The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge
This case is before the court for ruling on the Government's Motion for Review of Release Order (#39). Following this court's careful and de novo review, the Government's Motion (#39) is DENIED.
On May 5, 2006, Defendant, Brent K. Goselin, was charged by superseding indictment. In Counts 1 and 2 of the superseding indictment, Defendant was charged with filing a false tax return, in violation of 26 U.S.C. § 7206(1). In Count 3, Defendant was charged with tax evasion, in violation of 26 U.S.C. § 7201, and, in Count 4, Defendant was charged with unlawful money structuring, in violation of 31 U.S.C. §§ 5324(a)(3) and 5324(d)(1) and 31 C.F.R. § 103.11. The superseding indictment also sought forfeiture of $42,300.00 in U.S. Currency.
A jury trial began on the charges against Defendant on September 11, 2006. On September 15, 2006, this court declared a mistrial. The reason for the mistrial was that six pages which were not admitted into evidence were inadvertently included with an admitted exhibit and sent to the jury during deliberations. A new trial date was set for December 11, 2006. Defendant had been previously released on bond pending trial, and remained free on bond.
On October 12, 2006, the Government filed an Ex Parte Motion to Revoke Bond (#35).
Magistrate Judge David G. Bernthal issued an arrest warrant the same day, and Defendant was arrested. On October 13, 2006, Defendant appeared before Judge Bernthal. Defendant asked that the hearing on the Motion to Revoke Bond be continued. Judge Bernthal granted this request and the hearing was continued to October 26, 2006. Defendant also asked to be released pending the hearing. Over the Government's objection, Judge Bernthal ordered Defendant's bond to continue with the additional conditions of home detention and electronic monitoring. Judge Bernthal also unsealed the Government's Motion (#35). The exhibit attached to the motion remains filed under seal.
The hearing on the Government's Motion to Revoke Bond was held on October 26, 2006. Judge Bernthal heard evidence presented by the Government and Defendant. After hearing the evidence, Judge Bernthal DENIED the Government's Motion. Therefore, Defendant's bond remained in effect as previously modified.
After the hearing, the Government filed a Motion for Review of Release Order (#39). The Government asked this court to conduct a de novo review of Judge Bernthal's denial of the Government's Motion to Revoke Bond pursuant to 18 U.S.C. § 3145(b).
On November 2, 2006, Defendant was charged by second superseding indictment. In Count 1, Defendant was charged with conspiracy to distribute and possess 5 kilograms or more of a mixture or substance containing cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1). In Counts 2 and 3, Defendant was charged with filing a false tax return, in violation of 26 U.S.C. § 7206(1). In Count 4, Defendant was charged with tax evasion, in violation of 26 U.S.C. § 7201, and, in Count 5, Defendant was charged with unlawful money structuring, in violation of 31 U.S.C. §§ 5324(a)(3) and 5324(d)(1) and 31 C.F.R. § 103.11. In Count 6, Defendant was charged with money laundering, in violation of 18 U.S.C. 1956(a)(1)(B)(i) and (ii). The second superseding indictment also sought forfeiture of $42,300.00 in U.S. Currency.
On November 14, 2006, this court arraigned Defendant on the second superseding indictment. At the arraignment, Defendant stated that he would not be ready for trial on December 11, 2006. This court therefore rescheduled the final pretrial conference for March 13, 2007, and set the jury trial for April 2, 2006. This court then took the Government's Motion for Review of Release Order (#39) under advisement pending preparation of a transcript of the hearing before Judge Bernthal. This court allowed the Government until December 1, 2006, to file additional motions regarding Defendant's bond and allowed Defendant until December 15, 2006, to respond.
On December 1, 2006, the Government filed a Supplemental Memorandum in Support of Motion for Review of Release Order (#43). The Government argued that, contrary to Judge Bernthal's conclusion, the Government's evidence at the hearing on October 26, 2006, established probable cause to believe that Defendant engaged or attempted to engage in witness tampering and, therefore, obstructed justice, in violation of 18 U.S.C. § 1512(b). The Government argued that, specifically, the evidence established that, following this court's direct admonition not to contact witnesses, Defendant sought to contact and did contact as many as five witnesses with the intent to influence their testimony. The Government argued that it established, at the very least, a "fair probability" that Defendant had engaged in or attempted to engage in witness tampering. The Government further argued that, notwithstanding Defendant's actions concerning witness tampering, Defendant has now been charged with conspiracy to distribute 5 or more kilograms of cocaine. The Government stated that this offense carries a penalty of a mandatory minimum 10 years to life imprisonment and a rebuttable presumption that no conditions will reasonably assure the safety of the community or Defendant's appearance. The Government argued that the rebuttable presumption of detention is an independent reason to revoke Defendant's bond.
On December 12, 2006, the Government filed the transcript (#44) of the October 26, 2006, hearing before Judge Bernthal. The transcript shows that the Government called four witnesses at the hearing: Jason LeBeau, a special agent with the criminal investigation division of the Internal Revenue Service, Christopher Zullo, ...