USA v. Sierra et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DUSTIN SIERRA,
Defendant.
CR. 19-50110-02-JLV
ORDER
INTRODUCTION
Defendant Dustin Sierra was arrested on a federal complaint on July 30,
2019. (Dockets 1 & 3). He made his initial appearance on the complaint before
Magistrate Judge Daneta Wollmann on July 31. (Docket 10). The magistrate
judge temporarily detained defendant at that hearing. (Docket 13). On August
14, a grand jury indicted defendant on charges of kidnapping, aggravated sexual
abuse by force, interstate domestic violence, assault resulting in serious bodily
injury, and assault by strangulation of a dating partner. (Docket 31). The
counts of the indictment pertaining to defendant charged him with these
offenses both as a principal and as an aider and abettor. Id. at pp. 1-3. The
indictment separately charges co-defendant Jesse Sierra on these same offenses
solely as a principal. Id. at pp. 4-5.
Also on August 14, the magistrate judge held a detention hearing for
defendant pursuant to the Bail Reform Act, 18 U.S.C. § 3141 et seq. (Docket
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33). She found defendant posed a serious risk to the safety of another person or
the community and ordered him detained pending trial. (Docket 35 at p. 1).
Now before the court is defendant’s appeal of the magistrate judge’s detention
order, filed pursuant to 18 U.S.C. § 3145(b). (Docket 36). The government
opposes the appeal. (Docket 45). For the reasons given below, the court denies
the appeal.
I. Allegations
The factual recitation given here is based on the allegations in the affidavit
supporting the criminal complaint and the evidence presented before the
magistrate judge at defendant’s detention hearing. The court well understands
that new evidence may emerge as the case progresses. This factual recitation is
necessarily incomplete because of the early stage of the case. It does not bind
the magistrate judge or the court in any factfinding endeavors that may be
undertaken in response to future motions. As in all proceedings under the Bail
Reform Act, nothing in this order is intended to “modify[] or limit[] the
presumption of innocence.” 18 U.S.C. § 3142(j).
On July 14, Esther Wolfe was reported missing to the Rapid City Police
Department (“RCPD”). (Docket 1-1 at ¶ 3). The reporting party stated Ms.
Wolfe and co-defendant Jesse Sierra had dated and that he had assaulted Ms.
Wolfe during the relationship. Id. Defendant and Mr. Sierra are brothers.
(Docket 43 at p. 6). The reporter last observed Ms. Wolfe on July 13 at her
workplace, the Hilton Garden Inn. (Docket 1-1 at ¶ 3). The RCPD interviewed
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friends of Ms. Wolfe. Id. at ¶ 4. They stated Mr. Sierra was set to be released
from jail in Colorado and Ms. Wolfe was afraid of his return. Id.
On July 17, Oglala Sioux Tribe police went to the home of defendant’s
father, Michael Sierra, Sr. (Docket 42 at p. 8). They spoke with defendant
there. Id. Defendant stated he had not seen Mr. Sierra or Ms. Wolfe. Id.
Also on July 17, the RCPD received a call from Ms. Wolfe. (Docket 1-1 at ¶ 7).
She told police she was not in danger. Id. The call was placed from a number
registered to Louella Youngman, defendant’s mother. Id.; see also Docket 8 at
p. 1. Ms. Youngman told the RCPD Mr. Sierra and Ms. Wolfe had been at her
property and later went to Chadron, Nebraska. (Docket 1-1 at ¶ 8). On July
18, defendant’s brother, Michael Sierra, Jr., told the RCPD that defendant, Mr.
Sierra and Ms. Wolfe were all together but denied they had been at his house in
Chadron.1 Id. at ¶ 10.
On July 21, Ms. Wolfe appeared at the hospital in Chadron. Id. at ¶ 11.
She was severely bruised on her face and body—including on her neck and
collarbone area—and had a broken jaw and broken ribs. Id. On July 22,
RCPD and Bureau of Indian Affairs (“BIA”) officers interviewed Ms. Wolfe. Id. at
¶ 12. Ms. Wolfe stated she had previously been in a dating relationship with Mr.
Sierra and that he came to her workplace on July 13. Id. She agreed to go to
the Golden Corral restaurant with him. Id. at ¶ 13. Golden Corral surveillance
1The affidavit states Mr. Sierra, Jr., lives in Chadron, but defendant’s bail
report states he lives in Crawford, Nebraska. Compare Docket 1-1 at ¶ 10 with
Docket 8 at p. 1. The discrepancy is immaterial for purposes of this detention
appeal.
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footage shows defendant, Mr. Sierra and Ms. Wolfe in the restaurant on July 13.
(Docket 43 at p. 7). Defendant’s child was also with the group at the restaurant.
Id.
After leaving the restaurant, they went to the 24/7 Program building.2 Id.
Mr. Sierra, Ms. Wolfe and defendant’s vehicle were captured on surveillance
footage at that location. Id. Defendant then drove the group to his home in
Oglala, South Dakota, on the Pine Ridge Reservation. (Docket 1-1 at ¶¶ 14, 17).
Ms. Wolfe did not want to go to the reservation and attempted to flee. Id. at ¶ 14.
During the drive to Oglala, Mr. Sierra “repeatedly strangled [Ms.] Wolfe to
unconsciousness.” Id. at ¶ 15. Defendant refused to stop the vehicle or help
Ms. Wolfe. Id. at ¶¶ 14-16. Defendant’s child was present in the vehicle while
Mr. Sierra was strangling Ms. Wolfe. (Docket 43 at p. 7).
In Oglala, Mr. Sierra repeatedly sexually and physically assaulted Ms.
Wolfe.3 (Docket 1-1 at ¶¶ 17-22). Some of the alleged assaults were torturous.
Mr. Sierra tied Ms. Wolfe up inside a camper and confined her into a small space
by nailing boards around her. Id. at ¶ 20. He physically and sexually
assaulted her inside the camper. Id. Mr. Sierra also “dug a shallow grave and
forced [Ms. Wolfe] to get into the grave” while asking her if she was ready to die.
2The 24/7 Program is an alcohol and drug testing program that is often
imposed as a bond or parole condition. See Pennington Cty., S.D., Law
Enforcement Division – 24-7 Program, available at https://www.pennco.org/
?SEC=DAC8BEDC-B431-45AF-BA75-EC3F133379CA. (Last accessed on Sept.
19, 2019).
3During the detention hearing, the government indicated defendant and
his father, Mr. Sierra, Sr., live on the same land in Oglala. (Docket 43 at p. 8).
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Id. at ¶ 22. Ms. Wolfe did not allege defendant directly participated in any of
these assaults. Mr. Sierra took Ms. Wolfe to an abandoned house near Ms.
Youngman’s residence. Id. at ¶ 23. On July 17, defendant picked Ms. Wolfe
and Mr. Sierra up from Ms. Youngman’s residence and drove them to Mr. Sierra,
Jr.’s, residence in Nebraska. Id. at ¶¶ 7, 24. Mr. Sierra and Ms. Wolfe then
went to a motel in Crawford, where Mr. Sierra repeatedly sexually assaulted her.
Id. at ¶ 25. Mr. Sierra and Mr. Sierra, Jr., later took Ms. Wolfe to the Chadron
hospital. Id. at ¶ 26.
Defendant’s bail report indicates he was charged with domestic abuse in
2014, but the charge was dismissed. (Docket 8 at p. 4). In 2015, defendant
pled guilty to charges of unlawfully entering a building and simple assault. Id.
Defendant’s wife applied for a protection order against him in 2017. Id. It was
denied. Id. While defendant has been in pretrial detention, a court granted his
wife a protection order. Id.
III. Legal Standards
“If 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. The motion shall be determined
promptly.” 18 U.S.C. § 3145(b). A district court’s review of a detention order
entered by a magistrate judge “should proceed de novo.” United States v. Maull,
773 F.2d 1479, 1481 (8th Cir. 1985) (en banc).
To engage in a meaningful de novo review, the district court must
have available the options open to the magistrate. . . . Only after
determining that release upon personal recognizance or an
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unsecured appearance bond will not reasonably assure appearance
or will endanger the safety of others may the judicial officer then
proceed to consider [conditions of release].
Id. at 1482.
“A defendant may be detained before trial ‘[o]nly if the government shows
by clear and convincing evidence that no release condition or set of conditions
will reasonably assure the safety of the community and by a preponderance of
the evidence that no condition or set of conditions . . . will reasonably assure the
defendant’s appearance . . . .’ ” United States v. Abad, 350 F.3d 793, 797 (8th
Cir. 2003) (emphasis omitted) (quoting United States v. Kisling, 334 F.3d 734,
735 (8th Cir. 2003)).
In determining if release conditions exist that will reasonably assure
the appearance of a defendant at trial and the safety of the
community, the court considers the following: (1) the nature and
circumstances of the crime; (2) the weight of the evidence against the
defendant; (3) the history and characteristics of the defendant,
including mental condition, family ties, employment, community
ties, and past conduct; and (4) the seriousness of the danger to the
community or to an individual.
Id. (citing 18 U.S.C. § 3142(g)).
III. Analysis
Defendant first asserts the magistrate judge “erred in finding there was a
risk that [he] would not appear.” (Docket 36 at p. 3). The magistrate judge
made no such finding. In fact, she specifically found defendant was not a flight
risk. (Dockets 35 at p. 1 & 43 at p. 16). Upon de novo review, the court agrees
with the magistrate judge’s finding and concludes defendant is not a flight risk.
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Defendant also argues he “is not a danger to anyone[.]” (Docket 36 at
p. 3). He points to his “unremarkable criminal history,” his church attendance,
habit of volunteering, devotion to his parents, and the lack of evidence that he
personally assaulted Ms. Wolfe as “clear and convincing evidence” that he poses
no threat. Id. at pp. 1-3. In his reply brief, defendant argues “[t]here is no
evidence that [Ms. Wolfe] sustained the alleged injuries during the trip from
Rapid City” to defendant’s home in Oglala. (Docket 47 at p. 1). Defendant also
asserts he “had nothing to do with assaulting the victim” and that he poses no
danger to Ms. Wolfe. Id. at pp. 2, 4.
The government argues defendant poses a risk to Ms. Wolfe, his minor
child, and the community. (Docker 45 at pp. 13-15). It asserts Mr. Sierra
could not have assaulted Ms. Wolfe without defendant’s assistance. Id. at p. 7.
It also notes defendant’s criminal history includes both charges and convictions
for violent crimes. Id. at pp. 8-9. The government urges the court to conclude
there is no set of bond conditions that will mitigate the danger defendant poses to
his child and Ms. Wolfe. Id. at pp. 15-16.
After evaluating the Bail Reform Act factors, the court agrees with the
government that no set of conditions exist that will ensure the safety of at least
Ms. Wolfe if defendant is released.
A. Nature of the offenses
The court must consider “the nature and circumstances of the offense
charged, including whether the offense is a crime of violence[.]” 18 U.S.C.
§ 3142(g)(1). This factor weighs in favor of detention. As described above, the
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offenses in this case are extremely violent.4 See supra Section II. Defendant’s
argument he did not personally assault Ms. Wolfe is unavailing. Defendant is
charged with aiding and abetting Mr. Sierra in perpetrating the assaults.
(Docket 31). It is hornbook criminal law that an aider and abettor is punishable
as a principal. 18 U.S.C. § 2; United States v. Stands, 105 F.3d 1565, 1577 (8th
Cir. 1997) (“Liability for the actions of a principal requires only that the
defendant was associated with the unlawful venture, participated in it as
something the defendant wished to bring about, and sought by the defendant’s
own action to make it succeed.”) (internal quotation omitted).
The government produced sufficient evidence to show defendant
intentionally aided Mr. Sierra in assaulting Ms. Wolfe. Among other things,
defendant transported Mr. Sierra and Ms. Wolfe from Rapid City to Oglala and
concealed them on his property. He then took them to Nebraska—knowing Mr.
Sierra had already brutally assaulted Ms. Wolfe and, presumably, seeing Ms.
Wolfe’s injuries from the assaults in Oglala—thereby enabling further assault.
The extreme nature of the offenses and defendant’s role in them weigh strongly in
favor of detention.
B. Weight of evidence
The court must consider “the weight of the evidence against” defendant.
18 U.S.C. § 3142(g)(2). The evidence in this case does not solely consist of Ms.
4The offenses, with the possible exception of kidnapping, are also all
crimes of violence, as that term is defined in federal law, because each offense
“has as an element the use . . . of physical force against the person . . . of
another.” 18 U.S.C. § 16(a).
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Wolfe’s statements to law enforcement. Surveillance footage showed defendant,
Mr. Sierra and Ms. Wolfe at the Golden Corral and Mr. Sierra and Ms. Wolfe,
along with defendant’s vehicle, at the 24/7 Program. Ms. Youngman and Mr.
Sierra, Jr., both stated they had seen Mr. Sierra and Ms. Wolfe together. Mr.
Sierra, Jr., also stated he observed defendant with Mr. Sierra and Ms. Wolfe.
When Ms. Wolfe presented herself at the Chadron hospital, medical workers
observed injuries consistent with her statement to law enforcement. Finally,
law enforcement found physical evidence corroborating Ms. Wolfe’s statement at
defendant and his family’s properties. (Docket 1-1 at ¶ 30). This evidence
included the shallow grave and enclosure inside the camper Ms. Wolfe described.
Id.
At this preliminary stage of the case, there is strong corroboration of Ms.
Wolfe’s statement to law enforcement incriminating defendant. This factor
weighs in favor of continued detention.
C. History and characteristics of defendant
The court must consider defendant’s “history and characteristics,”
including his
character, physical and mental condition, family ties, employment,
financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or alcohol
abuse, criminal history, and record concerning appearance at court
proceedings; and whether, at the time of the current offense or
arrest, [he] was on probation, on parole, or on other release pending
trial, sentencing, appeal, or completion of sentence for an offense
under Federal, State, or local law[.]
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18 U.S.C. § 3142(g)(3)(A)-(B). This factor is more equivocal than the other three,
but the court concludes it also weighs in favor of detention.
Defendant’s criminal history concerned the magistrate judge, who
characterized it as “an escalating pattern of violence.” (Docket 43 at p. 17).
The court also finds defendant’s criminal history weighs in favor of detention. It
is true, as defendant points out, that his criminal history consists solely of
misdemeanors. (Docket 36 at p. 2). However, he pled guilty to a charge of
simple assault and has also been charged with domestic violence. (Docket 8 at
p. 4). The court does not know any details of these offenses and so does not
weigh defendant’s criminal history heavily against him. But it is clear this is not
defendant’s first violent offense.
Defendant’s family ties appear to be a driving factor behind this offense.
Mr. Sierra is defendant’s brother. Although neither party introduced evidence
describing their relationship, it appears defendant facilitated and attempted to
cover up his brother’s assault at his behest. As the government notes,
defendant’s parents and Mr. Sierra, Jr., also may well have known about Ms.
Wolfe’s captivity. (Docket 45 at pp. 11-12). Defendant’s family ties weigh in
favor of continued detention because they appear to be tied to the offenses.
Defendant asserts his good character, lack of drug and alcohol abuse, and
community-mindedness weigh in favor of release. (Docket 36 at pp. 2-3).
These characteristics weigh in favor of, but do not mandate, release. They are
heavily outweighed by the other factors the court must consider.
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D. Danger to any person or community
Finally, the court must consider “the nature and seriousness of the danger
to any person or the community that would be posed by [defendant’s] release.”
18 U.S.C. § 3142(g)(4). The magistrate judge concluded defendant’s release
would endanger Ms. Wolfe. (Docket 43 at p. 18). The government urges the
same and also contends defendant would endanger his minor child. (Docket 45
at pp. 13-15). It notes the child was present during the initial assault on Ms.
Wolfe, where Mr. Sierra repeatedly strangled her during the drive from Rapid City
to Oglala. Id. at pp. 14-15. Defendant denies Ms. Wolfe was assaulted during
the drive to Oglala and further denies that he poses any danger to Ms. Wolfe at
all.5 (Docket 47 at pp. 1, 4).
The court concludes defendant’s release would endanger Ms. Wolfe.
Defendant’s role in the alleged assaults was not minimal, despite his strenuous
arguments to the contrary. The possible complicity of his family members in
covering up this assault raises the prospect of retribution against Ms. Wolfe or
her friends and family if defendant is released. Given the crucial nature of Ms.
Wolfe’s testimony in this prosecution, the court is especially concerned by the
possibility that defendant could attempt to intimidate Ms. Wolfe into recanting or
absconding.
5The court cannot, of course, conclude with any certainty that Mr. Sierra
strangled Ms. Wolfe on the drive to Oglala. But for purposes of this detention
appeal, the court finds the allegation credible. Ms. Wolfe’s statement to law
enforcement is largely corroborated by independent and objective evidence. In
addition, Ms. Wolfe presented at the Chadron hospital with bruising and injuries
consistent with strangulation.
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The court cannot say at this point that defendant poses a serious risk to
his child. The government’s argument that exposing a minor to the type of
assault Mr. Sierra allegedly inflicted on Ms. Wolfe during the drive to Oglala is
traumatic and dangerous is well taken. However, the government does not
assert defendant exposed his child to any of the other assaults on Ms. Wolfe.
Nor is there any other evidence in the record indicating defendant would
otherwise endanger his child.
The danger defendant poses to Ms. Wolfe weighs in favor of continued
detention. Defendant proposes the court mitigate this danger by ordering him
not to contact Ms. Wolfe. (Docket 47 at p. 4). Given the extreme violence
defendant allegedly facilitated against Ms. Wolfe, contrary to any rational
person’s understanding of the law, the court has no confidence defendant would
obey a no-contact order.
IV. Conclusion
The court finds the government proved by clear and convincing evidence
that defendant, if released, would pose a danger to Ms. Wolfe. Each Bail Reform
Act factor weighs in favor of continued detention. The court finds there is no set
of conditions it could impose to mitigate this risk. On de novo review, the court
concludes the magistrate judge did not err in detaining defendant on the basis of
the danger he poses to Ms. Wolfe. The court affirms the magistrate judge’s
detention order and denies defendant’s appeal.
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ORDER
For the reasons given above, it is
ORDERED that defendant’s appeal of the magistrate judge’s detention
order (Docket 36) is denied.
IT IS FURTHER ORDERED that the magistrate judge’s detention order
(Docket 35) is affirmed.
Dated October 3, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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