USA v. Williams et al

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 12-mj-01-01-LM
Shyloe Piper Johnson
ORDER OF DETENTION PENDING TRIAL
In accordance with 18 U.S.C. § 3142(f), a hearing was conducted
on January 5, 2012, to determine whether to detain the defendant,
Shyloe Piper Johnson, who has been charged by complaint with aiding
and abetting bank robbery, in violation of 18 U.S.C. § 2113(a) and
2(a).1 The court issued its detention order orally from the bench,
and this written order summarizes those findings and rulings. See
18 U.S.C. § 3142(i)(1).
Legal Standards
Section 3142(f) of the Bail Reform Act, 18 U.S.C. §§ 3141-3156,
“does not authorize a detention hearing whenever the government
thinks detention would be desirable, but rather limits such hearings”
to the circumstances listed in 18 U.S.C. § 3142(f)(1) and (f)(2).
1 Defendant conceded the existence of probable cause for the
charge and waived her right to a preliminary hearing under Rules 5.1(a)
and (e).
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United States v. Ploof, 851 F.2d 7, 10 (1st Cir. 1988). In this case,
the government argued that a detention hearing was warranted under
18 U.S.C. § 3142(f)(1)(A), as the alleged crime, aiding and abetting
bank robbery, is a “crime of violence.” Defendant argued that, while
bank robbery qualifies as a “crime of violence” under § 3142(f)(1)(A),
aiding and abetting that crime does not so qualify.
Under the Bail Reform Act, the term “crime of violence” is
defined, in relevant part, as
(A) an offense that has [as] an element of the offense
the use, attempted use, or threatened use of physical force
against the person or property of another; [or]
(B) any other offense that is a felony and that, by
its nature, involves a substantial risk that physical force
against the person or property of another may be used in
the course of committing the offense.
18 U.S.C. § 3156(a)(4)(A)-(B)
Defendant conceded that the crime of bank robbery, 18 U.S.C.
§ 2113(a), qualifies as a crime of violence under the above definition.
Defendant did not concede, however, that under the Bail Reform Act,
aiding and abetting a “crime of violence” was itself a “crime of
violence.”
In United States v. Mitchell, the First Circuit answered this
question in the government’s favor. See 23 F.3d 1, 3 (1st Cir.
1994). Concluding that conspiracy to commit arson was a crime of
violence under the Bail Reform Act, the court reasoned:
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One who aids and abets an offense is punishable as a
principal; 18 U.S.C. § 2, and the acts of the principal
become those of the aider and abetter as a matter of law.
. . . Accordingly, as other courts have held in analogous
circumstances, aiding and abetting the commission of a
crime of violence is a crime of violence.
Mitchell, 23 F.3d at 3 (internal citations and emphasis removed).
Applying Mitchell here, the court finds that the crime charged, aiding
and abetting bank robbery, is a crime of violence under 3156(a)(4),
and, as such, the detention hearing was appropriately requested.
Pursuant to § 3142(f), the court must next determine whether
any condition or combination of conditions set forth in § 3142(c)
will reasonably assure the appearance of the defendant (“risk of
flight”) and the safety of any other person and the safety of the
community (“dangerousness”). 18 U.S.C. § 3142(f); United States v.
Patriarca, 948 F.2d 789, 791 (1st Cir. 1991). In making this
determination, the court must consider the following: (1) the nature
and circumstances of the offense charged; (2) the weight of the
evidence as to guilt; (3) the history and characteristics of the
accused, including family ties, past history, financial resources
and employment; and (4) the nature and seriousness of the danger to
any person or the community that would be posed by a release. 18 U.S.C.
§ 3142(g).
During the course of a hearing conducted pursuant to 18 U.S.C.
§ 3142, the government has the burden of persuading the court that
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no condition or combination of conditions will reasonably assure (1)
the defendant’s presence at trial, United States v. Perez-Franco,
839 F.2d 867, 870 (1st Cir. 1988); or (2) the safety of another or
the community, Patriarca, 948 F.2d at 793. For its part, the
government is required to prove risk of flight by a preponderance
of the evidence and to establish dangerousness by clear and convincing
evidence. See id. at 792-93.
Findings and Rulings
In the instant case, the government argued that defendant’s
release posed both a serious risk of flight and danger. After
weighing the evidence and balancing the factors laid out in 18
U.S.C. § 3142(g), the court found that the government met its burden
under the dangerousness prong.
The court’s finding of dangerousness was not controlled by one
factor alone. Rather, it was the combination of risk factors that
persuaded the court that defendant’s release, even on strict
conditions, presents too great a danger to the community. Those
factors are listed below:
 Nature of the crime. Defendant allegedly assisted her
co-defendants in a violent bank robbery, which involved
the apparent use of a gun, threats of physical harm and
assaults on a bank teller and other customer-bystanders
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at the bank. The crime was violent, dangerous, and as
described in the sealed affidavit, likely terrifying for
those present at the bank while the crime was being
committed.
 Weight of the evidence. The evidence against this
defendant is extremely strong and includes tape-recorded
statements of defendant describing the bank robbery.
Those recordings include statements by defendant during
which she appears to be bragging and, at one point, laughing
about the bank robbery.
 History and characteristics of defendant. Defendant is
young (25 years old) and immature. She has a history of
exercising poor judgment with respect to important life
decisions. She married a convicted felon at age 20, was
a victim of domestic violence, and divorced him in August
2011. In October 2011, defendant met her co-defendant, Mr.
Williams, the lead actor in the bank robbery (who is a
convicted felon with a lengthy record, including bank
robberies, for which he has served time in a federal prison
in California). In November 2011, defendant went to
California with Mr. Williams and remained there for
approximately three weeks. In her recorded statements,
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defendant describes Mr. Williams as “my man.” At the time
of her arrest, defendant was residing with Mr. Williams
in a hotel in Laconia.
 Unaddressed substance abuse issues. Defendant has an
unaddressed substance abuse problem and admits to consuming
illegal drugs including crack cocaine. From 2005 through
2010, defendant was ingesting 80 mg. Oxycontin pills on
a daily basis.
 Did not follow through on treatment. Several years ago,
defendant obtained a drug abuse evaluation through
Horizons Counseling Center in Gilford. Although offered
treatment, defendant declined to follow through with it.
 Criminal record. Defendant has a criminal record, which
includes two misdemeanors (shoplifting and criminal
liability for conduct of another) and two driving offenses.
Although her criminal record by itself may not support a
dangerousness finding, it is a risk factor indicating a
lack of respect for the law.
 Close family ties but not strong influence. Defendant has
strong ties to her family in New Hampshire. However, those
strong ties have not prevented the defendant from making
poor life decisions. Prior to living in a hotel with Mr.
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Williams, defendant was residing with her father, with whom
she has a close relationship. Unfortunately for
defendant, her father cannot offer her a stable residence
because he has recently been sentenced to serve time on
state charges (habitual offender).
 Employment history. Defendant has been unemployed since
April 2011. Her most recent employment history involves
short-term jobs, although she appears to have worked
steadily for the same employers from 2007-2009.
 Combined risk factors. The nature of the charged crime is
extremely violent, the weight of the evidence is strong,
and the tape-recorded statements of this defendant give
some indication that defendant delighted in her involvement
in the crime. These factors combined with her history and
characteristics, as summarized above, provide clear and
convincing evidence that defendant is too high a risk of
danger to the community -- even if released under strict
conditions.
In sum, the court found that the government met its burden of
proving that defendant’s release, even on strict conditions, presents
too serious a risk of danger to the community. There are no conditions
or combination of conditions that will reasonably assure the safety
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of the community. Accordingly, it is ORDERED that the defendant be
detained pending trial.
The defendant is committed to the custody of the Attorney General
or his designated representative for confinement in a corrections
facility, to be held separately, to the extent practicable, from
persons awaiting or serving sentences or being held in custody pending
appeal. The defendant shall be afforded a reasonable opportunity for
private consultation with defense counsel. On order of a court of
the United States or on request of an attorney for the government,
the person in charge of the corrections facility shall deliver the
defendant to the United States Marshal for the purpose of appearing
in connection with court proceedings.
SO ORDERED.
_____________________________
Landya B. McCafferty
United States Magistrate Judge
January 6, 2011
cc: Behzad Mirhashem, Esq.
Helen W. Fitzgibbon, Esq.
U.S. Marshal
U.S. Probation
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