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United States v. Tolbert

United States District Court, E.D. Tennessee

December 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN R. TOLBERT, JR., Defendant.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         These criminal actions are before the Court on the government's Emergency Motion Under 18 U.S.C. § 3145(a) for Revocation of Magistrate Judge's Release Order [No. 3:09-cr-56, Doc. 75; No. 3:10-cr-30, Doc. 41].[1] The government requests that the Court revoke the decision of United States Magistrate Judge C. Clifford Shirley, Jr. [Doc. 77], to release the defendant pending a hearing on the potential revocation of his supervised release, currently scheduled for December 14, 2017 [Doc. 70]. The defendant filed a response in opposition to the government's motion [Doc. 78]. On November 21, 2017, this Court heard oral argument on the merits of the government's motion. After considering the arguments advanced by both parties, the Court issued an oral ruling revoking Magistrate Judge Shirley's release order and ordering the defendant detained pending his revocation hearing. The Court now enters this memorandum opinion to further elaborate on its ruling.

         I. Background

         On May 27, 2010, Judge Thomas W. Phillips sentenced the defendant to a term of fifty-four months' imprisonment and three years' supervised release for possession of an unregistered short-barreled shotgun [Doc. 52]. Then, on November 15, 2010, Judge Curtis L. Collier sentenced the defendant to a term of thirty-seven months' imprisonment and three years' supervised release for assaulting a Deputy United States Marshal (“DUSM”) [No. 3:10-cr-30, Doc. 27]. This sentence ran consecutive to the sentence for the firearm-possession offense [Id. at 2]. The assault offense arose out of an incident in which the defendant struck a DUSM in the head with a water pitcher after the jury found him guilty of the firearm-possession offense and several DUSMs attempted to take him into custody [No. 3:10-cr-30, Doc. 12]. As he was being escorted out of the courtroom following this incident, the defendant shouted threats of violence to Judge Phillips, Assistant United States Attorney Cynthia Davidson, and others [Id.].

         The defendant was released from federal prison on July 26, 2017 [Doc. 75 p. 1]. Then, on August 25, 2017, the probation officer filed sealed petitions for a warrant for the defendant's arrest in both cases, on the ground that he had violated his conditions of supervised release by committing another federal, state, or local crime [Doc. 68]. Specifically, the probation officer asserted that on August 16, 2017, the defendant had been charged with two felonies in Knox County-aggravated assault and possession of a weapon by a convicted felon [Id. at 2]. The conduct underlying these offenses allegedly occurred exactly three weeks after the defendant's release from prison. Magistrate Judge H. Bruce Guyton signed both petitions, and warrants for the defendant's arrest promptly issued. On August 28, both cases were reassigned to this Court from Judges Phillips and Collier [No. 3:09-cr-56, Doc. 67; No. 3:10-cr-30, Doc. 33]. Then, on August 30, the probation officer amended the sealed petitions to include the following information:

The defendant was arrested by Knoxville Police on August 24, 2017, charged with the following: Warrant @1208280, Aggravated Assault (Domestic) and Warrant @1208281, Possession of a Weapon by a Convicted Felon.
According to the Affidavits of Complaint: “This Incident occurred on or about Wednesday, August 16, 2017, at 21:30 at Winterset Dr. [O]n 08/16/2017 at 21:30 hours, Officer H. Snoderly (2165) responded to an Aggravated Assault at 4505 Winterset Rd. Officers met with the victim, Telisa Tyler, in the parking lot of Pine Ridge Apts. Telisa stated a few minutes earlier the defendant, John Tolbert Jr, drove by her house and pointed a gun at her. The defendant is the nephew of Telisa's husband, Joseph Tyler. Telisa stated the defendant has recently been dating a friend of Telisa's daughter and this friend brought the defendant to Telisa's house. Telisa stated the family knows the defendant's past and did not want him around their house. Telisa stated the defendant then began calling multiple family members threatening them. On this date and time Telisa stated she saw the defendant outside her house in a dark red Dodge Charger. Telisa stated defendant saw her standing in the doorway and pointed a black handgun at her through the window. The defendant then drove away. A few minutes later Telisa's step-daughter, Jonasia Tyler, received a call from the defendant. Defendant then told Jonasia[, ] “Your daddy is gonna die tonight.” Defendant has also made threats via Facebook [M]essenger saying he was going to give the family's addresses to his 60's (gang members) if they called the police.”

[Doc. 69 p. 2]. The probation officer also noted that the defendant has been diagnosed with bipolar disorder, has a history of violent behavior, and has multiple past convictions for assault, robbery, disorderly conduct, resisting arrest, and unlawful possession of firearms [Id. at 3]. Thus, based on this history and the assaultive nature of his new offense conduct, the probation officer recommended that the defendant be detained pending his revocation hearing because he poses a danger to the community [Id.].

         On November 15, the defendant made an initial appearance before Magistrate Judge Shirley and requested a detention hearing [Doc. 70]. That hearing was held the next day, November 16 [Doc. 76].[2] The defendant's counsel proffered that the two Knox County felony charges-aggravated assault and firearm possession-had been dismissed on the merits at a preliminary hearing, on the ground that the State of Tennessee's witnesses were unable to testify definitively whether the defendant had wielded a firearm. But since that time, the defendant had entered a guilty plea to Tennessee simple assault, a misdemeanor. The factual basis for that conviction, according to the defendant's counsel, is that the defendant was overheard making threats in the background of a telephone call to which he was not an active participant. Counsel also proffered that the defendant had received an offer of employment-which counsel's investigator was able to verify by telephone during the detention hearing-and that defendant could live with either his girlfriend or brother until the revocation hearing. The government responded that the defendant poses a great risk to the safety of others and the community, given his lengthy history of violence and threats, the assaultive nature of his most recent offense, his diagnosed mental illness, and the short time period between his release and subsequent violation. The government conceded, however, that the defendant did not pose a flight risk.

         After considering both parties' arguments, Judge Shirley elected to release the defendant subject to certain conditions [Doc. 77]. In addition to the standard conditions of pretrial release, Judge Shirley ordered that the defendant: (1) obtain and maintain stable employment; (2) remain within the Eastern District of Tennessee; (3) remain in home detention at his girlfriend's residence, with certain exceptions (e.g., going to work and attorney visits); (4) avoid all direct or indirect contact with the victims of the assault conviction; and (5) abstain from any social media use [Id. at 2]. Judge Shirley stated that, while the burden of proving suitability for release rests with the defendant under these circumstances, see infra Part II, he found by clear and convincing evidence that the defendant did not pose a risk to the safety of the community with the above conditions in place. The next day, the defendant informed the probation officer that living at his former girlfriend's home, as Judge Shirley had ordered, was not feasible because they were no longer a couple [Doc. 78-1]. Judge Shirley then gave his verbal permission for the defendant to relocate to his sister's residence [Id.] The probation officer has also verified the defendant's employment at Ebony Lounge [Id.].

         On November 17, the government filed an emergency motion asking this Court to revoke Judge Shirley's order releasing the defendant [Doc. 75]. The Court heard oral argument from the parties on the merits of the government's motion on November 21, 2017 [Doc. 79]. The government argued that the defendant had failed to carry his burden of proving by clear and convincing evidence that he does not pose a danger to the community. The government submitted that only three weeks passed between the defendant's release from federal prison and his commission of another crime. The government noted that, while the defendant's felony charges may have been dismissed for lack of probable cause, the defendant actually entered a guilty plea to misdemeanor assault. And to corroborate the assaultive nature of the August 16 incident, the government entered into evidence a Facebook message the defendant allegedly sent that day before his arrest [Doc. 81]. This message appears to have threatened the victim family that, if they reported the conduct underlying the defendant's assault conviction to the police, he would provide their address to “every 60 in the city” [Id.]. The government proffered that “60” refers to the Rollin 60s Crips, a street gang to which the defendant allegedly belongs.

         The government further argued that Judge Shirley did not adequately consider the extent of the defendant's history of violence. The government pointed to the defendant's conviction for using a sawed-off shotgun to commit robbery, his assault of a Deputy United States Marshal, his threats to other court personnel, his history of mental health issues, and his lengthy history of violent threats, including taking a butcher knife to school to threaten his teacher at age nine and threatening to kill his mother with a metal pole at age sixteen. Finally, the government argued that Judge Shirley improperly shifted the burden of proof from the defendant to the government by basing his ruling on “nothing more than the fact that the [government] did not provide any evidence other than the assault conviction” [Doc. 75 p. 3]. The government argued that the defendant's proof of an employment offer and a stable living situation-which ultimately proved unworkable, requiring a change in his place of residence-was insufficient to meet his burden.

         The defendant responded that he did offer clear and convincing proof that, with sufficient safeguards in place, he does not pose a danger to the community. The defendant noted that the felony charges underlying the revocation petitions have been dismissed for lack of probable cause, and the remaining misdemeanor assault conviction arose merely out of verbal threats heard in the background of a telephone call. Further, the defendant's conviction for this offense “was a ‘fill-in-the-blank' order that merely stated Assault, ” without furnishing additional evidence of violent behavior [Doc. 78 p. 1]. The defendant asserted that such conduct is not inherently dangerous, and further that his past history of violent conduct is considerably aged. Next, the defendant argued that the government's claim that his employment is not verified is inaccurate, as he provided sufficient proof of employment to Judge Shirley before the release order issued. Indeed, at the hearing, defense counsel proffered that the defendant is now working two separate jobs. As for his post-release living situation, the defendant argued that, in contacting the probation officer when problems arose after he returned to his girlfriend's house, the defendant was merely acting responsibly. The defendant therefore asserted that Judge Shirley made a thoughtful, reasonable decision based on the evidence presented at the hearing and the safeguards available to nullify any potential risks to the community.

         After considering all of these arguments, the Court issued an oral ruling revoking Judge Shirley's decision and ordering the defendant detained pending his revocation hearing [Doc. 79]. The Court now provides this memorandum ...


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