United States District Court, D. Oregon, Portland Division
JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
before the Court is a Motion to Reopen Detention Hearing
filed by Defendant Cyrus Sullivan on June 25, 2018. (Doc.
98.) The government filed a response on July 20, 2018. (Doc.
102.) An evidentiary hearing was held on July 25, 2018. (Doc.
103; see also Doc. 113 (transcript).) Having
considered the arguments of the parties and all matters of
record, the Court will deny the motion to reopen.
August 31, 2017, the District Court ordered Defendant
detained finding his release would present a danger to the
community. (Doc. 18; Doc. 21 at 12-14 (transcript).)
Defendant appealed that finding to the Ninth Circuit, which
affirmed the Order of detention. (Docs. 19, 40.) Defendant
now asks the Court to reopen the detention hearing due to
changed circumstances including (1) the clinical evaluation
and risk assessment conducted by forensic psychologist Dr.
Megan McNeal, a copy of which was provided to the Court, and
(2) newly obtained evidence suggesting Defendant did not
inflict bodily injury upon the deputized federal officers. At
the evidentiary hearing, Dr. McNeal explained her opinions
including that Defendant be treated with individual therapy
by a community therapist specializing in the treatment of
persons with autism spectrum disorders who could also refer
Defendant for related services. It was related that
Defendant's family is willing to pay for these services,
which are otherwise not available to Defendant.
asserts this information is new because there was not a full
understanding of Defendant's disability when detention
was considered by the District Court and considered to some
degree by the Ninth Circuit. Defendant acknowledges that his
disorder is exacerbated by binge drinking and substance
abuse, but asserts that those factors can be managed by
imposing related conditions of supervision. Defendant urges
the Court to release him to participate in the proposed
therapy and argues that his participation in the treatment,
in combination with appropriate conditions of release, will
reasonably assure his appearance and the safety of any other
person and the community. Suggested conditions include: a
period of home confinement with electronic monitoring, no
drug and alcohol, monitoring for compliance, and related
services for Defendant's mother. Finally, Defendant also
argues that there is no evidence that his violent acts caused
bodily injury to any officer and that the Government has
failed to provide evidence of bodily injury.
Government opposes the motion, arguing that there are no
changed circumstances and no new information.
U.S.C. § 3142(f) expressly provides that a detention
hearing may 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 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.” 18 U.S.C. §
3142(f); see United States v. Strong, 489 F.3d 1055,
1060 (9th Cir. 2007).
the treatment information relied upon by Defendant to reopen
may be more detailed, but it is not new. And, although it
appears undisputed that Defendant is in need of treatment,
the proposed treatment is not necessarily a reasonable
assurance that Defendant will choose to comply with
conditions of supervision which might otherwise ameliorate
danger he presents to the community. The Court recognizes
that Defendant suffers from a disorder that colors his
reaction to common stimuli, and that Defendant may find
agitating and over-stimulating, what others perceive as
ordinary or normal. It is recognized that Defendant's
substance abuse and alcohol abuse has likely exacerbated his
reactions. However, Defendant has not previously complied
with conditions set by the Court. His terms of supervisions
were revoked and Defendant explicitly told the prior judge
that he would not follow the judge's directives.
Moreover, Defendant has a history of threats and acts of
violence against others including service providers, citizens
in the community, and members of his family. In other words,
Defendant has demonstrated on numerous occasions that he is
either unwilling or unable to comply.
of evidence of bodily injury.
argues that the lack of evidence of bodily injury to the
corrections officers is a further reason to reconsider the
detention decision because it “bears directly on the
circumstances of the offense . . . .” in addition to
the issue of dangerousness to the community. (Doc. 98 at 2.)
The significance of Defendant's reference to the
circumstances of the offense is not entirely clear.
Court notes that the weight of evidence is one of the five
factors for the Court to consider in deciding whether to
grant pretrial release. 18 U.S.C. § 3142(g)(2);
United States v. Gebro, 948 F.2d 1118 (1991). To the
extent Defendant relies on lack of evidence of bodily injury
to address this factor, his position is unavailing. The
weight of the evidence is the least persuasive factor in the
detention analysis. United States v. Montamedi, 767
F.2d 1403, 1408 (9th Cir. 1985) (weight of the evidence is
the least important factor because § 3142 neither
requires nor permits pretrial determination of guilt).
Moreover, evidence of bodily injury is not required to
support a conviction under 18 U.S.C. § 111. See
United States v. Sommerstedt, 752 F.2d 1494, 1496-97
(9th Cir. 1985), as amended, 760 F.2d 999 (9th Cir.
1985) (because no particular level of force is required to
support a conviction, “a defendant may be convicted of
violating section 111 if he or she uses any force whatsoever
against a federal officer . . . .”).
fact that Defendant did not cause any corrections officer
bodily injury can be relevant to the consideration of whether
Defendant presents a danger to the safety of the community.
In this case, however, it does not change the result.
Regardless whether Defendant presented a danger to the
corrections officers or not, his record, which includes a
history of multiple threats and acts of violence toward
others, supports the conclusion that Defendant's release