McHenry County Blog

A press release from the U.S. Attorney’s Office:

Algonquin Attorney Sentenced to 8 1/2 Years on Federal Murder for Hire Charge

Rockford-An Algonquin, Ill., attorney was sentenced today to by U.S. District Court Judge Frederick J. Kapala to  8 1/2 years in federal prison for using an interstate facility, a cell phone, in a murder-for-hire scheme.

Jason W. Smiekel, 31, of Algonquin pled guilty to the charge on April 12, 2012, and admitted to using his cell phone with the intent that a murder-for-hire be committed.

Smiekel was charged by indictment on Aug. 16, 2011, with federal murder-for-hire charges.

In his plea agreement, Smiekel admitted that in late July 2011, he asked an individual if that individual knew someone who would commit a murder-for-hire.

The individual provided Smiekel with the first name and cellular telephone number for an ATF Special Agent acting in an undercover capacity.

On Aug. 1, 2011, Smiekel offered to pay the undercover agent $20,000 to kill a certain person.

The next day, Smiekel used his cell phone, a facility of interstate commerce, to arrange for a meeting with the undercover agent, where Smiekel gave $1,500 in expense money and a photograph of the intended victim to the undercover agent.

On Aug. 4, 2011, after Smiekel paid $7,000 more to the undercover agent as a partial payment for the murder, ATF agents arrested Smiekel at a restaurant in Elgin, Ill.

The sentencing was announced today by Gary S. Shapiro, Acting United States Attorney for the Northern District of Illinois, and W. Larry Ford, Special Agent-In-Charge of the Chicago Office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The ATF’s Rockford office conducted the investigation, with the assistance of the Algonquin Police Department.

The government was represented by Assistant United States Attorney John G. McKenzie.

Despite his guilty plea agreement about a month ago, Algonquin attorney Jason Smiekel’s attorneys asked for a delay in sentencing in Rockford today, according to the U.S. Attorney’s Office.

The date set for the next attempt at sentencing is November 28th.

September 19th is the day that Algonquin attorney Jason Smiekel will learn his fate in his murder-for-hire scheme.

He plead guilty in mid-April.  Here’s the paperwork.

You can find his indictment here.

The affidavit that got him arrested is here.

A press release from the U.S. Attorney’s Office:

ALGONQUIN ATTORNEY PLEADS GUILTY TO FEDERAL MURDER FOR HIRE CHARGE

ROCKFORD — An Algonquin, Ill., attorney pleaded guilty today to using an interstate facility, a cell phone, in a murder-for-hire scheme. In pleading guilty, JASON W. SMIEKEL, 30, of Algonquin, admitted to using his cell phone with the intent that a murder-for-hire be committed.

Smiekel faces up to 10 years of imprisonment and a $250,000 fine.

Smiekel is scheduled to be sentenced on July 17, 2012, at 10:00 a.m. by U.S. District Judge Frederick J. Kapala.

Smiekel was charged by indictment on August 16, 2011, with federal murder-for-hire charges.

In his plea agreement, Smiekel admitted that in late July 2011, he asked an individual if that individual knew someone who would commit a murder-for-hire.

The individual provided Smiekel with the first name and cellular telephone number for an ATF Special Agent acting in an undercover capacity.

On August 1, 2011, Smiekel offered to pay the undercover agent $20,000 to kill a certain person.

The next day, Smiekel used his cell phone, a facility of interstate commerce, to arrange for a meeting with the undercover agent, where Smiekel gave $1,500 in expense money and a photograph of the intended victim to the undercover agent.

On August 4, 2011, after Smiekel paid $7,000 more to the undercover agent as a partial payment for the murder, ATF agents arrested Smiekel at a restaurant in Elgin, Ill.

[See August 1, 2011, probable cause statement here.]

The plea agreement was announced today by Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, and Andrew L. Traver, Special Agent-In- Charge of the Chicago Office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives.

The ATF’s Rockford office conducted the investigation, with the assistance of the Algonquin Police Department. A copy of the plea agreement will available at here.

The government was represented by Assistant United States Attorney John G. McKenzie.

Here is Algonquin attorney Jason Smiekel‘s guilty plea agreement:

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
UNITED STATES OF AMERICA )
) No. 11 CR 50055
vs. ) Judge Frederick J. Kapala
)JASON W. SMIEKEL )

PLEA AGREEMENT

1. This Plea Agreement between the United States Attorney for the Northern District of Illinois, PATRICK J. FITZGERALD, and defendant JASON W. SMIEKEL, and his attorneys, RALPH E. MECZYK and MARC W. MARTIN, is made pursuant to Rule 11
of the Federal Rules of Criminal Procedure and is governed in part by Rule 11(c)(1)(A), as more fully set forth below. The parties to this Agreement have agreed upon the following:

Charges in This Case

2. The indictment in this case charges defendant with use of an interstate facility commerce with the intent that a murder-for-hire be committed

3. Defendant has read the charges against him contained in the indictment, and those charges have been fully explained to him by his attorney.

4. Defendant fully understands the nature and elements of the crimes with which he has been charged.

Charge to Which Defendant Is Pleading Guilty

5. By this Plea Agreement, defendant agrees to enter a voluntary plea of guilty to the following count of the indictment:

Count 3, which charges defendant with, having the intent that a murder be committed in violation of the laws of Illinois as consideration for the receipt of and as consideration for a promise or agreement to pay money, did use a facility of interstate commerce, in violation of 18 U.S.C. § 1958.

Factual Basis

6. Defendant will plead guilty because he is in fact guilty of the charge contained in Count 3 of the indictment. In pleading guilty, defendant admits the following facts and that those facts establish his guilt beyond a reasonable doubt:

a. In general, on August 2, 2011, in Lake County, in the Northern District of Illinois, defendant, with the intent that a murder be committed in violation of Illinois state law as consideration for the receipt of and as consideration for the a promise and agreement to pay something of pecuniary value, used a facility of interstate commerce, namely a cellular telephone.

b. More specifically, defendant admits that in late July 2011, he asked an individual if that individual knew someone who would commit a murder-for-hire. After contacting law enforcement, the individual provided defendant with the first name and cellular telephone number for an Alcohol, Tobacco, Firearms and Explosives Special Agent acting in an undercover role (referred to as the “undercover agent”). On August 1, 2011, defendant and the undercover agent spoke on the telephone and then met later that day at a restaurant in Elgin, Illinois. At the restaurant, defendant identified the individual that he wanted to have killed (referred to as the “intended victim”). Defendant agreed to pay $20,000 to the undercover agent in payment for killing the intended victim. Defendant agreed to meet with the undercover agent on the following day and to provide $1,500 in expense money and a photograph of the intended victim to the undercover agent.

c. On August 2, 2011, defendant, intending that a murder for hire be committed, used his cellular telephone to call the undercover agent in order to complete arrangements to meet that day for the purpose of furthering the murder for hire. Later on August 2, 2011, defendant met with the undercover agent. Defendant gave $1,500 in cash and a photograph of the intended victim to the undercover agent. The cash was intended to be used to pay for the undercover agent’s expenses in making the contract killing. Defendant agreed to pay the rest of the money for the murder at a later time.

d. On August 4, 2011, the undercover agent called and advised defendant that the murder for hire would take place that day. Defendant agreed to pay $7,000 to the undercover agent in advance of the murder and to later pay an additional amount. That afternoon, defendant met with the undercover agent at a restaurant in Elgin. There, defendant gave $7,000 in cash to the undercover agent as partial payment for the murder for hire of the intended victim.

Maximum Statutory Penalties

7. Defendant understands that the charge to which he is pleading guilty carries the following statutory penalties:

a. A maximum sentence of 10 years’ imprisonment. This offense also carries a maximum fine of $250,000.Defendant further understands that the judge also may impose a term of supervised release of not more than three years.

b. In accord with Title 18, United States Code, Section 3013, defendant will be assessed $100 on the charge to which he has pled guilty, in addition to any other penalty imposed.

c. The judge may also impose a term of probation of between 1 and 5 years.

Sentencing Guidelines Calculations

8. Defendant understands that in imposing sentence the Court will be guided by the United States Sentencing Guidelines. Defendant understands that the Sentencing Guidelines are advisory, not mandatory, but that the Court must consider the Guidelines in determining a reasonable sentence.

9. For purposes of calculating the Sentencing Guidelines, the parties state the following:

a. Applicable Guidelines. The parties agree that the Sentencing Guidelines to be considered in this case are those in effect at the time of sentencing. The following statements regarding the calculation of the Sentencing Guidelines are based on the Guidelines Manual currently in effect, namely the November 2011 Guidelines Manual.

b. Offense Level Calculations.

i. The government will contend that the base offense level is 33, pursuant to Guideline § 2A1.5(a) and that the offense level should be increased by 4 levels to level 37 pursuant to Guideline § 2A1.5(b)(1), as the offense involved the offer and receipt of money for undertaking the murder. ii. The defendant will contend that the base offense level is 32 Guideline § 2E1.4.

iii. The parties agree that defendant has clearly demonstrated a recognition and affirmative acceptance of personal responsibility for his criminal conduct.

If the government does not receive additional evidence in conflict with this provision, and if defendant continues to accept responsibility for his actions within the meaning of Guideline § 3E1.1(a), including by furnishing the United States Attorney’s Office and the Probation Office with all requested financial information relevant to his ability to satisfy any fine that may be imposed in this case, a two-level reduction in the offense level is appropriate.

iv. The parties agree that in accord with Guideline § 3E1.1(b), defendant has timely notified the government of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the Court to allocate its resources efficiently. Therefore, as provided by Guideline § 3E1.1(b), if the Court determines the offense level to be 16 or greater prior to determining that defendant is entitled to a two-level reduction for acceptance of responsibility, the government will move for an additional one-level reduction in the offense level.

c. Criminal History Category. With regard to determining defendant’s criminal history points and criminal history category, based on the facts now known to the government, defendant’s criminal history points equal zero and defendant’s criminal history category is I.

d. Anticipated Advisory Sentencing Guidelines Range. Therefore, based upon the facts now known to the government and using the Guidelines the government contends are applicable, the anticipated offense level is 34, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 151 to 188 months’ imprisonment, in addition to any supervised the Court may impose. Using the Guidelines defendant contends are applicable, the anticipated offense level is 29, which, when combined with the anticipated criminal history category of I, results in an anticipated advisory Sentencing Guidelines range of 87 to 108 months’ imprisonment, in addition to any supervised the Court may impose.

e. Defendant and his attorney and the government acknowledge that the above Guideline calculations are preliminary in nature, and are non-binding predictions upon which neither party is entitled to rely. Defendant understands that further review of the facts or applicable legal principles may lead the government to conclude that different or additional Guideline provisions apply in this case. Defendant understands that the Probation Office will conduct its own investigation and that the Court ultimately determines the facts and law relevant to sentencing, and that the Court’s determinations govern the final Guideline calculation. Accordingly, the validity of this Agreement is not contingent upon the probation officer’s or the Court’s concurrence with the above calculations, and defendant shall not have a right to withdraw his plea on the basis of the Court’s rejection of these calculations.

f. Both parties expressly acknowledge that this Agreement is not governed by Fed.R.Crim.P. 11(c)(1)(B), and that errors in applying or interpreting any of the Sentencing Guidelines may be corrected by either party prior to sentencing. The parties may correct these errors either by stipulation or by a statement to the Probation Office or the Court, setting forth the disagreement regarding the applicable provisions of the Guidelines.

The validity of this Agreement will not be affected by such corrections, and defendant shall not have a right to withdraw his plea, nor the government the right to vacate this Agreement, on the basis of such corrections.

Agreements Relating to Sentencing

10. Each party is free to recommend whatever sentence it deems appropriate and may ask the Court to vary above or below the applicable Guidelines range as determined by the Court.

11. It is understood by the parties that the sentencing judge is neither a party to nor bound by this Agreement and may impose a sentence up to the maximum penalties as set forth above. Defendant further acknowledges that if the Court does not accept the sentencing recommendation of the parties, defendant will have no right to withdraw his guilty plea.

12. Defendant agrees to pay the special assessment of $100 at the time of sentencing with a cashier’s check or money order payable to the Clerk of the U.S. District Court.

13. Defendant agrees that the United States may enforce collection of any fine or restitution imposed in this case pursuant to Title 18, United States Code, Sections 3572, 3613, and 3664(m), notwithstanding any payment schedule set by the Court.

14. After sentence has been imposed on the count to which defendant pleads guilty as agreed herein, the government will move to dismiss the remaining counts of the indictment as to defendant.

Acknowledgments and Waivers Regarding Plea of Guilty

Nature of Agreement

15. This Agreement is entirely voluntary and represents the entire agreement between the United States Attorney and defendant regarding defendant’s criminal liability in case 11 CR 50055.

16. This Agreement concerns criminal liability only. Except as expressly set forth in this Agreement, nothing herein shall constitute a limitation, waiver, or release by the United States or any of its agencies of any administrative or judicial civil claim, demand, or cause of action it may have against defendant or any other person or entity. The obligations of this Agreement are limited to the United States Attorney’s Office for the Northern District of Illinois and cannot bind any other federal, state, or local prosecuting, administrative, or regulatory authorities, except as expressly set forth in this Agreement.

Waiver of Rights

17. Defendant understands that by pleading guilty he surrenders certain rights, including the following:

a. Trial rights. Defendant has the right to persist in a plea of not guilty to the charges against him, and if he does, he would have the right to a public and speedy trial.

i. The trial could be either a jury trial or a trial by the judge sitting without a jury. However, in order that the trial be conducted by the judge sitting without a jury, defendant, the government, and the judge all must agree that the trial be conducted by the judge without a jury.

ii. If the trial is a jury trial, the jury would be composed of twelve citizens from the district, selected at random. Defendant and his attorney would participate in choosing the jury by requesting that the Court remove prospective jurors for cause where actual bias or other disqualification is shown, or by removing prospective jurors without cause by exercising peremptory challenges.

iii. If the trial is a jury trial, the jury would be instructed that defendant is presumed innocent, that the government has the burden of proving defendant guilty beyond a reasonable doubt, and that the jury could not convict him unless, after hearing all the evidence, it was persuaded of his guilt beyond a reasonable doubt and that it was to consider each count of the indictment separately. The jury would have to agree unanimously as to each count before it could return a verdict of guilty or not guilty as to that count.

iv. If the trial is held by the judge without a jury, the judge would find the facts and determine, after hearing all the evidence, and considering each count separately, whether or not the judge was persuaded that the government had established defendant’s guilt beyond a reasonable doubt.

v. At a trial, whether by a jury or a judge, the government would be required to present its witnesses and other evidence against defendant. Defendant would be able to confront those government witnesses and his attorney would be able to cross examine them.

vi. At a trial, defendant could present witnesses and other evidence in his own behalf. If the witnesses for defendant would not appear voluntarily, he could require their attendance through the subpoena power of the Court. A defendant is not required to present any evidence.

vii. At a trial, defendant would have a privilege against self-incrimination so that he could decline to testify, and no inference of guilt could be drawn from his refusal to testify. If defendant desired to do so, he could testify in his own behalf.

b. Waiver of appellate and collateral rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 28, United States Code, Section 1291, and Title 18, United States Code, Section 3742, afford a defendant the right to appeal his conviction and the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court, and any part of the sentence (or the manner in which that sentence was determined), including any term of imprisonment and fine within the maximums provided by law, in exchange for the concessions made by the United States in this Agreement. In addition, defendant also waives his right to challenge his conviction and sentence, and the manner in which the sentence was determined, and (in any case in which the term of imprisonment and fine are within the maximums provided by statute) his attorney’s alleged failure or refusal to file a notice of appeal, in any collateral attack or future challenge, including but not  limited to a motion brought under Title 28, United States Code, Section 2255.The waiver in this paragraph does not apply to a claim of involuntariness, or ineffective assistance of counsel, which relates directly to this waiver or to its negotiation, nor does it prohibit defendant from seeking a reduction of sentence based directly on a change in the law that is applicable to defendant and that, prior to the filing of defendant’s request for relief, has been expressly made retroactive by an Act of Congress, the Supreme Court, or the United States Sentencing Commission.

c. Defendant understands that by pleading guilty he is waiving all the rights set forth in the prior paragraphs. Defendant’s attorney has explained those rights to him, and the consequences of his waiver of those rights.

Presentence Investigation Report/Post-Sentence Supervision

18. Defendant understands that the United States Attorney’s Office in its submission to the Probation Office as part of the Pre-Sentence Report and at sentencing shall fully apprise the District Court and the Probation Office of the nature, scope, and extent of defendant’s conduct regarding the charges against him, and related matters. The government will make known all matters in aggravation and mitigation relevant to sentencing.

19. Defendant agrees to truthfully and completely execute a Financial Statement (with supporting documentation) prior to sentencing, to be provided to and shared among the Court, the Probation Office, and the United States Attorney’s Office regarding all details of his financial circumstances, including his recent income tax returns as specified by the probation officer. Defendant understands that providing false or incomplete information, or refusing to provide this information, may be used as a basis for denial of a reduction for acceptance of responsibility pursuant to Guideline § 3E1.1 and enhancement of his sentence
for obstruction of justice under Guideline § 3C1.1, and may be prosecuted as a violation of Title 18, United States Code, Section 1001 or as a contempt of the Court.

20. For the purpose of monitoring defendant’s compliance with his obligations to pay a fine during any term of supervised release or probation to which defendant is sentenced, defendant further consents to the disclosure by the IRS to the Probation Office and the United States Attorney’s Office of defendant’s individual income tax returns (together with extensions, correspondence, and other tax information) filed subsequent to defendant’s sentencing, to and including the final year of any period of supervised release or probation to which defendant is sentenced. Defendant also agrees that a certified copy of this
Agreement shall be sufficient evidence of defendant’s request to the IRS to disclose the returns and return information, as provided for in Title 26, United States Code, Section 6103(b).

Other Terms

21. Defendant agrees to cooperate with the United States Attorney’s Office in collecting any unpaid fine for which defendant is liable, including providing financial statements and supporting records as requested by the United States Attorney’s Office.

Conclusion

22. Defendant understands that this Agreement will be filed with the Court, will become a matter of public record, and may be disclosed to any person.

23. Defendant understands that his compliance with each part of this Agreement extends throughout the period of his sentence, and failure to abide by any term of the Agreement is a violation of the Agreement. Defendant further understands that in the event he violates this Agreement, the government, at its option, may move to vacate the Agreement, rendering it null and void, and thereafter prosecute defendant not subject to any of the limits set forth in this Agreement, or may move to resentence defendant or require defendant’s specific performance of this Agreement. Defendant understands and agrees that in the event that the Court permits defendant to withdraw from this Agreement, or defendant breaches any of its terms and the government elects to void the Agreement and prosecute defendant, any prosecutions that are not time-barred by the applicable statute of limitations on the date of the signing of this Agreement may be commenced against defendant in accordance with this paragraph, notwithstanding the expiration of the statute of limitations between the signing of this Agreement and the commencement of such prosecutions.

24. Should the judge refuse to accept defendant’s plea of guilty, this Agreement shall become null and void and neither party will be bound to it.

25. Defendant and his attorney acknowledge that no threats, promises, or representations have been made, nor agreements reached, other than those set forth in this Agreement, to cause defendant to plead guilty.

26. Defendant acknowledges that he has read this Agreement and carefully reviewed each provision with his attorney. Defendant further acknowledges that he understands and voluntarily accepts each and every term and condition of its Agreement.

AGREED THIS DATE: _____________________
PATRICK J. FITZGERALD,  JASON W. SMIEKEL
United States Attorney, Defendant
JOHN G. McKENZIE, RALPH E. MECZYK, Assistant United States Attorney
Attorney for Defendant
MARC W. MARTIN, Attorney for Defendant

Friday, the Chicago Sun-Times Jacob High School graduate reporter Natasha Korecki reported on the sentence of Bryon Lane for being convicted in a murder-for-hire plot.

The details are in the paper, but I can’t find a link.

What might be of more interest to McHenry County readers is the sentence.

It was 9 years.

Algonquin attorney Jason Smiekel faces similar charges.

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

1. the charged offense qualified as a crime of violence, see 18 U.S.C. § 3156(a)(4)(A), and defendant had not argued otherwise;
2. the government’s case against the defendant is strong;
3. defendant’s favorable history and characteristics do not outweigh the other factors strongly weighing in favor of detention; and
4. 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:

1. his grandmother will post her unencumbered home valued at approximately $250,000;
2. he consents to the government monitoring his mother’s home telephone;
3. he agrees not to possess, use or access any computer;
4. he will not have any visitors other than counsel and U.S. Pretrial Services Officers;
5. he agrees not to engage in electronic communications of any kind; and
6. 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.

= = = = =

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)

Haven’t seen this before.

The U.S. Attorney’s Office references the use of a Lexus in its indictment of Algonquin attorney Jason Smiekel.

It is described as “a facility of interstate commerce.”

Take a look at Count 2 below:

COUNT TWO

The SEPTEMBER 2010 GRAND JURY further charges:

On or about August 1, 2011, in Lake County, in the Northern District of Illinois, and elsewhere,

JASON W. SMIEKEL,

defendant herein, with the intent that a murder be committed in violation of the laws of the State of Illinois as consideration for the receipt of and as consideration for a promise or agreement to pay anything of pecuniary value, did use a facility of interstate commerce, namely a Lexus automobile;

In violation of Title 18, United States Code, Section 1958.

His use of a cell phone is also four of the seven counts; his use of the Lexus in the other three.  All are in McHenry and Lake Counties.

A press release from the U.S. Attorney’s Office:

ALGONQUIN MAN INDICTED ON FEDERAL MURDER FOR HIRE CHARGES

Rockford – An Algonquin, Ill. man was indicted today and charged with seven counts of using interstate facilities in a murder-for-hire scheme.

The indictment alleges that between Aug. 1 and 4, 2011, JASON W. SMIEKEL, 29, of Algonquin, Illinois, used his cell phone and car with the intent that a murder-for-hire be committed.

If convicted, Smiekel faces up to 10 years of imprisonment and a $250,000 fine for each count. Smiekel is scheduled to be arraigned on the charges tomorrow, Aug. 17, 2011, at 11:00 a.m. before federal Magistrate Judge P. Michael Mahoney.

Smiekel was arrested in Elgin, Ill. on August 4, 2011, on a murder-for-hire charge.

A criminal complaint was filed against Smiekel the following morning in federal court in Rockford, charging him with using a cell phone in a murder-for-hire scheme.

The criminal complaint alleged that Smiekel was arrested in the parking lot of a restaurant in Elgin after passing $7,000 in cash to an undercover ATF special agent who was posing as a “hitman.”

The murder was purportedly scheduled to take place later that day around 5:30 p.m.

The indictment was announced today by Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, and Andrew L. Traver, Special Agent-In-Charge of the Chicago Office of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. The ATF’s Rockford office conducted the investigation, with the assistance of the Algonquin Police Department.

A copy of the indictment will available at http://www.justice.gov/usao/iln/pr/rockford/2011/index.html.

The government was represented by Assistant United States Attorney John G.
McKenzie.

Members of the public are reminded that an indictment is only a charge and is not evidence of guilt. The defendant is entitled to a fair trial at which the government has the burden of proving that defendant’s guilt beyond a reasonable doubt.

The Court Order issued after the U.S. Attorney’s appeal of a pre-trial home detention ruling for Algonquin attorney Jason Smiekel by Magistrate Michael Mahoney in Rockford Federal Judge Frederick J. Kapala on August 11th follows:

= = = = =
Original August 5, 2011, article containing affidavit is here.
= = = = =

STATEMENT

Defendant, Jason W. Smiekel, an attorney licensed in the State of Illinois, is charged by criminal complaint with the use of interstate commerce facilities in the commission of murder for hire in violation of 18 U.S.C. § 1958. This offense is a class C felony punishable by a term of imprisonment not more than 10 years.

The government has appealed a pre-trial release order issued by Magistrate Judge P. Michael Mahoney on August 10, 2011. The government seeks revocation of that order asserting that the imposed conditions of release are not adequate to protect the safety of any other person or of the community. Defendant opposes detention and argues that the conditions of his release are sufficient to ensure the safety of the community.

On August 11, 2011, this court accepted the parties’ evidentiary proffers and heard oral argument on the government’s appeal. For the reasons that follow, the government’s motion to revoke the pre-trial release order is granted and defendant is ordered detained pending trial.

I. BACKGROUND

After finding probable cause, the magistrate judge conducted a detention hearing. At the hearing, both the government and defendant submitted oral proffers to the court.

The magistrate judge denied the United States’ motion for pre-trial detention and entered an order granting pre-trial release. In addition to the standard conditions of pre-trial release and a $4,500 recognizance bond, the magistrate judge imposed the following
conditions:

• the defendant must live at the residence of defendant’s mother and stepfather;
• his mother, a licensed realtor, is a third-party custodian of the defendant;
• the defendant surrender his FOID card and passport;
• no firearms are allowed in his mother’s residence;
• he have no contact with any potential witnesses or alleged intended victims; and
  he is
• the defendant must live at the residence of defendant’s mother and stepfather;
• on “home incarceration” with electronic monitoring at
  defendant’s expense.

At the government’s request, the pre-trial release order was stayed until 5 p.m. on August 11, 2011.

The government has submitted a written evidentiary proffer which is summarized as follows. According to the government, defendant’s motive to kill the intended victim is not completely clear at the present time but it represents that the following events took place in February 2011:

(2) defendant began a romantic relationship with his fiancee;
(3) the fiancee and the intended victim previously had a child together;
(4) defendant represented the intended victim in a contentious state-court proceeding involving, in part, child custody;
(5) the fiancee was the other party in the court proceeding; and
(6) defendant called the intended victim, said that he had been in a bar, had met the fiancee, that they “made out,” and that defendant could no longer represent the intended victim in the state-court proceeding because of “ethics.”FN1

In February 2011, defendant approached one of his friends seeking a hit-man and the friend put defendant in contact with two hit-men. Defendant has claimed that he paid the two hit-men an $8,000 down payment on an agreement to murder the intended victim for $15,000. The two hit-men did not commit the murder and absconded with the money.

In late April to early May 2011, defendant approached one of his clients who owed him attorney’s fees and asked the client to connect him with someone who would “scare” the intended victim.FN2

According to defendant, the intended victim was hurting his girlfriend and her child. Defendant provided the client with a photograph of, and personal details about, the intended victim, including the residence, vehicle, and employment of the intended victim. Defendant indicated that he now wanted someone who would hurt the intended victim and suggested breaking the intended victims’ legs. Later during this meeting, defendant said “it wouldn’t be too
bad if the intended victim was dead.” Thereafter, defendant continued to call the client, asking if the client had found anyone to take care of the intended victim. On June 14, 2011, defendant met with the client, continued to press the client on collection of the attorney’s fees, and told the client to “just kill the ass-hole.” On June 20, 2011, defendant spoke to the client on the telephone and again raised the issue of the client arranging for a
hit-man. The client told defendant that killing the intended victim was not worth it and that defendant could lose everything he had. Defendant responded,

“Will you just think about it?”

A cooperating individual (CI) told two ATF agents that on July 27, 2011, defendant approached him and said that he wanted to have the intended victim murdered in order to prevent the intended victim from giving damaging testimony in a proceeding.FN3  Defendant indicated that his girlfriend’s ex-husband, the intended victim, had information about him that could get him in trouble and lead to a criminal indictment. Defendant wanted to have the intended victim killed prior to a July 29, 2011 court appearance. Defendant told the CI that he previously paid two hit-men a total of $8,000 to murder the intended victim, with the understanding that an
additional $7,000 would be paid upon completion of the task. Defendant indicated that the two males took off with the $8,000 and never committed the murder. Defendant asked the CI if he could “get it done” and indicated that he was willing to pay up to $25,000 for the murder.
On July 28, 2011, the CI told defendant that, “I’m willing to do the 25. What do you need?” Defendant told the CI that the intended victim had evidence that would completely destroy him and that he needed something done by the following day. The CI told defendant that nothing would happen that quickly.

On July 29, 2011, defendant called the CI’s cell phone and indicated that he was able to buy himself more time in regards to thecourt date.

On July 31, 2011, the CI, while equipped with two covert recording devices, met with defendant and told him that he knew an individual named “Chris” who would be willing to complete the task that he and defendant had discussed. Defendant wrote the intended victim’s name, address, and place of employment on a piece of paper, along with a phone number that “Chris” was to use to contact defendant. Defendant told the CI that he still wanted to pay someone to kill the intended victim, that the intended victim was about to “ruin” him, and that he had been reported to the ARDC. Defendant also asked about the proposed cost saying, “I need to be ready
money-wise.” The CI said that defendant again discussed how he had tried to have this done in February 2011 and indicated that he wanted it completed by August 5, 2011. Defendant requested that “Chris” call him on the phone number on the piece of paper.

On August 1, 2011, ATF Special Agent Chris Bayless, posing as a hit-man, called defendant and arranged to meet him at a restaurant. That evening defendant walked out of the restaurant and got into Bayless’ undercover car. Defendant introduced himself as “Jason” and told Bayless that there was a guy who was causing him family problems and problems with his livelihood. Defendant said six months ago he had foreseen troubles and had gone to someone else, but had been ripped off.FN4  Bayless said that he was not sure whether he wanted the job but that for the right price, anything could get taken care of. Defendant said he had a time problem and that the intended victim had “dirt” on him that could ruin his career. Defendant said there was no other solution.

Defendant identified the locations of the intended victim’s place of employment and health club. Bayless said it would cost about “twenty.” Defendant agreed to pay $1,500 up front, described the physical appearance of the intended victim, and agreed to provide a photograph. Defendant and Bayless agreed to meet the following day at the same restaurant.

On August 2, 2011, defendant met Bayless at the restaurant and the meeting was covertly audio and video  recorded. Defendant gave Bayless an envelope containing a small photograph of the intended victim and $1,500 in currency. Bayless said he had already put “things in motion,” and that he planned on making it look like the murder stemmed from a robbery. Defendant said that he would have part of the money on Friday and they discussed how defendant would pay the remainder. Bayless said that he would call defendant when “it’s done.” Bayless said that if he got an earlier opportunity to kill the intended victim, he would take advantage of that and would call defendant after the murder. Otherwise, Bayless would try to kill the intended victim by Thursday and defendant agreed to try and pay Bayless $10,000 right after the murder with the rest of the fee to be paid later. The meeting ended with Bayless saying that he would call defendant when the intended victim was dead.

On August 4, 2011, Bayless and defendant had a series of telephone calls during which Bayless asked whether defendant had the money and defendant said that he had $7,000. According to bank records, on August 3, 2011, defendant’s fiancee withdrew $7,000 in cash from a joint checking account of defendant and his fiancee.FN5

Bayless asked defendant whether he wanted to drive by the scene of the murder in order to confirm that theintended victim had died and defendant indicated that he did not. Defendant said that he trusted Bayless and would provide the $7,000 up front. They agreed to meet at the same restaurant later that day. At approximately 4:17 p.m. on August 4, 2011, Bayless and defendant met in the parking lot of the restaurant. Defendant got into Bayless’ vehicle and handed him an envelope containing $7,000 in United States currency. After discussing how
defendant would pay the rest of the fee for the murder, Bayless gave the arrest signal and ATF special agents arrested defendant.

Defense counsel proffered a conversation that he had with attorney George Collins, defendant’s attorney in connection with the ARDC proceeding. According to counsel, Collins indicated that the ARDC complaint filed by the intended victim was not very serious and that defendant did not receive notice of the claim until July 29, 2011.

II. ANALYSIS

The district court considers appeals under § 3145 de novo. United States v. Portes, 786 F.2d 758, 761 (7th Cir. 1985). The government only argues that pre-trial conditions are insufficient to assure the safety of persons in the community, not that conditions are insufficient to assure defendant’s appearance in court.

Defendant argues that the conditions of his release are sufficient to ensure the safety of the community. Thus, the issue before the court is whether there is any condition or combination of conditions that will reasonably assure the safety of any other person and the community. The court makes the following findings regarding the applicable § 3142(g) factors using the clear and convincing evidence standard of § 3142(f)(2).

(1) The Nature and Circumstances of the Offense Charged, Including Whether the Offense Is a Crime of Violence, a Federal Crime of Terrorism, or Involves a Minor Victim or a Controlled Substance, Firearm, Explosive, or Destructive Device

The court finds that the charged offense qualifies as a crime of violence. See 18 U.S.C. § 3156(a)(4)(A) (stating that “[a] crime of violence means an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another”). Defendant has not argued to the contrary. Accordingly, this factor weighs in favor of detaining defendant pending trial.

(2) The Weight of the Evidence Against Defendant

The court finds that the government’s case against the defendant is strong. The government’s proffer indicated that defendant approached multiple parties over a seven-month time frame in an effort to have the intended victim murdered.

Even after being “ripped off” by the first two hit-men and being told by one of his clients that it was a bad idea, defendant persisted in finding someone to perform the murder. A substantial portion of defendant’s efforts to hire someone to kill the intended victim are corroborated in recorded conversations.

The only arguments defendant advances against the conclusion that the evidence against him is strong are  that:

1. he categorically denies the allegations in the government’s proffer;
2. it makes little sense that he would attempt to kill the intended victim in February 2011when he only just met his fiancee that month; and
3. defendant had no motive arising out of the purported ARDC complaint on July 27, 2011, because he did not receive notice of the complaint until July 29, 2011.

These arguments are not persuasive. The first argument is not an argument at all. Defendant’s second argument seems to suggest that it takes time to form the intent to kill.

The court is not sure that is true. In any event, the evidence of defendant’s efforts to hire someone to kill the intended victim encompass more than event occurring in February 2011. As for the third argument, the evidence suggests that the ARDC complaint is only one of multiple motives defendant had to have the intended victim killed. Moreover, the proffered evidence shows that defendant was trying to have the intended victim killed before and after he received notice of the ARDC complaint. Therefore, whether defendant had notice of the ARDC claim on July 27 or July 29 is not significant. Based on the foregoing, the court finds that the
government’s case against the defendant is strong and this factor weighs in favor of detaining defendant pending
trial.

(3) The History and Characteristics of the Person

The court acknowledges that defendant apparently has no criminal history, defendant is a licensed attorney in this State, and has ties in the Northern District of Illinois such as the fact that his mother and step-father reside in the district. Nevertheless, even though some of the components of the history and characteristics factor favor release, under the circumstances this factor is insufficient to outweigh the other § 3142(g) factors that weigh in favor of detention.

(4) The Nature and Seriousness of the Danger to Any Person or the Community That Would Be Posed by the Person’s Release

The nature and seriousness of the danger in this case is of the gravest type, the possible loss of human life.

The facts alleged in the government’s evidentiary proffer point to a murder for hire.

According to a yet unnamed friend, defendant hired two hit- men to kill the intended victim in February 2011. Defendant confirmed this fact when he told the CI and Bayless that he tried to hire someone in the past but was ripped off. Defendant told his client that “it wouldn’t be too bad if the intended victim was dead” and “just kill the ass-hole.” Defendant asked the CI if he could “get it done,” indicated that he was willing to pay up to $25,000 for the murder, and was receptive to meeting with “Chris,” the hit-man that the CI referred to defendant. Defendant told Bayless that “there was no other solution,” hired him to kill the intended victim, and paid him $8,500 of the agreed $20,000 price. Notably, defendant made no protest of mistake or misunderstanding to Bayless’ remark “I’ll call you when he is dead.”

The court agrees with the government that the conditions of pre-trial release, including home incarceration under electronic monitoring, are not conditions that will reasonably assure the safety of the intended victim. Such 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 can be 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.

III. CONCLUSION

The court finds by clear and convincing evidence that no condition or combinations of conditions of pretrial release will reasonably assure the safety of persons in the community. Consequently, the government’s motion is granted, the pre-trial release order is revoked, and defendant is ordered detained pending trial.

= = = = =

Footnotes:
1. The government informs the court that much of this information was not presented before the magistrate judge either because it was not yet available or to protect the identity of the intended victim. In response, defense counsel took the position that only the facts that the fiancee withdrew $7,000 and the relationship between defendant and his fiancee were not presented to the magistrate judge. In light of the fact that this court “may start from scratch, ” United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991), it is not essential that the court determine what was and was not presented to the magistrate judge.

2. At the hearing, the attorney for the government supplemented the written proffer by indicating that the client was someone who has an affiliation with a violent motorcycle club.

3. Since the detention hearing before the magistrate, the government has learned that in July 2011 the intended victim filed a complaint against defendant with the ARDC. On July 27, 2011, the intended victim received correspondence from the ARDC stating that it had received his complaint and had requested that defendant respond to the allegations.

4. At a subsequent meeting with Bayless, defendant said that if the two hit men tried to make trouble for him, he might have to hire Bayless again.

5. The government informs the court that this information was received on August 11, 2011, and was not presented to the magistrate judge at the detention hearing.