The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR REVOCATION OF MAGISTRATE CHANG'S ORDER DENYING DEFENDANT CHRISTIE'S SECOND MOTION TO REOPEN DETENTION HEARING AND FOR RELEASE ON BOND
Before the Court is Defendant Roger Cusick Christie's ("Defendant") Motion for Revocation of Magistrate Chang's Order Denying Defendant Christie's Second Motion to Reopen Detention Hearing and for Release on Bond ("Motion"), filed on July 24, 2012. [Dkt. no. 409.] Plaintiff the United States of America ("the Government") filed its memorandum in opposition on August 2, 2012. [Dkt. no. 414.] This matter came on for hearing on August 7, 2012. Appearing on behalf of Defendant was Thomas Otake, Esq., and appearing on behalf of the Government was Assistant United States Attorney Michael Kawahara. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendant's Motion is HEREBY DENIED for the reasons set forth below.
On June 24, 2010, Defendant was one of fourteen defendants charged in a fifteen-count indictment. Defendant is charged with: Count 1 - conspiracy to manufacture, distribute, and process with intent to distribute, inter alia, one hundred or more marijuana plants, in violation of 21 U.S.C. § 841(a)(1); Count 2 - manufacturing one hundred or more marijuana plants, in violation of § 841(a)(1) and (b)(1)(B); and Count 3 - possession with intent to distribute one hundred or more marijuana plants, in violation of § 841(a)(1) and (b)(1)(B). The charges arise primarily from the operation of the THC Ministry, which openly used and advocated for marijuana. Defendant was the founder and leader of the THC Ministry.
The Government filed a Motion to Detain Defendants Without Bail on July 9, 2010. [Dkt. no. 24.] The magistrate judge granted the motion as to Defendant at the July 13, 2010 hearing, and issued his written order on July 16, 2010. [Dkt. nos. 93, 113.] The magistrate judge found "by clear and convincing evidence that Christie is a danger to the community and that no condition or combination of conditions will assure the community's safety." [Order Detaining Def. Roger Cusick Christie Without Bail, filed 7/16/10 (dkt. no. 113), at 2.]
On July 14, 2010, Defendant filed a motion seeking revocation of the detention order pursuant to 18 U.S.C. § 3145(b) and seeking release on bail. [Dkt. no. 98.] Senior United States District Judge Alan C. Kay orally denied the motion at a July 16, 2010 hearing, [dkt. no. 116,] and issued his written order on July 20, 2010 ("7/20/10 Order").*fn1 Judge Kay ruled that "Defendant has failed to overcome the presumption that he is a danger to community [sic] because he has produced insufficient evidence to indicate that he will not continue to engage in drug trafficking if released on bail pending trial." 2010 WL 2900371, at *4. Further, even if Defendant had rebutted the presumption, the Government presented clear and convincing evidence that Defendant posed a danger to the community, and the majority of the 18 U.S.C. § 3142(g) factors weighed strongly in favor of detention. Id. at *4-7. Thus, Judge Kay also concluded that "'no condition or combination of conditions will reasonably assure . . . the safety of . . . the community.'" Id. at *7 (alterations in 7/20/10 Order) (quoting 18 U.S.C. § 3142(e)).
On July 20, 2010, Defendant filed an interlocutory appeal from Judge Kay's 7/20/10 Order, and the Ninth Circuit affirmed the order on August 5, 2010. [Dkt. nos. 124 (notice of appeal), 138 (Ninth Circuit order).]
On October 18, 2010, Defendant filed a Motion to Reopen Detention Hearing and to Release Defendant on Bond ("10/18/10 Motion"). [Dkt. no. 181.] United States District Judge David Alan Ezra denied the 10/18/10 Motion at a hearing on October 22, 2010. [Dkt. no. 189 (minutes).] At the hearing on the 10/18/10 Motion, defense counsel emphasized: Defendant's integrity and ties to the community on the Island of Hawai`i; his lack of criminal convictions except for a 1993 diversion case; his well-known advocacy of the legalization of marijuana as a religious sacrament or for medical use; the fact that the THC Ministry had closed; and the fact that all thirteen of his co-defendants have been released. Defense counsel therefore argued that Defendant could be trusted to follow the terms of release. [10/22/10 Hrg. Trans., filed 11/2/10 (dkt. no. 198), at 3-5.] Defense counsel acknowledged that the Ninth Circuit considered many of Defendant's arguments in the appeal from Judge Kay's 7/20/10 Order. [Id. at 6.] Judge Ezra ultimately found that there had been no substantial change in Defendant's circumstances since the 7/20/10 Order. Judge Ezra noted that: Defendant restarted the THC Ministry even after federal agents executed a search warrant and seized marijuana and cash from the THC Ministry; and the Government had evidence that, during its operations, the THC Ministry saw seventy people a day primarily for distribution. Judge Ezra found that Defendant posed a danger to the community because the evidence indicated that he would return to his activities if given the opportunity. [Id. at 19-22.]
Defendant filed an interlocutory appeal from Judge Ezra's October 22, 2010 ruling, and the Ninth Circuit affirmed the decision on December 7, 2010. [Dkt. nos. 193 (notice of appeal), 209 (Ninth Circuit order).]
On May 24, 2012, Defendant filed his Second Motion to Reopen Detention Hearing and for Release on Bond ("5/24/12 Motion"). [Dkt. no. 389.] Defendant argues that the § 3142(g) factors weigh in favor of pretrial release subject to the appropriate conditions. In addition, Defendant argues that the following changes in his circumstances warrant reopening his detention hearing: the trial date in this case has been continued to January 23, 2013; the fact that Defendant has not used marijuana during his twenty-month incarceration will facilitate his ability to remain drug and alcohol free upon release; Defendant's elderly mother in Colorado is receiving hospice care; and Defendant recently married co-defendant Sherry-Anne St. Cyr, who Defendant states is doing well in her pretrial release.
The magistrate judge denied the 5/24/12 Motion at a hearing on June 5, 2012, and issued his written order on June 6, 2012 ("6/6/12 Order"). [Dkt. nos. 395, 396.] The magistrate judge acknowledged that there were new circumstances, but he found that they were not relevant to the issues whether appropriate conditions of release would assure Defendant's appearance and the safety of other persons and the community.
Specifically, the Court considered the length and reasons for the trial continuance from February 28, 2012 to January 23, 2013, the circumstances surrounding the illness of the defendant's mother and the availability of an emergency furlough should it become necessary, and the defendant's marriage to his co-defendant, Sherry-Anne St. Cyr, and her conduct while on pretrial release. The Court finds that none of these circumstances, either individually or collectively, substantially affect the prior determination that there are no condition or combination of conditions which would reasonably assure the safety of the community. This prior determination was supported by clear and convincing evidence and was affirmed on appeal by the Ninth Circuit Court of Appeals. . . . [6/6/12 Order at 2.]