USA v. Fuhrer et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States v. Craig King
Case No. 3:19-cr-00026-TMB-DMS-5
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter is before the Court on Defendant Craig King’s Motion to Revoke Order of Detention
(the “Motion”).1 In his Motion, King requests that this Court “revoke the Magistrate’s Order of
Detention and direct the magistrate to determine conditions of release for [King] under the Bail
Reform 	Act.”2 	The 	United 	States 	opposes 	the 	Motion.3 	Oral 	argument 	was 	held 	on
November 4, 2019. At oral argument, King requested that the Court vacate the Magistrate Judge’s
prior detention order4 and direct the Magistrate Judge to hold a rehearing on the issue of bail. The
matter is now ripe for resolution.
In support of his Motion, King argues that the detention order inaccurately reflects King’s criminal
history and that the United States has failed to prove dangerousness.5 King also alleges that there
was an ex parte communication between the United States and the Magistrate Judge during a
detention hearing on May 13, 2019.6 King cites a case that suggests such ex parte communications
are improper.7 In Response, the United States argues that King’s motion is untimely, that King’s
allegations that the Magistrate Judge inaccurately interpreted King’s criminal history was
incorrect, that no improper ex parte communications occurred, and that on the proffered evidence,
King presents a flight risk and a danger to the public.8
As a threshold matter, the Court exercises its discretion to entertain the Motion despite its being
untimely.9 Turning to the allegations of ex parte communications, the Court has carefully reviewed
the audio recording of the May 13, 2019 hearing cited by King, as well as the audio recordings of
King’s two other bail review hearings. At no point in the audio recordings of those three hearings
was there a break in proceedings or ex parte communications between the United States and the
Magistrate Judge. After the November 4, 2019 oral argument, Defense Counsel also investigated
1 Dkt. 288 (Motion).
2 Id. at 10.
3 Dkt. 293 (Response in Opposition).
4 Dkt. 39 (Detention Order).
5 Dkt 288 at 3–7.
6 Id. at 7–9. See Dkt. 123 (Minute Entry for Bail Review Hearing).
7 Dkt. 288 at 9 (citing United States v. Abuhamra, 389 F.3d 309, 332 (2d Cir. 2004)).
8 Dkt. 293 at 5–11.
9 United States v. Gebro, 948 F.2d 1118, 1120 (9th Cir. 1991) (holding “that the district court had
the jurisdiction to reopen the bail issue on its own motion.”).
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the merit of their allegations.10 On Defense Counsel’s own review of audio recorded proceedings
before the Magistrate Judge, they found that no ex parte information was shared with the
Magistrate Judge during King’s previous bail hearings.11 Defense Counsel now withdraw their
unsupported representations to the Court and strike the allegations of ex parte communications
from King’s underlying Motion.12
In considering the merits of King’s claim that detention is inappropriate in his case, the Court
applies a de novo standard of review of the Magistrate Judge’s detention order under 18 U.S.C. §
3145(b).13 Title 18 U.S.C. § 3142(f) provides that the judicial officer must hold a hearing to
determine whether any condition or combination of conditions will reasonably assure the
appearance of a defendant and the safety of any other person and the community.14 To make its
finding, the Court considers the factors listed in § 3142(g), including: (1) “the nature and
circumstances of the offense charged,” (2) “the weight of the evidence against the person,” (3)
“the history and characteristic of the person,” and (4) “the nature and seriousness of the danger to
any person or the community that would be posed by the person’s release.”
Here, the Court finds by a preponderance of the evidence on the record that King poses a flight
risk. First, King is charged with most serious offenses: VICAR conspiracy, VICAR kidnapping,
VICAR assault, and VICAR murder.15 He faces a sentence of life in prison.16 Second, the evidence
weighs against King. The United States has proffered evidence it plans to bring against King
including witnesses who will testify he participated in the conspiracy against the victim and
corroborating cell phone data and records. Third, while King proffers family ties to the community
but King’s personal history shows that he is a risk of flight. He has failed to appear for court
proceedings multiple times, even in misdemeanor cases where the stakes were much lower than
those he currently faces.17 On other occasions, King has failed to obey court-imposed restrictions.
Considering these § 3142(g) factors—particularly, the first, second, and third factors—the Court
finds “no condition or combination of conditions will reasonably assure the appearance of” King
if he is released.
The Court has also reviewed the record for evidence to support detaining King as a danger to the
community under § 3142(f). “The facts the judicial officer uses to support a finding pursuant to
subsection (e) that no condition or combination of conditions will reasonably assure the safety of
any other person and the community shall be supported by clear and convincing evidence.”18 In
light of the circumstances, evidence of the crimes charged, and evidence of King’s affiliation with
the Hells Angels, King presents at least some danger to the community. However, based on the
record before the Court, the United States has not yet established the danger by a clear and
10 Dkt. 301 at 1–2 (Errata).
11 Id.
12 Id.
13 United States v. Koenig, 912 F.2d 1190, 1191‒92 (9th Cir. 1990).
14 18 U.S.C. § 3142(f)(1).
15 Dkt. 2 at 2–11.
16 18 U.S.C. §§ 1201 and 1959.
17 Dkt. 293 at 10–11.
18 18 U.S.C. § 3142(f)(2)(B).
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convincing standard and the United States did not proffer any additional evidence at oral argument.
Nonetheless, the Court finds that King poses a sufficient flight risk to justify detention.
Accordingly, King’s Motion at Docket 288 is DENIED. King has moved for bail review on three
previous occasions19 If he moves for another bail review, King should be prepared to present new
evidence or a change in his circumstances.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: November 14, 2019.
19 See Dkt. 203.
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