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United States v. Hendricks

United States District Court, M.D. Florida, Jacksonville Division

November 15, 2019

United States of America, Plaintiff,
v.
Robert H. Hendricks, Defendant.

          ORDER

          Patricia D. Barksdale United States Magistrate Judge.

         A grand jury has returned an indictment charging Robert Hendricks with twelve counts of wire fraud, in violation of 18 U.S.C. § 1343. Doc. 1. According to the allegations in the indictment, the defendant used his reputation for savviness in the commercial real estate world to defraud clients, including friends, out of millions of dollars. Doc. 1.

         The United States moved for the defendant's detention under 18 U.S.C. § 3142(f)(2)(A) on the ground there is a serious risk he will flee. Docs. 7, 8. He opposed the motion. Doc. 12. The United States had to show by a preponderance of the evidence that no condition or combination of conditions will reasonably assure his presence as required.[1]

         The undersigned conducted a detention hearing, during which counsel for both sides proffered facts and offered exhibits. Docs. 12, 12-1-12-11. At the end of the hearing, the undersigned granted the motion, Doc. 12, and entered written findings, Docs. 14, 14-1.

         The defendant now moves for reconsideration, Docs. 21, 25. The United States opposes the motion. Doc. 24. The undersigned conducted a hearing on the motion and took the motion under advisement.[2] Doc. 29.

         A defendant who wants to challenge a pre-trial detention order by a magistrate judge has three options. He can ask the magistrate judge to reopen the detention hearing under 18 U.S.C. § 3142(f). He can ask the district judge to revoke the detention order under 18 U.S.C. § 3145(b). Or he can appeal the detention order to the appellate court under 18 U.S.C. § 3145(c) and Fed. R. App. P. 9(a).

         The defendant proceeds under a different route for which he provides no legal authority: he asks the magistrate judge to reconsider the detention decision based not on an error of law or an error of material fact but on the same evidence already considered or on evidence that could have been presented the first time around. See generally Doc. 21. Insofar as the Bail Reform Act provides no such “do-over, ” the Court will deem the motion for reconsideration as a motion to reopen the detention hearing.

         To reopen a detention hearing, a judge must find 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 whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(f). Reopening is unwarranted if the newly offered evidence was available at the time of the hearing. United States v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991); United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989). And even then, reopening is discretionary. United States v. Watson, 475 Fed.Appx. 598, 599-600 (6th Cir. 2012).

         In his effort to obtain reconsideration rather than reopening, the defendant offers no such information in the motion.[3] Doc. 21. But at the hearing on the motion, he presented such information: voluminous discovery provided by the United States after the detention hearing showing that investigators possess extensive, detailed information about his bank accounts and other financial affairs. At least at the hearing, the United States made no argument that the discovery is not new and material or otherwise insufficient to reopen the detention hearing.

         The discovery impacts the detention decision. A significant concern underlying the detention decision was the defendant's access to cash or other assets to enable him to flee. Having considered the amount of discovery, combined with the credible testimony of John Hendricks, that concern has been addressed sufficiently. Together, they suggest the defendant has no such assets. While the United States referenced cash withdrawals in 2017 that have not been accounted for, there is no indication those remain available to the defendant.

         The following combination of conditions, along with others, will reasonably assure the defendant's appearance as required:

• He must execute an unsecured appearance bond binding him to pay the United States of America $25, 000.
• He must reside with and remain in the custody of John Hendricks as the ...

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