Court filing
Information — United States v. Shibley (Dkt. 169, W.D. Wash. No. 2:20-cr-00174)
Filed June 6, 2022 in Shibley; one of 140 filings from this case.
Record facts
| Court | U.S. District Court for the Western District of Washington |
|---|---|
| Filed | 2022-06-06 |
U.S. District Court for the Western District of Washington · No. 2:20-cr-00174-JCC · Doc. 169 · 2022-06-06 · Docket on CourtListener
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ACE TRANSCRIPTS, INC. (206) 966-5050
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA,
)
) CR 20-174 JCC
Plaintiff,
)
)
vs.
)
)
ERIC SHIBLEY,
)
)
Defendant.
)
______________________________)
VERBATIM TRANSCRIPT OF PROCEEDINGS
OF
A MOTION HEARING
BEFORE THE HONORABLE MICHELLE L. PETERSON
11/20/2020
APPEARANCES
For the United States: Brian Werner & Laura Connelly
For Defendant: Michael Nance
Transcribed from electronic sound recording
Transcript produced by transcription service
ACE Transcripts, Inc.
720 Queen Anne Ave N. #311
Seattle, WA 98109
(206) 966-5050
Transcribed by Brian Killgore
Case 2:20-cr-00174-JCC Document 169 Filed 06/06/22 Page 1 of 24
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(Proceedings of 11/20/2020)
THE CLERK: Good morning, your honor. The
United States District Court for the Western District
of Washington is now in session, the Hon. Michelle L.
Peterson presiding.
Your honor, the matter before the court this
morning is a motion hearing in case CR 20-174, assigned
to Judge Coughenour, United States of America v. Eric
Shibley.
Counsel, please make your appearances beginning
with the government, then defense, and then the
appearance by Pretrial Services.
MR. WERNER: Good morning, your honor, Brian
Werner on behalf of the United States.
MS. CONNELLY: Laura Connelly on behalf of
the United States.
MR. NANCE: Good morning, your honor, Mike
Nance for Eric Shibley.
MS. McGLYNN: Good morning, your honor,
Angela McGlynn on behalf of US Probation and Pretrial
Services.
THE COURT: All right, good morning, Officer
McGlynn, good morning Mr. Nance, and good morning, Mr.
Werner and Ms. Connelly.
Mr. Shibley, can you hear me okay?
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THE DEFENDANT: Yes, your honor.
THE COURT: All right.
Now prior to this hearing, did you have an
opportunity to speak with Mr. Nance about appearing by
video today?
THE DEFENDANT: Yes, your honor.
THE COURT: And after consultation with Mr.
Nance, do you consent to appear by video?
THE DEFENDANT: Yes, your honor.
THE COURT: All right.
And for the record, there is no recording or
broadcasting of this hearing; it is strictly prohibited
by the court's local rules.
We are also recording this hearing. We do not
have a court reporter. The recording will be available
to counsel upon request.
All right, I have before me a couple of motions.
I have Mr. Nance's motion to reopen the detention
hearing as well as his motion to seal that motion to
reopen, which I will grant at docket number 45.
I do find that there is good cause that it
contains information related to an alleged victim as
well as personal information related to the defendant.
And for the same reason I will grant the
defendant's motion to seal at docket number 51.
Case 2:20-cr-00174-JCC Document 169 Filed 06/06/22 Page 3 of 24
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I understand that there are two documents that Mr.
Nance, you seek to seal, only one of which is before
me; however, I do find that there is good cause to seal
both of those documents and I will grant docket number
51 -- to seal docket numbers 52 and 53.
I have reviewed all of the filings in relation to
the motion to reopen.
All right, I will hear from you first, Mr. Nance.
MR. NANCE: Thank you, your honor.
This of course is our defense motion to reopen the
detention issue and essentially the question is are
there new circumstances that are present now that were
not apparent at the bond revocation back some 7 1/2
weeks ago.
We think there are, and the second follow-up
question would be are there bond conditions that would
assure Dr. Shibley's appearance at future court
hearings and assure the safety of his ex-girlfriend and
the community, and again we think there are.
The new circumstances are -- we have outlined
these in some detail in both of our main pleading and
the reply that was filed late -- late yesterday.
Ms. -- and I will use her name unless I am
directed not to -- it is Ms. Batistelli (phonetic), the
ex-girlfriend is still in the community. She is -- and
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I know this because she called me a couple of days ago
from a treatment center. She appears to be doing okay.
She is actively engaged in dealing with her own issues,
and she is fully aware of the no contact order
regarding Dr. Shibley as to her, and she wants very
much to help him honor that, and pledged, at least to
me that she would, you know, go out of her way to
assure that that did not, she did not create a problem
there.
She pledged to find living accommodations apart
from his West Seattle home. She has had no contact
with -- appreciably since September 15th, since the
night of the incident that has him where he is now.
As to Dr. Shibley, he knows better than to attempt
any contact, and I would note he is also under the
scrutiny of yet another court system, the Anacortes
Municipal Court.
I know that because I have spoken to a probation
officer up there, an officer named Laurie Bergsma
(phonetic), who has an open file on him. There is no
court action pending, however, from there.
So we sense that the circumstances, as to Ms.
Batistelli and her safety are more assured now, since
we know more about her, and where she is, and what her
actual plans are, and I am happy to share location
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information off the record -- either on the record or
off the record with US Probation or with the
government.
The other couple of issues we have tried to
explain and emphasize here, this whole idea of his real
estate holdings is a -- this has been a major stressor
for Dr. Shibley.
He has worked very hard his entire life to make
something of himself. He came to this country as a
young man without great English skills. He has since
mastered the language, he has obtained a medical
degree, he built a medical practice, he was trying to
build a construction and investment business on the
side, and he has had just a number of recent setbacks,
everything from a contentious divorce to a bankruptcy;
recently his license, medical license was suspended;
obviously he is enduring the loss of his freedom, he is
in jail now, but the one thing he had left were his
holdings in real estate, these -- these three -- three
apartment buildings and his -- and his home. All of it
is likely to be lost to foreclosure before very much
longer.
As I have tried to explain in pleadings, he has
got -- he has put these buildings together, he has
renovated them, and he has filled them with a real
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tenant mix that needs a lot of on hands management,
management that cannot be easily delegated, and as a
result no rent is being paid, disrepair is -- these
things are falling into disrepair -- the creditors that
hold the mortgages are obviously unhappy, they are not
being paid, and it is just a matter of time before this
is all lost.
Dr. Shibley is confident that if he is out and can
manage these things, he will get -- he will cooperate
and he will -- he will get the rent. It is basically
rent money coming from the state of Washington. It is
just a matter of getting paperwork in order, and
contrary to the government's characterization that
this -- we have got to worry about fraud in the
community -- this would be a stabilizing thing for the
community. It is basically to save homeless people
from going back on the streets, as will ultimately
happen, making creditors whole and essentially making
the community safer.
The other, the final point, and it is kind of a --
it is an odd point but it is the issue of his health.
He has a long list of health concerns, and that is
already a matter that is before Judge Coughenour and
will be dealt with in time, but it is all made worse by
his incarceration, and if I had to -- if I had to put
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it in a nutshell and characterize it, I would -- being
incarcerated is driving him stir crazy. He is not
managing -- is not coping well at all inside.
He managed his own health on the outside, but he's
just not able to do it very well from the inside.
One of the items -- there's other aspects of this,
but he was actually taking antipsychotics on the
outside, and that was -- that was allowing him to cope,
to manage. He is not getting those inside, and it has
created problems.
And that brings us to the final -- we believe that
these things have all become more obvious with the
passage of time, the eight weeks he has been in
custody -- things that were not fully -- perhaps they
could have been anticipated, but they weren't fully
apparent at the time of the initial -- of the
revocation hearing, and that we believe constitutes a
material change in overall circumstances.
And then the issue would become are there bond
conditions that will assure his appearance and will
assure the safety of the community?
First with respect to assuring his appearance, he
is -- his whole identity is tied up now in the
local area -- these properties, his home. He is not
going anywhere. He surrendered his passport. He has
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nowhere really else to go.
He is going to be around. There is no history of
him not appearing when he is supposed to appear.
I would qualify that. I mean there were issues in
Anacortes, but there is -- it is not clear that he was
aware that he was supposed to come when he -- when he
didn't, but certainly with regard to this case he has
been -- he has been responsive.
And then as to the safety of the community, safety
of his ex-girlfriend, I believe we have addressed that.
She would not be in the area. There would be
certainly a change of locks on his house, at his house.
It sounds a lot like she is not -- she is motivated to
avoid problems there and I believe with enhanced --
there could be enhanced supervision.
Dr. Shibley is willing to submit to location
monitoring, if it is required. I don't know that it
is, but if it is he would agree with that.
So that is our -- that is essentially our
position, that conditions have changed sufficiently to
justify a reconsideration of the detention issue, and
there are conditions that would ensure his future
appearance and the general safety of the community, so
we would urge the court to reinstate those bond
conditions and permit the case to move forward from
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there.
THE COURT: Mr. Nance, before we finish with
your presentation, can you speak a little bit to the
allegation that Mr. Shibley wanted to purchase this
property -- he asked Officer McGlynn about purchasing
the property. She did not give him permission and so
he -- it appears that he surreptitiously purchased the
property through the alleged victim's name.
MR. NANCE: Well, I think it is a matter of
how it is characterized. He saw an investment
opportunity; as I understand it, he -- he negotiated a
price with the seller, he signed a purchase and sale
agreement -- before he proceeded any further, he tried
to clear it with Officer McGlynn. She did not grant
permission. And so he -- he did not proceed with his
own purchase.
He did instead go to Ms. Batistelli and encourage
her to do it. He thought it was a good investment
opportunity, that it should be -- this was a property
that should be -- should be pursued.
And he did see himself as her advisor. His
thought would be -- was to let her purchase it and he
would in turn renovate it. He saw it as a way to get
her engaged in real estate and maybe that would be a
way to motivate her into -- you know, get her into
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something productive because he didn't think she was --
he saw that she had these other issues. So that is --
that is what happened.
Whether that is characterized as being
surreptitious, or being on the sly or not, it was -- it
was a way that he thought that this could be pursued,
so this property was purchased not in his name and
purchased in her name. She put up the money, she had
an account, and the money -- it was purchased, the
earnest money was put down there, the loan was extended
in her name, she was on the hook to pay -- to pay the
mortgage and to -- and it is recorded in her name, and
any appreciation, any profits that came from that would
have accrued to her, so that was -- that was back when
they were -- he believed they had a future together and
this was -- this was a way to get her -- to get her
going -- so that is what happened.
One can characterize that any way that one
chooses, but that is what happened.
THE COURT: And is it your position then, and
I don't want to put you on the spot -- if you don't
know, you don't know -- but is it your position that
the monies used to purchase the home were Ms.
Batistelli's money and not Mr. Shibley's money?
MR. NANCE: I believe that it was her money.
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I believe it came from her -- she had her own account
at the credit union. I mean I can't really get into --
I don't know --
THE COURT: I understand.
MR. NANCE: -- the ultimate source of that,
but this was -- this came from her account; it was in
her name and whether it was earned, a loan, I mean I
don't know one way or the other.
THE COURT: Okay. Thank you, Mr. Nance.
Mr. Werner?
MR. WERNER: Thank you, your honor.
The government does not believe that defense has
established changed circumstances that have a material
bearing on release or detention in this case.
While things have changed for Mr. Shibley, and
things in the world have changed since 2000 and --
September of this year -- that whether it is the victim
engaging in treatment now, at least for some period of
time, or whether it is Mr. or Dr. Shibley's financial
problems, while these things might have changed, they
haven't changed such that they have a bearing on
whether or not there are conditions that can be imposed
such to assure the safety of the community and Dr.
Shibley's appearance in this court, and more
importantly there is no reason to believe now more than
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the court did in September that Dr. Shibley will follow
the conditions of the court.
Again we have another example from prior to the
hearing in September where Dr. Shibley went around
probation. Again, there is no other -- again, the
facts are, as laid out -- everyone agrees that Dr.
Shibley asked Officer McGlynn whether or not he could
purchase this 9103 property in Seattle.
Officer McGlynn told him no and then he had his
girlfriend purchase it.
Again the -- the idea that this purchase was
wholly and separately her purchase with her money and
her control isn't credible and it is undermined by the
evidence that we submitted to the court in the
detention brief, the email wherein Dr. Shibley writes,
"It will be foreclosed, this property will be
foreclosed if we don't sell it."
It is clear that again Dr. Shibley is pulling the
strings, is controlling what is happening with this
property.
Again there is -- to the government's knowledge,
Ms. Batistelli or the victim in this case did not have
a job, did not have the means to take out the loan for
this property or put up the $10,000.
The government doesn't know for sure at this point
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where the money came from. I can't tell the court I
know that for sure but again what we do know for sure
is that Dr. Shibley asked to buy this property, that
Ms. McGlynn told him no, the property was then
purchased in Dr. Shibley's girlfriend's name, and he is
emailing about trying to sell it while he is
incarcerated.
Again I think that email is interesting as well
because it shows whether -- and this whole property is
interesting because again when we look at whether or
not there is conditions that Dr. Shibley would follow
on the -- if he were to be released -- you have the
issue about contacting the victim in this case.
It is clear that there is a close tie between the
victim, Dr. Shibley and this property, and if he were
to be released, again there is reason to believe that
he would try to contact her, whether directly or
indirectly, as it relates to this property, which again
it seems that Dr. Shibley has an interest in.
The last issue again that has -- that has changed
since the time of the detention hearing -- but again, I
think it has changed to favor detention in this matter
are the health issues that Mr. Nance has raised in his
sealed pleadings and has also raised at this hearing.
And again I don't want to get into them
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specifically because they are in sealed filings, but I
think -- I think we can all agree that they are
serious, these are serious health issues that would be
very difficult for any probation officer to supervise
someone with these sorts of health issues if Dr.
Shibley were to be released into the community.
It appears that where this case may be headed is a
competency evaluation, where a doctor can look at Dr.
Shibley, evaluate both his physical and mental health,
and decide -- and decide what medications he might need
to be prescribed, or decide what he needs to -- where
his competency is at.
Again, I think that process is more easily
resolved if Mr. Shibley, if Dr. Shibley remains in
custody at the FDC.
Again, I don't think -- given all of the factors
in this case there are not conditions that Dr. Shibley
can be released under. I think to the extent
conditions have changed, I think they more lean towards
detention in this matter.
THE COURT: And help me understand the new
allegations with respect to the property. There's
obviously no petition filed because he has been
detained, but is it your position that it would still
be like a clear and convincing standard that I would
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have to find that those allegations are sufficient
based on a clear and convincing standard?
MR. WERNER: Yes, your honor, that would --
that would definitely be the standard, it would be
clear and convincing. It is not a violation of law, so
we would have to prove that by clear and convincing.
And again I think until Friday when Mr. Nance
filed the detention motion, the government wasn't aware
that detention was an issue again, so we -- there may
be more investigation that the government could do to
find out the funds, the source of the funds in this
matter, and the government is just not, doesn't have
that evidence at this particular hearing.
THE COURT: And do we know if the purchase
agreement -- well, I guess this is a better question
for Officer McGlynn, so thank you, Mr. Werner.
MR. WERNER: Thank you, your honor.
THE COURT: Officer McGlynn, do we know if
the purchase and sale agreement that Dr. Shibley
signed, do you know if that was before or after he
sought your approval?
(Brief Pause in Proceedings)
THE COURT: Is Officer McGlynn still there?
OFFICER MCGLYNN: I don't know. I haven't
seen the purchase and sale agreement.
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Can you hear me?
THE COURT: Yes, I can hear you. Yes.
OFFICER MCGLYNN: Can you hear me?
THE COURT: Yes.
OFFICER MCGLYNN: Okay, sorry.
So what I do know -- what I understand is that on
July 22nd, Mr. Shibley sent me an email requesting to
purchase two properties and to refinance three
properties. I denied that request.
And then the records show that on August 6th, Ms.
Batistelli purchased this home for $425,000, and my
understanding from comments made regarding Ms.
Batistelli is that she had no employment, no income --
she didn't know where her last meal was coming from and
she was dependent on Mr. Shibley.
In addition, when I talked to -- when I was doing
the computer monitoring on Mr. Shibley, Mr. Shibley
was monitoring her emails, and I questioned him about
emails to her regarding loans and the purchase of this
property, and Mr. Shibley, when I asked him, "Why are
you monitoring her emails?" -- he said, "Because she's
incapable of doing it due to her drug and alcohol
issues, so she asked him to monitor her emails."
I was concerned about that because there was this
conversation about a loan and purchasing a home, and
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Mr. Shibley was the one responding to these emails.
THE COURT: All right.
OFFICER MCGLYNN: I don't know if you want me
to -- I have a couple of other concerns regarding the
mental health.
THE COURT: Go ahead.
OFFICER MCGLYNN: Okay.
Mr. Shibley -- Mr. Shibley fills out documents in
the pretrial and there is nothing to indicate any
mental health issues either in the pretrial report or
the intake documents that Mr. Shibley fills out, so I
do have some concerns regarding him taking
antipsychotic medication. This is the first I am
hearing of that.
There are indications that he has some health
issues, but there was nothing significant in those
reports, so I do -- I am concerned about this
antipsychotic medication. I have never heard of that.
Mr. Shibley has indicated nothing regarding him
taking antipsychotic medications.
THE COURT: All right --
OFFICER MCGLYNN: And lastly with regard to
his Anacortes case, I did speak to -- I did speak to
the probation officer who at that time was Trevor Rose,
who indicated that Mr. Shibley did have a court date on
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October 6th. That court date I'm sure was canceled due
to the fact that I had notified Mr. Rose that Mr.
Shibley was incarcerated.
I have emailed Mr. Rose and left him a message and
have not heard back from him, but I do know that there
was a court date pending on October 6th. I don't know
the current status of the Anacortes case, but there
were issues I think that needed to be resolved.
THE COURT: All right. Thank you, Officer
McGlynn.
I do want to -- Mr. Nance -- on June 30, 2020,
with your assistance, Dr. Shibley was interviewed by
Pretrial Services and he states that, or the pretrial
services officer states that, "The defendant reported
no history of emotional or mental health problems. He
is currently in anger control counseling as a
requirement for his probation. The defendant stated he
has never experienced suicidal thoughts and is not
currently suicidal."
And now you are saying that he has severe mental
health issues and he has been on antipsychotic
medications?
MR. NANCE: Well, that's what I'm hearing. I
would surmise back in June, whatever he had was under
control. I suppose it might have been better if he was
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taking antipsychotics to acknowledge that. It is
probably something that he is not proud of, not willing
to or not eager to share.
That would be how I would perceive that.
If I could take just a moment to talk about this
property that the court is concerned about, the
property purchase, if the property were purchased in
early August, and the idea was to have Ms. Batistelli
be involved with it, and at the same time she is
melting down from relapses and there were multiple
relapses maybe beginning around that time, continuing
through September and apparently even to the present
day.
This was a property that was going to be lost,
foreclosed, and so I don't know that it is a negative
thing that Dr. Shibley is trying to arrange through the
broker to sell the property. I mean Ms. Batistelli is
not in any shape to do it herself. He is not able to
contact her directly.
I don't know that it is necessarily a bad thing
that that happened. It was probably in her interest
that it be sold because she couldn't manage it, she
couldn't get tenants, she couldn't do renovations, she
couldn't do any of those things.
As to the whole idea of Dr. Shibley needing a
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competency evaluation, it is probably accurate that one
is going to be arranged, one is going to be ordered.
We will be addressing that with Judge Coughenour in the
near future.
There is no requirement that a person be inside to
have a competency evaluation, if he could be -- he
could be out and still cooperate with that, and he
would.
He himself agrees that he needs -- he needs
something, he needs some kind of medication to deal
with his present circumstances, so --
THE COURT: All right. Thank you, Mr. Nance.
All right, as to defense motion to reopen the
detention hearing at docket number 46, I am going to
deny that motion.
I do not find that there is a change in
circumstances of the relevant information that went
into the court's determination that Mr. Shibley had --
that there was probable cause to believe that Mr.
Shibley had committed a new state or local crime while
on release, and that there were no conditions that
would assure the court that he would not continue to
pose a danger to either his relationships or the
community at large, and although not necessary to make
the finding, I also find that, or had found that he was
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unlikely to abide by the conditions or combination of
conditions of his bond, and I will say, although I am
not reopening the detention hearing, I did listen very
closely to what was said, and I have read everything
that has been filed in support of the -- in support and
in opposition of the motion to reopen the detention
hearing, and I am very concerned about what appears to
be a lack of candor by Dr. Shibley with respect to
whether or not the alleged victim was his girlfriend,
with respect to his very severe, as you are stating it,
Mr. Nance, mental health issues, yet telling Pretrial
Services back in June that he had no mental health
issues.
I am also very concerned, although I am not
finding by clear and convincing evidence that Mr.
Shibley violated the conditions of my bond, but I am
very concerned about the purchase of the 901 property,
his attempts to purchase it; then he is told he cannot
purchase it and the property is purchased in the
alleged victim's name and you know as Officer McGlynn
has proffered, the alleged victim has no employment, no
income, and she is completely dependent on Mr. Shibley,
and Mr. Shibley is monitoring her emails, and so while
it may not rise to the level of clear and convincing
evidence, there is certainly evidence there that Mr.
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Shibley attempted to go around Officer McGlynn's denial
of his request to purchase that property.
And then as I said in the previous hearing, I have
concerns about the fact that he was on supervision in
Anacortes for a domestic violation -- excuse me,
domestic violence -- and I made that mistake in the
first hearing and Mr. Nance, I don't know why you
needed to point that out in your motion to reopen, but
he was on supervision from the domestic violence
incident in Anacortes when these allegedly new
violations occurred.
So for all of those reasons, I do not find that
the circumstances have changed significantly or
sufficiently that the court should reopen the detention
hearing.
Dr. Shibley, the final say on your detention is
with Judge Coughenour, so you will have the
opportunity, and Mr. Nance can appeal my ruling to
Judge Coughenour, and you'll have the opportunity to
have this matter heard before Judge Coughenour, but I
will follow this up with a written order.
Is there anything further, Mr. Nance or Mr.
Werner?
MR. NANCE: Nothing further at this time from
the defense.
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MR. WERNER: Nothing further from the
government. Thank you, your honor.
THE COURT: All right, we will be in recess.
THE CLERK: The court is in recess.
(End of transcript)
CERTIFICATE
I certify that the foregoing is a correct transcript
from the electronic sound recording of the proceedings in
the above-entitled matter.
S/Brian J. Killgore/
June 6, 2022
AAERT Certified Electronic Court Reporter
License CERT*D-498
ACE Transcripts, Inc.
720 Queen Anne Ave N. #311
Seattle, WA 98109
(206) 966-5050
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