competency to stand trial. (Dkt. No. 49.) From 
that point onward, the case proceeded on two parallel tracks: the Court ordered the parties to 
provide supplemental briefing regarding what measures the Court should take to address Mr. 
Shibley’s health, while the parties continued briefing the propriety of Mr. Shibley’s detention for 
Judge Peterson. (Id.) Two days later, Mr. Shibley reported several mental health conditions and 
formally requested a competency evaluation. (See Dkt. No. 52.) The day after that, Mr. Shibley 
raised his alleged mental health issues in his reply brief regarding his detention. (Dkt. No. 53 at 
4.) Judge Peterson held a hearing on November 20, 2020 and denied Mr. Shibley’s motion to 
reopen detention. (Dkt. No. 58.) Three days later, Mr. Shibley filed a two-sentence “Notice of 
Appeal” requesting that the Court review his detention de novo. (Dkt. No. 59.) The next day, the 
Court held a status conference at which it ordered a competency evaluation and stayed 
consideration of Mr. Shibley’s motion to revoke Judge Peterson’s detention order until the Court 
determined whether Mr. Shibley was competent. (Dkt. Nos. 61, 62.) 
Dr. Cynthia Low, a forensic psychologist at FDC SeaTac, provided the Court with her 
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evaluation of Mr. Shibley on February 1, 2021. (Dkt. No. 64.)2 The Court scheduled a status 
conference for February 10, 2021. (Dkt. No. 65.) The day before the status conference, Mr. 
Shibley filed a status memorandum in which he stipulated to his competency and withdrew his 
request for a formal competency hearing. (Dkt. No. 66 at 3.) Mr. Shibley’s memorandum also 
noted that Mr. Shibley had no further information to add regarding his motion to revoke Judge 
Peterson’s detention order. (Id.) Counsel for Mr. Shibley reiterated these positions at the status 
conference the next day. (Dkt. No. 61.) Accordingly, the Court addresses Mr. Shibley’s 
competency and detention based on the parties’ briefing.  
II. 
COMPETENCY  
The Court granted Mr. Shibley’s motion for a competency evaluation because there was 
reasonable cause to believe that he may have been suffering from a mental disease or defect that 
rendered him unable to assist properly in his defense or to understand the nature and 
consequences of the proceedings against him. (See Dkt. No. 62 at 1.) Specifically, Mr. Shibley 
reported that he was experiencing several severe mental health conditions, including 
hallucinations and delusions. (Dkt. No. 52 at 2–3.)  
After administering six psychological tests to Mr. Shibley, reviewing his available 
medical history, and evaluating his external communications, Dr. Low concluded that Mr. 
Shibley “is most likely malingering for the purpose of obtaining pre-trial release and evading 
criminal prosecution.” (Dkt. No. 68 at 24.) In short, Mr. Shibley’s performance on the 
psychological tests was so poor that it suggests that he is “feign[ing] cognitive and memory 
deficits and psychotic symptoms [because] he feels it will benefit his legal case.” (Id. at 25.) In 
addition, Mr. Shibley has not provided any evidence of a history of mental health issues. In fact, 
he affirmatively denied any history of mental health issues when he was interviewed by the 
 
2 The parties discovered that Dr. Low’s original report, filed under seal at docket number 64, 
contains communications that are arguably protected by the attorney-client privilege. The parties 
prepared a revised version of the report with the arguably privileged material redacted. (See Dkt. 
Nos. 67, 68.) The Court’s analysis is based entirely on the redacted version of the report. 
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Probation Office shortly after he was arrested in June 2020, (Dkt. No. 3 at 3), and when he was 
booked into the Federal Detention Center on September 21, 2020, (Dkt. No. 68 at 12). Finally, 
the e-mails Mr. Shibley sent from the FDC suggest that he is competent and is not suffering from 
the severe mental health issues he claims. Mr. Shibley wrote lengthy e-mails to his business 
partners explaining his legal circumstances and providing them with detailed instructions about 
how to manage his real estate investments and personal affairs while he is incarcerated. (Id. at 
16–18.) For example, he told them how to pay various mortgages, evict his tenants, access his 
bank accounts, pay his bills, and suggested prices at which they should sell his properties. (Id.) 
These e-mails suggest that he is not experiencing mental health issues that would impact his 
ability to understand the nature and consequences of the proceedings against him and assist in his 
defense.   
After Dr. Low completed her report, Mr. Shibley stipulated to his competency and 
withdrew his request for a competency hearing. (Dkt. No. 66 at 3.) Based on the Court’s review 
of Dr. Low’s report, the record, and Mr. Shibley’s stipulation, the Court FINDS that Mr. Shibley 
is competent and there is no genuine doubt about Mr. Shibley’s competency at this time. 
Therefore, there is no basis for the Court to hold a competency hearing sua sponte, in the 
absence of a request from either party. See United States v. Mikhel, 889 F.3d 1003, 1036–42 (9th 
Cir. 2018).  
III. 
DETENTION 
A. 
Standard of Review 
The Court reviews a magistrate judge’s order detaining a defendant before trial de novo. 
United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). Thus, the Court makes its own 
factual findings and reaches an independent conclusion about whether the defendant should be 
detained, without deference to the magistrate judge’s decision. Id.  Where, as here, the magistrate 
judge holds an evidentiary hearing, the Court may hold another evidentiary hearing at its 
discretion but is not required to do so. See id.; see also United States v. Oaks, 793 F. App’x 744, 
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747 (10th Cir. 2019). 
B. 
Legal Standard for Detention 
A person released under 18 U.S.C. § 3142 who violates a condition of release may be 
detained if the Court finds “probable cause to believe that the person has committed a Federal, 
State, or local crime while on release” and that “no condition or combination of conditions of 
release . . . will assure that the person will not flee or pose a danger to the . . . community” or that 
“the person is unlikely to abide by any condition or combination of conditions of release.” 18 
U.S.C. § 3148(b). If the Court finds probable cause to believe the defendant committed a felony 
while on release, there is a rebuttable presumption that the defendant should be detained. Id. 
In determining whether there is probable cause to believe Mr. Shibley committed a crime 
while on pretrial release, the Court must determine whether there “is a reasonable ground for 
belief of [Mr. Shibley’s] guilt.” Maryland v. Pringle, 540 U.S. 366, 371 (2003) (quoting 
Brinegar v. United States, 338 U.S. 160, 175 (1949)). “The probable-cause standard is incapable 
of precise definition or quantification into percentages because it deals with probabilities and 
depends on the totality of the circumstances.” Id. To determine whether there is probable cause 
to believe Mr. Shibley committed a crime, the Court must “examine the events leading up to the 
arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an 
objectively reasonable police officer, amount to’ probable cause.” Id. (quoting Ornelas v. United 
States, 517 U.S. 690, 696 (2003)). The Federal Rules of Evidence do not apply in proceedings to 
determine whether to grant or revoke supervised release. Fed. R. Evid. 1101(d)(3).  
C. 
Probable Cause to Believe Mr. Shibley Committed a Crime on Release 
Having reviewed the totality of the circumstances, the Court concludes there is probable 
cause to believe Mr. Shibley committed a crime while on pretrial release. First, neither party 
disputes that M.B. was injured, and with good reason: Officer Montgomery observed her injuries 
on both nights, he took photos of them, and, on the second night, paramedics transported M.B. to 
the hospital to receive medical treatment. (See Dkt. Nos. 25-1 at 2, 25-2 at 2, 27-1, 27-2.) 
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Second, M.B. told Officer Montgomery that Mr. Shibley assaulted her. (Dkt. Nos. 25-1 at 2, 25-
2.) Third, Mr. Shibley and M.B. live together at the residence to which M.B. called the police, 
nobody else was present when police arrived, nor is there any evidence that anyone else had been 
at the residence on the nights on which M.B. was injured. (Id.) Fourth, Mr. Shibley’s behavior 
after police were called suggests consciousness of guilt: the first night he locked himself in a 
bedroom and refused to come out while the police were present, and the second night he was 
found sitting in his car near the residence, even though it was after 1 a.m. on a Tuesday. (Id.) 
Fifth, Officer Montgomery had been called to Mr. Shibley and M.B.’s residence in the past and 
“they have a history of DV issues.” (Dkt. No. 25-1 at 2.) Based on the totality of this evidence, 
the Court concludes there is probable cause to believe Mr. Shibley assaulted M.B. on September 
12, 2020 and September 15, 2020.  
D. 
Detention 
The presumption of detention for committing a felony on pretrial release does not apply. 
Mr. Shibley was arrested for assault in the fourth degree under Washington Revised Code 
section 9A.36.041. (See Dkt. No. 25-2 at 3.) Assault in the fourth degree is generally a gross 
misdemeanor, unless the State proves that the defendant “has two or more prior adult convictions 
. . . for [certain domestic violence offenses] occurring after July 23, 2017.” See Wash. Rev. Code 
§ 9A.36.041(2)-(3). There is no evidence in the record showing that Mr. Shibley was convicted 
of the qualifying offenses within the relevant time period. Therefore, as far as the record shows, 
the offense Mr. Shibley is alleged to have committed on release is a misdemeanor.  
Although the presumption of detention does not apply, the Court concludes that Mr. 
Shibley should be detained because he is unlikely to abide by any conditions of release that 
would ensure M.B. and the community’s safety. The Court has concluded that there is probable 
cause to believe Mr. Shibley assaulted M.B. while he was simultaneously on federal supervised 
release and state probation. (See Dkt. No. 1 at 6–7.) The fact that he committed crimes on two 
nights in a row, even after the police were called to his home, suggests that he is unlikely to 
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abide by conditions of release necessary to ensure the safety of M.B. and the community.  
In addition, the Government has uncovered evidence suggesting that Mr. Shibley violated 
another condition of his release. When Mr. Shibley was released, he was prohibited from 
“incurring new credit charges, opening additional lines of credit, or obtaining a loan without 
approval of [his] U.S. Probation Officer.” (Dkt. No. 6 at 2.) In July 2020, while he was on 
release, Mr. Shibley agreed to purchase some property for $425,000. (Dkt. No. 50-1 at 2.) David 
Madrid, Mr. Shibley’s “commercial real estate broker and occasional property manager,” (Dkt. 
No. 22 at 4), told the Government that Mr. Shibley took out a loan for the property in M.B.’s 
name, (Dkt. No. 50 at 6), even though she “has no money,” has nowhere to live aside from Mr. 
Shibley’s residence, and Mr. Shibley “has supported her financially” over the past few years, 
(Dkt. No. 22 at 5.) This evidence suggests that Mr. Shibley took out a loan in violation of a 
condition of his release and attempted to hide that violation by using M.B. as a straw borrower. 
Although the Court does not rely on this violation to meet the first element for revocation under 
Section 3148(b)(1)(b), the Court finds that the evidence of this violation is sufficiently 
compelling for this incident to inform the Court’s assessment of whether Mr. Shibley is likely to 
abide by his conditions of release under Section 3148(b)(2)(B).  
IV. 
CONCLUSION 
For the foregoing reasons, the Court FINDS that Mr. Shibley is competent, and a formal 
competency hearing is not necessary. The Court also DENIES Mr. Shibley’s motion (Dkt. No. 
59) to revoke Magistrate Judge Peterson’s detention order. 
DATED this 24th day of February 2021. 
A  
John C. Coughenour 
UNITED STATES DISTRICT JUDGE 
 
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