Woodstock defense attorney Mark Gummerson was the man that Algonquin attorney Jason Smiekel got to represent him when Federal agents from the Bureau of Alcohol, Firearms and Explosives arrested him in a murder-for-hire plot the first week of August.
Gummerson withdrawal from the case was approved on August 26.
That day he was replaced by three Chicago attorneys:
- Darryl Goldberg
- Ralph Meczyk
- Mark Martin
Monday, Smiekel asked to be released from jail for the second time.
The first time Magistrate Michael Mahoney agreed with the idea, but the U.S. Attorney’s Office appealed and won a decision from Judge Frederick J. Kapala to continue pre-trial detention.
As was the case in second week of August, his request was denied.
Below is the ruling by Judge Kapala:
Defendant, Jason W. Smiekel, an attorney licensed in the State of llinois, is charged by indictment with seven counts of the use of interstate commerce facilities in the commission of murder for hire in violation of 18 U.S.C. § 1958.
These offenses are class C felonies punishable by terms of imprisonment of not more than 10 years on each count.
On August 11, 2011, this court ordered defendant detained pending trial after revoking the pretrial release order issued by the magistrate judge on August 10, 2011. Defendant now moves pursuant to 18 U.S.C. § 3145 to revoke the detention order. The motion is denied.
On August 11, 2011, this court held that the government proved by clear and convincing evidence that no condition or combination of conditions will reasonably assure the safety of any other person and the community. Specifically, in consideration of the applicable § 3142(g) factors, this court found that
- the charged offense qualified as a crime of violence, see 18 U.S.C. § 3156(a)(4)(A), and defendant had not argued otherwise;
- the government’s case against the defendant is strong;
- defendant’s favorable history and characteristics do not outweigh the other factors strongly weighing in favor of detention; and
- the nature and seriousness of the danger in the case is of the gravest type, the possible loss of human life.
The court agreed with the government that the ordered conditions of pretrial release,1 including home incarceration under electronic monitoring, were not conditions that would reasonably assure the safety of any other person because they were reactionary measures which would not prevent defendant, who had demonstrated a persistent willingness to terminate the life of people who interfere with his desires, from continuing his efforts to have the intended victim killed.
In support of the instant motion, defendant takes issue with two of this court’s previous rulings.
- First, he argues that the government has not proven that no set of release conditions will reasonably assure the safety of any other person and the community.
- Second, he argues that this is not a case in which the government is authorized to seek detention because the crime set forth in § 1958 is not a “crime of violence.”
In response to defendant’s motion, the government argues that defendant has failed to meet the standard for reopening a detention hearing. The court agrees.
Section 3142(f) provides:
The hearing may be reopened, before or after a determination by the judicial officer, at any time before trial 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 whether there are conditions of release that will reasonably assure . . . the safety of any other person and the community. 18 U.S.C. § 3142(f). Defendant maintains that he is now in a position to proffer additional matters not previously presented:
- his grandmother will post her unencumbered home valued at approximately $250,000;
- he consents to the government monitoring his mother’s home telephone;
- he agrees not to possess, use or access any computer;
- he will not have any visitors other than counsel and U.S. Pretrial Services Officers;
- he agrees not to engage in electronic communications of any kind; and
- he offers additional third-party custodians.
Although these newly suggested conditions of release are material to the question of whether there are conditions of release that will reasonably assure the safety of any other person and the community, the court cannot conclude that they are based on information unknown to the defendant at the time of his detention hearing before the magistrate judge on August 10, 2011, or when this court revisited the issue de novo on August 11, 2011.
Defendant’s agreement to consent to additional release conditions (2) through (5), as well as his suggestion that three additional individuals will serve as third-party custodians, do not constitute information that was not known to him at the time of the earlier proceedings.
Likewise, as to additional condition (1), defendant must have known about his grandmother’s home and, at minimum, knew of the potential that she would post the asset in an effort to secure his release.
Defense counsel argues that defendant’s former counsel chiefly practices in state court where pledging real estate is very uncommon and, consequently, did not think to suggest this condition earlier.
Whether defendant’s former counsel actually knew about this possibility is unknown. Nevertheless, the standard is knew or should have known. See United States v. Taylor, No. 1:06CR111-1, 2007 WL 580627, at *2 (N.D. W. Va. Feb. 21, 2007) (applying should have known standard in § 3142(f)(2) new information analysis). This court judicially notices that defendant’s former counsel has been a member of this court’s trial bar since 1985 and as such is certainly charged with knowledge of § 3142(c)(B)(xi).2 Consequently, the court concludes that defendant has produced no new information that was not known to the him at the time of the earlier proceedings. This being so, defendant has failed to establish that the detention hearing should be reopened.
Even assuming for argument’s sake that defendant has satisfied the criteria for reopening a detention hearing, and assuming that the suggested conditions could be implemented, these conditions would not change the judgment of this court that there are no conditions of release which will reasonably assure that defendant will not harm any other person or the community. In addition to the findings this court already made in its order of August 11, as discussed below, the court makes additional findings regarding the applicable § 3142(g) factors using the clear and convincing evidence standard of § 3142(f)(2).
As an initial matter, the court notes that, in addition to the conditions of release previously ordered and those suggested by defendant, the court has considered all the conditions of release listed in 18 U.S.C. § 3142(c)(B)(i) through (xiv) in order to comply with its obligation to consider the possibility of less restrictive alternatives to detention. The court is mindful that defendant is presumed innocent during these proceedings.
See 18 U.S.C. § 3142(j). However, the court continues to believe that the evidence presented by the government in its evidentiary proffer demonstrates a strong case.
Defendant argues that this court overlooked the nature of the right to bail by basing its decision on only the nature of the offense and the strength of the evidence.
This is not true.
The court balanced all the applicable § 3142(g) factors and concluded that no set of conditions of release could reasonably assure the safety of the intended victim because:
[s]uch measures are reactionary and not preventative and defendant has demonstrated a willingness to terminate the life of people who interfere with his desires, including the intended victim and ostensibly the two hit men who took his money. Even under home confinement and electronic monitoring defendant would have at his disposal various ways of continuing his efforts to have the intended victim killed.
While the investigation of any harm done to the intended victim or any witness in this case would certainly be focused on defendant, any deterrent effect this creates is overshadowed by defendant’s persistence over the past seven months to have the intended victim killed.
The newly suggested conditions, like those previously ordered, are also reactionary and do not provide the court with a reasonable assurance of the intended victim’s safety in view of defendant’s persistent effort to take another’s life over a seven-month period as discussed in this court’s previous order.
The most vigorously debated new condition is the suggestion that defendant’s grandmother would agree to forfeit her $250,000 home should defendant violate a condition of release. Defense counsel calls this condition “moral suasion,” explaining that defendant is not likely to do anything to jeopardize his grandmother’s retirement.
However, in the court’s view, the fact that defendant’s grandmother is willing to pledge her home to secure defendant’s release says much about how important defendant is to her, but says nothing about defendant’s affection for his grandmother.
Counsel’s “moral suasion” argument, like his argument that it is very unlikely that defendant, now standing accused, will do anything to make his situation worse, does not hold up if defendant actually considers himself backed in a corner with nothing to loose.
Newly suggested conditions (3) through (5) are not materially different than the conditions of release previously ordered by the magistrate judge and subsequently found insufficient by this court. In addition, the court notes that defendant is a lawyer and as such is charged with knowledge of the law including the law prohibiting the use of interstate commerce facilities in the commission of murder for hire.
Despite this knowledge, the government proffers a strong case that defendant persisted in his efforts to have the intended victim killed for a seven-month period.
As such, defendant’s proffer that he agrees to various conditions of release does not give the court any comfort that he will abide by them.
Condition (2), tapping and listening to defendant’s mother’s land line, which is necessary to operate any electronic monitoring device, was not previously suggested. The government states that monitoring this line would require an agent to work around the clock, cost thousands of dollars, and that it is not fair to place that burden on the government.
In response, defendant claims that there is software available which could be used to monitor the line such that 24-hour-a-day man power would not be required. Due to the uncertainty and lack of evidence on the feasibility of this condition, the court cannot determine if it could be implemented. However, even assuming that this condition could be utilized in a cost effective way, it is still a reactionary measure and does not afford the court sufficient assurance of the intended victim’s safety.
Condition (6), defendant’s offer of the services of three additional third-party custodians, would only provide the court with three additional people bound to report defendant’s deviations from the conditions of release. See 18 U.S.C. § 3142(c)(B)(i). However, should defendant continue his efforts to have the intended victim killed, whether there is one report of the violation or four, it will likely be too late to assure his safety.
In sum, based on the foregoing findings as well as those made in this court’s previous order, the court cannot conclude that the proposed conditions of release are sufficient to overcome the safety concerns previously stated. Clearly, detention may be ordered based upon a finding that the defendant is likely to continue to engage in criminal activity which poses a threat to the safety of the particular person. See, e.g., United States v. Daniels, 772 F.2d 382 (7th Cir. 1985).
As for defendant’s contention that this court erred in concluding that the offense charged qualifies as a crime of violence, it is without merit.
The federal murder-for-hire statute requires the government to prove that the accused intended for a murder to be committed “as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value.” 18 U.S.C. § 1958(a). Crime of violence means:
(A) an offense that has an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; [or]
(B) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 3156(a)(4)(A) & (B).
Obviously, murder under Illinois law involves a substantial risk that physical force against the person of another may be used. See 720 ILCS 5/9-1. Consequently, one need not look beyond the plain language of § 3156(a)(4)(A) to conclude that the charged offense is a crime of violence.
In addition, the government points out that several courts have explicitly found that a violation of § 1958(a) is a crime of violence within the meaning of 18 U.S.C. § 3142(f)(1)(A). See United States v. Barnett, 986 F. Supp. 385, 395 (W.D. La. 1997); United States v. Ouedraogo, No. 1:08-cr-68, 2009 WL 3270076, at *3 (W.D. Mich. Oct. 8, 2009); United States v. Ross, No. 1:05-CR-160, 2007 WL 1295995, at *3 (W.D. Mich. Apr. 6, 2007). Thus, there was no error in determining that defendant is charged with a crime of violence and is thereby subject to pretrial detention.
For the foregoing reasons, the court denies defendant’s motion to revoke the detention order previously ordered by this court.
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FN1. In addition to the standard conditions of pretrial release and a $4,500 recognizance bond, the magistrate judge imposed the following conditions: (1) the defendant must live at the residence of his mother and stepfather; (2) his mother to serve as a third-party custodian of the defendant; (3) the defendant surrender his FOID card and passport; (4) no firearms are allowed in his mother’s residence; (5) he have no contact with any potential witnesses or alleged intended victims; and (6) he is on “home incarceration” with electronic monitoring at defendant’s expense.
FN2. This section provides for the “execut[ion of] an agreement to forfeit upon failing to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person as required, and shall provide the court with proof of ownership and the value of the property along with information regarding existing encumbrances as the judicial office may require.” 18 U.S.C. § 3142(c)(B)(xi)