Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 745

Filed 05/10/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action No 04-cr-00103-REB-04 UNITED STATES OF AMERICA Plaintiff, v.

4. CHARLES LEWIS,

Defendant. _____________________________________________________________________ GOVERNMENT'S RESPONSE TO DEFENDANT LEWIS' SECOND MOTION TO MODIFY CONDITIONS OF PRETRIAL RELEASE ____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, objects to a hearing on the motion and to any further modification of the conditions of the defendant's pretrial release as set forth below: 1. 2. Defendant was originally ordered detained as a danger to the community. Thereafter the defendant filed a Motion for Reconsideration of Bond Based on Change of Circumstance [Doc. # 545] asserting changed circumstances including the availability of a job and residence and additional/new collateral. Id. at ¶ 9. 3. The government opposed the motion based on Lewis' continuing risk of flight and danger to the community and argued that none of the changed circumstances would mitigate the threat of victimization posed by Mr. Lewis. See

Case 1:04-cr-00103-REB

Document 745

Filed 05/10/2006

Page 2 of 5

Doc. # 559. 4. The Court granted defendant Lewis' motion in part and ordered that he be placed in a halfway house. However, the Court specifically found that Lewis was a continuing danger to the community, and on that basis denied him passes from the facility and prohibited him from travel and employment. See Minutes of Hearing on Motion to Reconsider Bond [Doc. # 575]. 5. The Bail Reform Act allows a bail hearing to be re-opened: if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue of whether there are conditions of release that will reasonable assure the appearance of such person as required and the safety of any other person and the community. 18 U.S.C. § 3142(f); see also United States v. Cisneros, 328 F.3d 610, 614 (10th Cir. 2003) ("reconsideration is permissible under this section only when there is new information that would materially influence the judgment about whether there are conditions of release which will reasonably assure that the defendant will not flee and will not harm any other person or the community"). 6. The defendant's new motion seeks relief to allow Lewis passes from the facility and to seek employment, but alleges no new information previously unavailable to him. Instead, it predicates the request on Lewis' mere compliance with the terms of his placement at the halfway house. Such compliance is not a change of circumstance or new information; if it were, every defendant would become eligible for reconsideration of an initial bond determination after some period during which that defendant did nothing but comply with a court's previous order concerning bond. Defendant Lewis' compliance is simply what the Court

Case 1:04-cr-00103-REB

Document 745

Filed 05/10/2006

Page 3 of 5

contemplated as a condition of continued placement at the halfway house versus the Federal Detention Center. 7. Lewis' repetitive requests for ever expanding freedoms are unsupported by any change of circumstance and appear designed to gradually erode the restrictions imposed by the Court in the interests of community safety. 8. Defendant's motion is facially deficient, and the requested relief was denied by the Court in its previous Order modifying the conditions of bond. See Doc. # 575. The motion is devoid of any alleged change of circumstances and is, in effect, an effort to persuade the Court to reconsider its previous ruling on the issue of passes and employment. As such, the motion should be denied without hearing. WHEREFORE, the government prays that defendant Lewis' motion be denied without hearing. Respectfully submitted this 10th day of May, 2006. WILLIAM J. LEONE United States Attorney District of Colorado

s/ WYATT B. ANGELO Wyatt B. Angelo Assistant U.S. Attorney 402 Rood Avenue, Suite 220 Grand Junction, CO 81501 Phone:970 241-3843 Fax: 970 248-3630 email: [email protected]

Case 1:04-cr-00103-REB

Document 745

Filed 05/10/2006

Page 4 of 5

s/ MATTHEW T. KIRSCH Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected]

Case 1:04-cr-00103-REB

Document 745

Filed 05/10/2006

Page 5 of 5

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 10th day of May, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT LEWIS' SECOND MOTION TO MODIFY CONDITIONS OF PRETRIAL RELEASE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Ronald Gainor, Esq. [email protected]

Daniel T. Smith, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Mitchell Baker, Esq. [email protected] Richard K. Kornfeld, Esq. [email protected]

s/ WYATT B. ANGELO Wyatt B. Angelo Assistant U.S. Attorney 402 Rood Avenue, Suite 220 Grand Junction, CO 81501 Phone:970 241-3843 Fax: 970 248-3630 email: [email protected]