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United States v. Gunn

United States District Court, D. Oregon

December 6, 2019

UNITED STATES OF AMERICA,
v.
BRYAN SCOTT GUNN, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

         Defendant Bryan Scott Gunn (“Gunn”) filed a motion for release from custody (ECF No. 10). For the reasons stated herein, the Court grants Gunn's motion for release.

         BACKGROUND

         Gunn was charged by complaint with committing wire fraud and money laundering offenses (ECF No. 1) (“Gunn II'), arrested at his residence in the Central District of California, and transported in custody to the District of Oregon. At his initial appearance in the District of Oregon on November 26, 2019, the United States moved to detain Gunn on the ground that he is a risk of danger to the community under 18 U.S.C. § 3142(f), and the Court detained Gunn pending a detention hearing on December 3, 2019.

         The next day, the Court also arraigned Gunn on allegations that he violated the conditions of his supervised release in United States v. Gunn, Case No. 3:14-cr-00495-MO (“GunnF). In Gunn I, Gunn was sentenced to a 20-month prison term and ordered to pay $939, 308 in restitution, after pleading guilty to wire fraud and money laundering in connection with a heavy equipment leasing scheme. As in the new case, the supervised release violations allege that Gunn continues to engage in the same fraud scheme while on supervised release, and that nine new victims have suffered financial losses greater than $300, 000.

         At his detention hearing on December 3, 2019, the Court detained Gunn in the supervised release matter (Gunn I) pursuant to Fed. R. Crim. P. 32.1(a)(6) and 18 U.S.C. § 3143(a)(1), on the ground that Gunn did not meet his burden of proving by clear and convincing evidence that he is “not likely to . . . pose a danger to the safety of any other person or the community if released[.]” 18 U.S.C. § 3143(a)(1). Specifically, the Court found that Gunn presents an unacceptable risk of danger to the community because he is allegedly continuing to defraud multiple victims while on federal supervision.

         Gunn filed the present motion for release from custody in Gunn II, noting that the Bail Reform Act, 18 U.S.C. § 3142(f)(1), does not authorize the Court to detain a defendant charged with wire fraud and money laundering offenses on the ground that the defendant is a danger to the community. The United States responded that it is also seeking a detention hearing under 18 U.S.C. § 3142(f)(2), because Gunn also presents a serious risk of flight and a serious risk of obstructing justice. At the conclusion of the hearing, the Court took Gunn's motion for release under advisement.

         DISCUSSION

         I. THE BAIL REFORM ACT

         Every circuit court, and the overwhelming majority of district courts, that have examined the issue presented herein, have held that the Bail Reform Act does not authorize pretrial detention on the ground that the defendant presents a risk of danger to the community, unless the defendant is charged with one of the offenses listed in 18 U.S.C. § 3142(f)(1)(A)-(E) (including crimes of violence, offenses for which the maximum sentence is life imprisonment or death, drug trafficking offenses, felonies involving a minor victim, and offenses involving the possession or use of a firearm) (the “enumerated offenses”). Consistent with this well-settled precedent, the Court finds that it is not authorized to detain Gunn pending trial on the ground that he is a risk of danger to the community.

         A. Circuit Court Precedent

         In United States v. Twine, 344 F.3d 987 (9th Cir. 2003), the district court detained the defendant, charged with being a felon in possession of a firearm, on the ground that he presented a risk of danger to the community under 18 U.S.C. § 3142(f), or because the charged offense qualified as a crime of violence. Although Congress has since amended the Bail Reform Act to include felon in possession as an enumerated offense, at the time it was not listed in 18 U.S.C. § 3142(f)(1)(A)-(E). As the charged offense was not an enumerated offense, the Ninth Circuit held: “We are not persuaded that the Bail Reform Act authorizes pretrial detention without bail based solely on a finding of dangerousness.” Twine, 344 F.3d at 987 (noting that the government's interpretation of the Bail Reform Act “would render meaningless § 18 U.S.C. 3142(f)(1) and (2)”). The Ninth Circuit also held that felon in possession is not a crime of violence, and therefore remanded the case to the district court to release the defendant. Twine, 344 F.3d at 988; see also United States v. Salerno, 481 U.S. 739, 755 (1987) (upholding the constitutionality of the Bail Reform Act in part on the ground that the Act authorizes pretrial detention only for the “carefully limited exception” of “arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel”).

         In Twine, the Ninth Circuit noted that its holding that the Bail Reform Act does not authorize pretrial detention based solely on a finding of dangerousness “is in accord with our sister circuits who have ruled on this issue.” Twine, 344 F.3d at 987 (citing United States v. Byrd, 969 F.2d 106 (5th Cir. 1992), United States v. Ploof, 851 F.2d 7 (1st Cir. 1988), and United States v. Himler, 797 F.2d 156 (3d Cir. 1986)); see also United States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999) (noting that “[d]etention until trial is relatively difficult to impose” and that “[f]irst, a judicial officer must find one of six circumstances triggering a detention hearing” and “[a]bsent one of these circumstances, detention is not an option”); United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (“[T]he Bail Reform Act does not permit detention on the basis of dangerousness in the absence of risk of flight, obstruction of justice or an indictment for the offenses enumerated above.”); United States v. Morgan, No. 14cr10043, 2014 WL 3375028, at *4 (C.D. Ill. July 9, 2014) (“[A]lthough the Seventh Circuit has never specifically addressed the issues considered by the courts in Himler, Friedman, Ploof, Byrd, Singleton, and Twine, this Court finds the reasoning and conclusions in those cases persuasive, as other district courts in the Seventh Circuit have found as well.”).

         B. District ...


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