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United States v. Moore

United States District Court, E.D. Tennessee, Knoxville

April 18, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JIMMY McLAIN MOORE, Defendant.

          REPORT AND RECOMMENDATION

          Debra C. Poplin United States Magistrate Judge.

         All pretrial motions in this case have been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for disposition or report and recommendation regarding disposition by the District Court as may be appropriate. This case is before the Court on the Government's Emergency Motion Under 18 U.S.C. § 3145 for Revocation of Magistrate Judge's Release Order [Doc. 37], filed on March 15, 2018, and referred [Doc. 38] to the undersigned on that same day. On August 15, 2017, the grand jury charged Defendant Moore and two others with conspiring to distribute fifty grams or more of methamphetamine from May 2016 to January 5, 2017. Defendant Moore was arrested in the Northern District of California and brought before United States Magistrate Judge Susan van Keulen for an initial appearance on March 7, 2018. The Defendant requested a detention hearing, which was held before Magistrate Judge van Keulen on March 14, 2018. Judge van Keulen released the Defendant on conditions [Exh. 1] but stayed his release for twenty-four hours to allow the Government in this district to file an appeal.

         The Government filed the instant Emergency Motion, objecting to the Defendant's release due to the lack of suitable housing in either the Northern District of California or the Eastern District of Tennessee, the lack of stable employment, and the danger to the community revealed by from the Defendant's criminal history and apparent drug addiction. The Government requested that the Defendant's release continue to be stayed until the Court held a hearing in this district and also that the Court revoke Judge van Keulen's release order.

         That same day, United States District Judge Leon Jordan ordered [Doc. 38] that the release order be stayed pending resolution of the Emergency Motion, that the United States Marshal Service transport Defendant Moore to this district, that the transport be expedited, and that the undersigned hold a hearing on the matter of the Defendant's detention or release and prepare a report and recommendation on the issue. Defendant arrived in the district and appeared before the undersigned for an initial appearance on April 9, 2018. At that time, the Court appointed [Doc. 49] Attorney Mark E. Brown to represent the Defendant and scheduled a hearing on the Emergency Motion on April 16, 2018.[1]

         On April 12, 2018, Defendant Moore responded [Doc. 51] to the Emergency Motion, arguing that the conditions imposed by Judge van Keulen, along with any additional conditions desired by the Court, are sufficient to assure his appearance and the safety of the community. He argues that the Government's concerns about his housing situation are met by him living with his sister Pamela Moore while in California and with a friend on the rare occasions when the Defendant has to appear in court in Tennessee. Electronic monitoring will restrict the Defendant to his sister's residence, and the fear of putting his family's assets at risk will act as an additional deterrent. The Defendant argues that he will work as a caregiver for his mentally disabled sister, a position that he has held before. He also states that he will assist his mother, who is recovering from a recent stroke. Finally, the Defendant argues that the Government's reliance on the facts of this case to show that he is a danger must be balanced with the presumption that he is innocent of these crimes until proven guilty. He maintains that the extremely restrictive conditions imposed by the Northern District of California are sufficient to assure his appearance and protect the community.

         The parties appeared before the undersigned on April 16, 2018, for a hearing on the Government's Emergency Motion to revoke the Defendant's release. Assistant United States Attorney Cynthia F. Davidson appeared on behalf of the Government. Attorney Mark E. Brown represented the Defendant, who was also present. The Court heard the testimony of Postal Inspector Wendy Boles, the Defendant's daughter Jessica Moore, and the Defendant's family friend Regina Hodge. The Court also heard the arguments of counsel and some additional proffered information from defense counsel. Based upon the Pretrial Services Report prepared in the Northern District of California, a memorandum by United States Probation Officer Travis Worthington from this district, the evidence from the witnesses as well as the information proffered in the Defendant's initial detention hearing and at the April 16 hearing, the conditions imposed by Judge van Keulen, the additional conditions offered by the Defendant, and the factors listed in the Bail Reform Act, the undersigned RECOMMENDS that the Defendant continue to be released on conditions and that the Government's Emergency Motion be denied.

         I. SUMMARY OF INFORMATION OFFERED AT THE MARCH 14 DETENTION HEARING

         The Defendant appeared for a detention hearing in the Northern District of California, on March 14, 2018. The Government relied on the Pretrial Services Report, which recommends the Defendant be detained. Assistant United States Attorney Marissa Harris argued that the Defendant is presumed to be both a flight risk and a danger due to the nature of the charged offense.

         With regard to risk of flight, AUSA Harris argued that the Defendant lacks the financial resources to fly to and from Tennessee for court appearances, that he is transient and law enforcement had difficulty locating him for arrest, and that he has no stable employment. AUSA Harris also argued that the Defendant has a history of nonappearance, including three instances of failure to appear in Tennessee, four outstanding bench warrants, and probation violations. AUSA Harris noted the Pretrial Services Report reflects that the Defendant's children are not willing to post bond for him.

         With regard to the Defendant's dangerousness, AUSA Harris argued that the charged offense involves three kilograms of methamphetamine shipped in seventeen packages and that the Defendant is alleged to have been working in concert with others to ship drugs from San Jose to Tennessee and other places. She contended that this amount of methamphetamine would subject the Defendant to a substantial jail sentence if convicted. AUSA Harris argued that the Defendant has a severe criminal history and a potential drug addiction. Accordingly, the Government moved for detention because the Defendant is a risk of nonappearance in Tennessee and is also a danger to the community.

         Assistant Federal Public Defender Varell L. Fuller, counsel for the Defendant, argued that based on the information contained in the Pretrial Services Report, conditions exist that could mitigate any concerns about danger or failure to appear. With regard to the Defendant's flight risk, he said the allegations of prior instances of failure to appear have no dispositions and that the bench warrants, which relate to a weekend work program, have been resolved. He stated that the Defendant is not presently on probation or parole. With regard to the allegation that the Defendant was difficult to locate, Mr. Fuller argued that he has been residing intermittently with his mother, who is ill.

         Mr. Fuller argued that the Defendant is from a large extended family with significant ties to that area of California and also to the charging district. He stated that several of the Defendant's family members were in the courtroom to support him, including his son Jimmy Moore, his sister Pamela Moore, his step-father, and his daughter. He noted that the Defendant's mother wanted to be there but had recently suffered a health setback and could not come. Mr. Fuller said that Jimmy Moore and Pamela Moore will sign as sureties on an unsecured appearance bond of $100, 000. He also stated that Pamela Moore, who is an ICU nurse, will allow the Defendant to live with her in her home in Santa Clara and will pay for the Defendant to travel to Tennessee for court appearances. Mr. Fuller argued that the Defendant has some history of employment and that his sister Pamela would be able to assist him in securing employment in Santa Clara. He stated that the Defendant provides assistance to his older sister who has mental health issues as well as to his mother. Moreover, he contended that the Defendant has no assets with which to flee.

         Mr. Fuller maintained that the Defendant also has ties to Tennessee, where he lived at one point in his life. He stated that the Defendant has a brother Hershel Moore, who lives in Madisonville, Tennessee, and numerous family members who live in East Tennessee. He stated that the Defendant has never traveled internationally.

         With regard to the Defendant's dangerousness, Mr. Fuller argued that the Defendant's criminal history consists of misdemeanor convictions, with a single, prior felony conviction from eight years ago. He stated that the Defendant has no gang ties. Mr. Fuller argued that, although the instant offense involves controlled substances, there is no information that it involved threats of violence or firearms. He also said that the Defendant did not object to drug testing.

         Magistrate Judge van Keulen questioned the proposed sureties. Pamela Moore stated that she is the Defendant's sister and that she works four days per week as an ICU nurse at a hospital. She said that she and her husband own and live in a townhouse in Santa Clara, California. She offered to let the Defendant live with them, when he is in California. She stated that up until this point, the Defendant has been caring for their mother and their sister and living with their sister in her two-bedroom apartment in San Jose. She said that the Defendant has also lived with her before, although not recently, and that he frequently comes to her house and helps her. Ms. Moore stated that she would pay for the Defendant's plane tickets and set up accommodations for him, when he needed to go to Tennessee. She said that the Defendant could stay in a motel or with family. She said that their brother Hershel Moore told her that the Defendant could stay with him.

         Ms. Moore explained that their sister is mentally disabled and requires an in-home support service. She stated that she had been working with the Defendant, so that he could be compensated $1, 000 monthly to provide this care. She said that the Defendant has been fingerprinted and started a background check. She stated that the responsibilities include staying with their sister and taking care of her needs, distributing her medication and conducting a pill count at night, and taking her to laboratory and doctor appointments. Ms. Moore said this position does not require medical training and that her sister is very high functioning. She stated that the Defendant could return to her residence at night. Ms. Moore said that their mother had a mild stroke and is still experiencing impaired movement. She said that their mother lives with their step-father and that they recently purchased a house but have no equity in it. She said that their mother will be staying at an inpatient therapy facility for the next three weeks.

         Magistrate Judge van Keulen informed Ms. Moore that if the Defendant violated any conditions of his release or failed to appear for court, the bond would be forfeited, and Ms. Moore acknowledged her understanding of that matter. Judge van Keulen also explained this to Jimmy Moore, the Defendant's son. Both Pamela Moore and Jimmy Moore signed as sureties to the unsecured $100, 000 appearance bond.

         AUSA Harris responded that the Defendant has five convictions involving controlled substances, two of which are felony convictions. Additionally, she questioned the information from the sureties about where the Defendant has been living, because it is contradicted by the information from the Defendant that he has been living in this truck for the past two months. AUSA Harris also argued that an individual like the Defendant with a documented and serious drug addiction should not be providing medical care or be in charge of distributing medication. She contended that the only employment available to the Defendant is that of caregiver to his sister, which is unsuitable. Finally, AUSA Harris asked that if the Defendant is released, the Court stay his release for twenty-four hours to allow the Government attorneys in Tennessee time to appeal the release order.

         Magistrate Judge van Keulen found that the Defendant could be released on conditions.

         II. SUMMARY OF INFORMATION AND TESTIMONY AT THE APRIL 16 MOTION HEARING

         At the April 16 motion hearing, the Government presented the testimony of Postal Inspector Wendy Boles, who stated that employees of the Sweetwater Post Office contacted her in January 2017, regarding several suspicious packages coming from California. She said that a Monroe County detective stopped Jamie Cook, a defendant in the instant case, for a traffic violation as he was leaving the Sweetwater Post Office. A search of Cook revealed an express mail label to Defendant Moore in California. Inspector Boles testified that the package sent by Cook to Moore contained $2, 400, which was payment for methamphetamine to be delivered to Gary Holder, another codefendant. She intercepted the subsequent package from Defendant Moore to Holder, and posing as a postal employee, she called Holder to notify him to pick up the package. When Holder arrived, Inspector Boles handed him the package at the counter. According to Inspector Boles, law enforcement stopped Holder for running a stop sign, after leaving the post office. A drug detection dog alerted on Holder's car. The package retrieved from Holder's car contained sixteen ounces of “ice, ” a pure form of methamphetamine.

         Inspector Boles testified that Defendant Holder subsequently agreed to cooperate and gave information about Defendant Moore. Holder told her that Lonnie Moore and Jamie Cook paid him $200 to receive packages for Cook. The Monroe County Sheriff's Department recorded a telephone call from Holder to Jimmy Moore. The subscriber information for the telephone number used by Holder for the Defendant revealed an address of 4818 Kimball Hill, in Stockton, California. Holder also showed law enforcement several text messages from Defendant Moore, whom Holder listed as James Moore in his contacts. Holder said that Defendant Moore gave him a second phone number. The subscriber information for this second number revealed Jimmy Moore in California to be the subscriber. According to Inspector Boles, both addresses from the subscriber information for these two numbers were found on the express mail packages sent in this case. Based upon her investigation, Inspector Boles said seventeen packages were mailed from California to Tennessee, and they contained a total weight of over three kilograms of methamphetamine.

         Inspector Boles stated that she contacted the postal inspector in California and asked for surveillance of the individual at the return address listed on the packages. The California postal inspector was not able to locate Jimmy Moore. Inspector Boles said that Defendants Cook and Holder sent two packages containing money to Defendant Moore at 1141 Lovell Court. These packages were unusual, because they stated they were to be held for pickup at the post office. The California postal inspector attempted surveillance at 1141 Lovell Court, but that location had a “for sale” sign in the yard. Also, the occupants had moved without leaving a forwarding address. The California postal inspector also checked a second address, 4818 Kimball Hill Circle, Stockton, California, which appeared as a return address on packages sent to Tennessee. According to driver's license records, this was Jimmy Moore's ...


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