USA v. Strickland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOHNNY-LEE PRESTON BURK,
Defendant.
Case No. 3:15-cr-00088-JMK-MMS
ORDER
Before the Court at Docket 372 is Defendant Johnny-Lee Burk’s pro se filing
entitled 	“Motion 	Requesting 	Court’s 	Review 	of 	Detention” 	(the 	“Motion”). 	The
Government did not respond to the Motion. 	In the Motion, Mr. Burk requests that this
Court review Magistrate Judge Scoble’s Detention Order and hold its own detention review
hearing.1 For the following reasons, Mr. Burk’s Motion is DENIED.
I. 	BACKGROUND
On March 28, 2017, the Court entered a Judgment after Mr. Burk pleaded
guilty to one count of Drug Conspiracy in violation of 21 U.S.C. §§ 864, 841(a)(1) and
(b)(1)(D).2 The Court sentenced Mr. Burk to 60 months’ imprisonment and three years of
1 Docket 372 at 1–2.
2 Docket 206 at 1.
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supervised release.3 	The Court’s Judgment included Mandatory, Standard, and Special
Conditions for his term of supervised release.4
On June 10, 2022, the Court held a Proposed Change of Plea and Bail Review
Hearing, in a separate criminal action—United States v. Burk, 3:19-cr-00117-JMK. At that
hearing, Mr. Burk entered into a plea agreement with the Government, agreeing to plead
guilty to Assault in violation of 18 U.S.C. § 111(a)(1), and the Court ordered Mr. Burk
released pending imposition of his sentence in that case.5 	Mr. Burk was released on
June 13, 2022, on pretrial release in that case6 and supervised release in this action. 	On
June 22, 2022, the United States Probation and Pretrial Services Office (“USPO”)
petitioned the Court for Action on Conditions of Pretrial Release, alleging that Mr. Burk
violated his pretrial release conditions by cutting off his location monitoring equipment.7
On June 24, 2022, USPO petitioned the Court for a Warrant for Person Under Supervised
Release, alleging that Mr. Burk had failed to report for a scheduled drug test pursuant to
Special Condition No. 1 of his supervised release in this action.8 	Arrest warrants were
issued for Mr. Burk in both cases, and Mr. Burk was arrested on July 28, 2022.9
On August 3, 2022, Magistrate Judge Scoble held an Initial Appearance/
Detention Hearing and ordered Mr. Burk’s temporary detention in both cases.10 	On
3 Docket 206 at 2.
4 Docket 206 at 3–5.
5 United States v. Burk, 3:19-cr-00117-JMK-MMS, Dockets 415, 419.
6 Id., Dockets 415, 417, 418.
7 Id., Docket 423.
8 Docket 339.
9 Dockets 343, 374; United States v. Burk, 3:19-cr-00117-JMK-MMS, Dockets 424, 468.
10 Docket 347; United States v. Burk, 3:19-cr-00117-JMK -MMS, Docket 441.
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August 5, 2022, Magistrate Judge Scoble conducted a Bail Review Hearing in both cases.11
Following that hearing, Magistrate Judge Scoble entered Orders of Detention Pending
Hearing or Trial in both cases.12 	Mr. Burk then filed two motions requesting detention
review in both cases.13 	On October 4, 2022, Magistrate Judge Scoble held another
Detention Hearing in both cases and denied Mr. Burk’s oral motion for release.14 Mr. Burk
thereafter filed the present motion, requesting that this Court review Magistrate Judge
Scoble’s Detention Orders in both cases.15 On October 24, 2022, the Court issued an Order
denying Mr. Burk’s Motion Requesting Courts Review of Detention in United States v.
Burk, 3:19-cr-00117-JMK.16 	Mr. Burk’s Imposition of Sentence in that case is set for
November 4, 2022.17
In 	this 	action, 	Magistrate 	Judge 	Scoble 	issued 	a 	Final 	Report 	and
Recommendation at Docket 367 recommending the revocation of Mr. Burk’s supervised
release. The Court will issue its decision on Docket 367 in a separate order.
II. 	LEGAL STANDARD
Rule 32.1 of the Federal Rules of Criminal Procedure governs the process
for revocation or modification of supervised release. 	Rule 32.1(a)(6) provides that a
“magistrate judge may release or detain the person under 18 U.S.C. § 3143(a)(1) pending
further proceedings.” 	Rule 32.1(a)(6) places the burden on the defendant moving for
11 Dockets 350, United States v. Burk, 3:19-cr-00117-JMK-MMS Docket 442.
12 Docket 443; United States v. Burk, 3:19-cr-00117-JMK-MMS, Docket 353.
13 Dockets 354, 365; United States v. Burk, 3:19-cr-00117-JMK-MMS, Dockets 448, 457.
14 Docket 369; United States v. Burk, 3:19-cr-00117-JMK-MMS, Docket 464.
15 Docket 372; United States v. Burk, 3:19-cr-00117-JMK-MMS, Docket 467.
16 United States v. Burk, 3:19-cr-00117-JMK-MMS, Docket 469.
17 Id., Docket 461.
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release to prove by “clear and convincing evidence” that they “will not flee or pose a danger
to any other person to the community[.]”18
A defendant may seek review of the detention order by the district court
pursuant to 18 U.S.C. § 3145(b).19 	Section 3145(b) provides, “[i]f a person is ordered
detained by a magistrate judge . . . the person may file, with the court having original
jurisdiction over the offense, a motion for revocation or amendment of the order.” Under
§ 3145(b), a district court reviews a magistrate judge’s detention determination de novo.20
However, “the district court is not required to start over in every case, and proceed as if the
magistrate’s decision and findings did not exist.”21 	In conducting its review, there is no
requirement that the district court hold a hearing.22
Under § 3145(c), a defendant who is detained pursuant to § 3143(a)(2) or
(b)(2) could obtain release if the judicial officer finds by clear and convincing evidence
that the person is not likely to flee or pose a danger to the safety of any other person or the
community if released and if it is clearly shown that there are “exceptional reasons” why
detention would not be appropriate.23 	The Ninth Circuit has found that the district court
has authority to determine whether there are “exceptional reasons” warranting release
under § 3145(c).24
18 See also United States v. Loya, 23 F.2d 1529, 1530 (9th Cir. 1994).
19 Although Mr. Burk did not explicitly invoke 18 U.S.C. § 3145(b), the Court construes
his Motion as requesting district court review of Magistrate Judge Scoble’s Detention Order.
20 United States v. Koenig, 912 F.2d 1190, 1991–92 (9th Cir. 1990).
21 Id. at 1193.
22 See id. at 1193; see also United States v. Oaks, 793 F. App’x 744, 747 (10th Cir. 2019).
23 18 U.S.C. § 3145(c); 18 U.S.C. § 3143(a)(1), (b)(1).
24 United States v. Garcia, 340 F.3d 1013, 1014 n.1 (9th Cir. 2003).
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III. 	DISCUSSION
On October 25, 2022, this action was transferred from The Honorable Sharon
L. Gleason to this Court.25 	As the Court has already issued a separate order addressing
Mr. Burk’s concerns in United States v. Burk, 3:19-cr-00117-JMK, this Order shall pertain
only to the Motion Requesting Courts Review of Detention lodged at Docket 372 in the
above-captioned action.
This Court has independently reviewed the record, including: (1) Mr. Burk’s
Motion at Docket 365; (2) USPO’s June 24, 2022, Petition for Warrant of Arrest for Person
Under Supervision on Supervised Release; (3) the August 3, 2022, Initial Appearance on
Petition for Warrant of Arrest for Person Under Supervision on Supervised Release/
Detention Hearing before Magistrate Judge Scoble; (4) the Order of Temporary Detention
at Docket 348; (5) the August 5, 2022, Bail Review Hearing before Magistrate Judge
Scoble; (6) the August 5, 2022 Order of Detention Pending Hearing or Trial at Docket 353;
(7) the September 2, 	2022, 	Evidentiary Hearing, 	which also addressed Mr. 	Burk’s
detention; (8) Mr. Burk’s supplemental briefing titled “Letter Written By the Defendant”
at Docket 364, which addressed his legal arguments opposing the alleged violation of
supervised release and requested release; (9) the October 4, 2022, Bail Review Hearing
before Magistrate Judge Scoble; and (10) Defendant’s Notice of Release Plan for Hearing
at Docket 376. The Court concludes that a hearing before the district court is unnecessary
to a determination regarding the appropriateness of continuing detention.
25 Docket 375 (all further captions and citations this case shall reflect the new case number
3:15-cr-00088-JMK-MMS).
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In this case, Mr. Burk began supervised release on June 13, 2022, subject to
Mandatory, Standard, and Special Conditions of Supervision.26 	Nine days later, on
June 22, 2022, Mr. Burk allegedly violated a Special Condition of Supervision that
required him to “submit up to 12 urinalysis tests per month” by not appearing for a
scheduled urinalysis test appointment.27 From the Court’s review, it is clear that Mr. Burk
strongly argues against the legality of the alleged supervised release violation as he reads
the language of the Special Condition No. 1, and further, raises questions about his Fourth
Amendment rights. However, that fact-finding and legal analysis is not the question before
the Court, and will be addressed in a separate order upon a complete review of the Final
Report and Recommendation Re: Petition to Revoke Supervised Release. Rather, for the
purposes of this Order, the Court must address whether Mr. Burk met his burden “of
establishing by clear and convincing evidence that the person will not flee or pose a danger
to any other person or to the community[.]”28
Mr. Burk has not presented sufficient evidence or argument that satisfies his
burden of establishing that he will not flee or pose a danger to another person or the
community. 	At the September 2, 2022, hearing, Mr. Burk requested that detention be
addressed, but admitted he was not properly prepared to present a complete proposal to
Magistrate Judge Scoble. 	Magistrate Judge Scoble permitted Mr. Burk to submit
supplemental briefing on both his legal arguments and detention proposal. 	However,
26 Docket 339 at 1.
27 Id. at 1–2.
28 Fed. R. Civ. P. 32.1(a)(6).
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Mr. Burk’s briefing at Docket 364 focuses almost exclusively on his legal argument related
to Special Condition No. 1. Mr. Burk addresses his detention only briefly, stating:
First and foremost, I wish to be honest with this Court and
admit, as man with integrity, that on a personal level, I can
completely understand that I am now facing a violation here,
regardless of the legal dynamics and controlling law, due to my
performance being less than was generally accepted by the
Court, since typically a person is usually supposed to submit to
drug testing upon the P.O.’s request, along with the fact that I
allegedly cut off my E.M. in violation of my release conditions.
All in all I can admit to the Court that my behavior as a whole
was unacceptable while on release.
The Court appreciates Mr. Burk’s candor and reflection on his behavior. 	However,
Mr. Burk did not provide a proposal or any other evidence for the Court to consider to
show that he will not flee or pose a danger to other people or the community.
At the October 4, 2022 hearing, Mr. Burk presented a detailed release plan
to Magistrate Judge Scoble, requesting to be released to live with his uncle with an ankle
monitor, an 8:00 p.m. curfew, a one week deadline to conduct an initial drug and alcohol
assessment, and a commitment to engage in any recommended treatment. This release plan
is substantially similar to Mr. Burk’s prior set of supervised release conditions. 	In fact,
this plan requests additional leniency, because home confinement was purportedly too
restrictive for Mr. Burk, making it difficult for him to schedule his time and comply with
the Court’s conditions. Mr. Burk has made no showing that additional leniency would lead
to greater compliance with the Court’s orders. Upon this Court’s review of the record and
given Mr. Burk’s history of noncompliance with this Court’s orders, his criminal history,
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and his history of substance abuse, the Court finds that detention during this revocation
proceeding is appropriate.29
18 U.S.C. § 3145(c) requires a defendant to show “exceptional reasons” for
his release pending appeal. 	“Exceptional reasons” means “any truly unusual factors or
combination of factors” that would render it unreasonable to incarcerate the defendant.30
“Hardships that commonly result from imprisonment” or release with conditions do not
meet the high threshold for “exceptional reasons.”31 Further in the context of a revocation
proceeding, 	the 	Ninth 	Circuit 	has 	held 	that 	“exceptional 	circumstances” 	such 	as:
“(1) raising substantial claims upon which the appellant has a high probability of success;
(2) a serious deterioration of health while incarcerated; and (3) any unusual delay in the
processing of the appeal” must be demonstrated.32 	Mr. Burk did not identify any such
exceptional reasons or circumstances in hearings before Magistrate Judge Scoble or in the
present Motion.33
IV. 	CONCLUSION
Having reviewed Magistrate Judge Scoble’s Detention Order at Docket 353
and his ruling on October 4, 2022, de novo, this Court cannot find by clear and convincing
29 On October 28, 2022, Mr. Burk submitted Defendant’s Notice of Release Plan for
Hearing at Docket 376. The Court has reviewed Mr. Burk’s Notice, which provides the Court with
an outline of his preferred release conditions and plans, in anticipation of his sentencing on
November 4, 2022. The Court finds that the information contained in the Notice does not alter the
Court’s detention review analysis, but will consider Defendant’s Notice of Release Plan in
preparation for the sentencing hearing on November 4, 2022.
30 United States v. Garcia, 340 F.3d 1013, 1019 (9th Cir. 2003).
31 See Garcia, 340 F.3d at 1022.
32 United States v. Bell, 820 F.2d 980, 981 (9th Cir. 1987).
33 See Docket 372.
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that Mr. Burk is not likely to flee or pose a danger to the community. The Court also finds
that there are no release conditions that could reasonably assure the appearance of Mr. Burk
or the safety of the community. 	Accordingly, IT IS ORDERED that the Motion at
Docket 372 is DENIED, and Magistrate Judge Scoble’s detention order at Docket 353
remains in full force and effect.
IT IS SO ORDERED this 1st day of November, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
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