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United States v. Moser

United States District Court, D. Hawaii

October 30, 2014

JAMES MOSER (07) and WILLIAM SHINYAMA (15), Defendants.


LESLIE E. KOBAYASHI, District Judge.

Before the Court are: Defendant William Shinyama's ("Shinyama") Motion for Reconsideration of the Order Granting Government's Motion to Detain Defendant Without Bail ("Shinyama's Motion"); and Defendant James Moser's ("Moser") Motion for Reconsideration of Detention ("Moser's Motion", collectively "the Motions"), [1] both filed on April 21, 2014. [Dkt. nos. 264, 269.] On April 28, 2014, Plaintiff the United States of America ("the Government") filed a memorandum in opposition to each of the Motions. [Dkt. nos. 280, 281.] Later that day, Shinyama filed his reply. [Dkt. no. 282.]

These matters came on for an evidentiary hearing on April 30, 2014. At the hearing, this Court granted the Government leave to file supplemental briefs. The Government filed a supplemental memorandum in opposition to each of the Motions on May 6, 2014. [Dkt. nos. 297, 298.] After careful consideration of the Motions, supporting and opposing memoranda, and the arguments of counsel, Moser's Motion and Shinyama's Motion are HEREBY DENIED for the reasons set forth below.


On September 12, 2013, the grand jury issued an eleven-count'Indictment against eighteen defendants, including Moser and Shinyama. Count Two of the Indictment charges Moser with violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3), (b)(1) and 18 U.S.C. § 1961(1). It alleges that, on or about July 9, 2009, Moser assaulted D.G. "for the purpose of gaining entrance to, and maintaining and increasing position within [the prison gang known as] the USO Family.'" [Indictment at 9-10.] Count Four charges Shinyama, and others, with violent crimes in aid of racketeering. It alleges that, on or about February 17, 2013, they assaulted B.L. "for the purpose of gaining entrance to, and maintaining and increasing position within the USO Family." [Id. at 11-13.] At the time of the respective assaults, Moser, D.G., Shinyama, and B.L. were incarcerated at the State of Hawaii's ("the State") Halawa Correctional Facility ("Halawa").

Shinyama appeared for his arraignment on September 24, 2013 and entered a plea of not guilty to the Indictment. The magistrate judge ordered him detained, and he submitted to detention. [Minutes, filed 9/24/13 (dkt. no. 52).]

Also on September 24, 2013, the Government filed its Motion to Detain Defendants Without Bail ("Detention Motion"), seeking to detain sixteen of the defendants, including Moser and Shinyama, pursuant to 18 U.S.C. § 3142. [Dkt. no. 53.] The Detention Motion was terminated as to Shinyama because he submitted to detention. According to the Government, Shinyama arrived at the Federal Detention Center in Honolulu ("FDC") on September 24, 2014 "as a United States Marshals Service (USMS) pretrial inmate who was borrowed via a writ of habeas corpus ad prosequendum from the State of Hawaii with whom he was serving a sentence of imprisonment." [Mem. in Opp. to Shinyama's Motion at 3.] He has been housed at FDC in the Special Housing Unit ("SHU") as an administrative detainee since that time. [Id.]

Moser's arraignment was on October 15, 2013, and he entered a plea of not guilty to the Indictment. [Minutes, filed 10/15/13 (dkt. no. 128).] At Moser's October 18, 2013 detention hearing, the magistrate judge granted the Detention Motion. [Minutes, filed 10/18/13 (dkt. no. 141).] The magistrate judge found that Moser was both a flight risk and a danger to the community. [Detention Order Pending Trial, filed 10/22/13 (dkt. no. 149), at 2.] According to the Government, Moser arrived at FDC on October 15, 2013 and has been housed in the SHU in administrative detention since that time. He was also borrowed from the State pursuant to a writ of habeas corpus ad prosequendum. [Mem. in Opp. to Moser's Motion at 3.]

At a hearing on April 4, 2014, this Court accepted Shinyama's plea of guilty to Count Four and scheduled his sentencing hearing for July 31, 2014. [Minutes, filed 4/4/14 (dkt. no. 251).] Shinyama's Motion asks this Court to reconsider the magistrate's detention order and to grant him bail so that he can serve the remaining time prior to his sentencing hearing at Halawa. He argues that he would not be a flight risk or a danger to the community if he is released to Halawa. In addition, Shinyama argues that: because he is being held in the SHU, "he has been deliberately deprived of many privileges and forced to live under inhumane and intolerable conditions[;]" and FDC officials have retaliated against him for filing a grievance regarding "the cruel and insufferable conditions." [Shinyama's Motion at 2-3.] According to Shinyama, the inhuman and intolerable conditions include, inter alia : maggots in inmates' food; insufficient access to clean clothes; insufficient access to warm clothes and/or blankets; insufficient recreation time; insufficient access to hygiene items and personal food and drink items; and insufficient contact visits with family members. He contends that many of these conditions would be resolved if he were transferred out of the SHU and into the general FDC population. [Id. at 4.] He also states that he has been subjected to the following forms of retaliation: pretextual disciplinary "write ups" after he made complaints about the intolerable conditions in the SHU; having his radio taken away and his phone privileges restricted; pretexual cell searches; and taunting, insults, and indifference from FDC staff in response to his complaints about the intolerable conditions. [Id. at 3-5.] Shinyama asserts that "he has been treated like an animal' at the FDC SHU." [Id. at 5.]

Moser's Motion argues that this Court should release him to the State's custody while this case is pending.[2] He also argues that, because he is currently serving a State prison term, he would be neither a flight risk nor a danger to the community. Moser joins in the other arguments in Shinyama's Motion, to the extent that "said motion is applicable to him." [Moser's Motion at 2.]

At the April 30, 2014 evidentiary hearing, this Court heard testimony by Shinyama and Defendant Tineimalo Adkins ("Adkins").[3] Adkins testified that one of the other co-defendants in this case (who Adkins did not identify by name) obtained a copy of the policies applicable to inmates in the SHU. The co-defendant confronted FDC Lieutenant Kline about why they were not being provided with the number of clothing items specified in the policy. According to Adkins, Lieutenant Kline responded in a verbally aggressive manner, and FDC staff later conducted a "shake down" of the cells of the co-defendants in this case. [4/30/14 Hrg. Trans. at 10.] He stated that, when the co-defendants went to their monthly hearings to review their SHU assignments, they were taken together and all of their cells were "shaken down" while they were gone. Adkins asserted that this was to dissuade them from going to the hearings. [Id. at 20.] He also claimed that the FDC staff was not responding to their inmate grievances and other requests, and that the staff was not allowing them to make phone calls to their attorneys. [Id. at 11, 18-19.] Adkins stated he has been denied: access to the law library; the opportunity to practice his religion; and necessary medical treatment. He did not specify whether his co-defendants were also experiencing those denials. [Id. at 13-14, 24.]

In addition to the conditions described in his motion, Shinyama testified that: the FDC staff was interfering with his receipt of books that he ordered through the mail; and the staff denied him access to a computer, which he needed to review discovery that his counsel sent to him on CDs. Once he did have access to a computer, he still could not review the discovery because he did not know how to open the files, and the FDC staff did not assist him. [Id. at 70-73.] He testified that he is "frustrated" and "disgusted" with "the situation that [he] and [his] codefendants [have been] going through for the last seven months." [Id. at 79.] According to Shinyama, when he was in segregation at Halawa it was "a lot better" than being in the FDC SHU. [Id. at 80.]

The Government's supplemental memoranda addressed the issues which arose during the testimony at the evidentiary hearing but which the parties had not addressed in the documents filed prior to the hearing.


Although neither Moser's Motion nor Shinyama's Motion cites 18 U.S.C. § 3145(b), [4] each appears to invoke that statute to seek review of his respective detention order by the magistrate judge.

A district judge must review a magistrate judge's pretrial detention order de novo. United States v. Koenig , 912 F.2d 1190, 1191 (9th Cir. 1990). However, the district judge "is not required to start over in every case, and proceed as if the magistrate's decision and findings did not exist." Id. at 1193. "The standard of review for pretrial detention orders is one of deference to the [magistrate judge's] factual findings, absent a showing that they are clearly erroneous, coupled with an independent review of the facts, the findings, and the record to determine whether the order may be upheld." United States v. Gebro , 948 F.2d 1118, 1121 (9th Cir. ...

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