United States District Court, E.D. Wisconsin
ORDER GRANTING GOVERNMENT'S MOTION FOR REVIEW OF
PRETRIAL RELEASE OF DEFENDANT (DKT. NO. 24), VACATING ORDER
SETTING CONDITIONS OF RELEASE (DKT. NO. 21) AND ORDERING
DEFENDANT DETAINED PENDING PLEA AND SENTENCING
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
30, 2017, officers arrested the defendant for being a felon
in possession of a firearm. Dkt. No. 20 at 3; Dkt. No. 1. The
officers were responding to a report of shots being fired in
the 4100 block of North 19th Street, when they found the
defendant and another person sitting in a car in front of
4129 North 20th Street; it was around 11:30 at night. Dkt.
No. 20 at 3. The officers stopped to ask the two if
they'd heard the shots, and shone the squad car's
spotlight into the car (the defendant was in the passenger
seat). Id. The defendant looked at the officers,
then turned away and got out of the car on the passenger
side. Id. He began to move away from the
officers-the parties disagree about whether he walked away,
walked briskly away or ran, but they agree that he
was moving away from the officers. One of the officers
observed the defendant holding his right side “with his
right arm near his pants pocket, in a manner consistent with
the carrying of an unholstered firearm.” Id.
The other officer says that he saw a gun as the defendant
walked away (briskly or otherwise). The second officer told
the defendant to stop, but the defendant continued to move
away toward the house at 4129 North 20th Street. The officers
apparently caught up with the defendant, and detained him on
the porch of that house. Id. He had a loaded Smith
and Wesson, model SW40VE, .40-caliber pistol in his right
front pants pocket; the serial number on the gun had been
days later, the Milwaukee County District Attorney's
Office filed a complaint, charging the defendant with being a
felon in possession of a firearm, resisting an officer and
possessing a firearm while under a harassment injunction.
State v. Johnson, 2017CF003013 (Milwaukee County
Circuit Court), available at https://wcca.wicourts.gov. At
the initial appearance, the commissioner ordered the
defendant released to the supervision of Justice Point on a
$2, 500 cash bond, with the conditions that he maintain
absolute sobriety, participate in drug testing and not
possess firearms; the commissioner also required him to
appear at all future court dates. Id. The defendant
posted bond five days later. Id.
defendant showed up for the next three hearings: the
preliminary hearing on July 11, 2017; a July 14, 2017 hearing
regarding a violation of bond (during which the commissioner
admonished the defendant, but didn't revoke his
supervision); and a scheduling conference on August 1, 2017
(at which the judge set a final pretrial conference for
September 21, 2017 and a jury trial for October 11, 2017).
Id. On August 31, 2017, however-two months after the
defendant's arrest and release-Justice Point filed a
“discharge summary, ” which caused the judge to
schedule a bond hearing for September 8, 2017. Id.
The defendant did not show up for that hearing, and the court
issued a warrant. Id.
later, a federal grand jury indicted the defendant on a
single count of being a felon in possession, based on the
events that took place on the night of June 30, 2017. Dkt.
and a half passed from the date the defendant last had
appeared in state court. On April 22, 2019, the defendant was
picked up on the state bench warrant. State v.
Johnson, 2017CF003013 (Milwaukee County Circuit Court),
available at https://wcca.wicourts.gov. The circuit court
judge set bail at $4, 000. Id. This court, through
Magistrate Judge Nancy Joseph, scheduled an initial
appearance/arraignment and plea hearing for May 17, 2019, and
issued a writ of habeas corpus to bring the
defendant from state custody to the federal court for that
hearing. Dkt. No. 2. The defendant asked to be returned to
the Milwaukee County Jail after the hearing. Dkt. No. 4.
Judge Joseph issued a federal detainer, so that if the
defendant were released from state custody, he would be
remitted to federal custody until a federal judge could
determine whether he should be detained or released. Dkt. No.
25, 2019, the state court dismissed the state charges on the
assistant district attorney's motion to dismiss, given
the pending federal charge. Id., State v.
Johnson, 2017CF003013 (Milwaukee County Circuit Court),
available at https://wcca.wicourts.gov.
17, 2019, the defendant filed a motion asking the federal
court to release him with conditions. Dkt. No. 19. The motion
indicated that the defendant had an extensive employment
history, including work as a paint technician and
“roughly four years” as a welder at Super Steel.
Id. at 2. It stated that the defendant's last
criminal conviction had been a misdemeanor criminal damage to
property charge, for which he'd received a sentence of
probation (which he'd completed successfully).
Id. The defendant proposed that if released, he
could live with his sister Fawanda Johnson and her
fifteen-year-old son at 7881 N. 60th Street in Milwaukee.
Id. The defendant expressed confidence that he could
obtain work quickly, given his training and job experience.
Id. The motion opined that while the defendant had
no formal mental health diagnosis, he had
“uncharacteristically” stopped attending his
state court hearings and stopped communicating with his state
probation officer. Id. at 3. The motion indicated
that when defense counsel had asked why the defendant had
stopped going to state court when this case was pending
there, the defendant “described feelings and thoughts
that seemed to reflect symptoms of depression.”
Id. Defense counsel recommended that the court order
the defendant to undergo a mental health assessment and
follow any treatment recommendations. Id.
next day-July 18, 2019-the parties filed an executed plea
agreement, in which the defendant agreed to plead guilty to
one count of being a felon in possession of a firearm. Dkt.
No. 20. Among other things, the plea agreement provides that
at sentencing, the defendant will recommend a sentence of no
less than thirty months, while the government will recommend
a sentence of no greater than seventy-eight months-a
four-year difference. Id. at 7. The same day, this
court scheduled a sentencing hearing for July 29, 2019 at
2:30 p.m. The following day-July 19, 2019-Judge Joseph
calendared a hearing on the defendant's motion for bond,
setting it for July 23, 2019 at 10:00 a.m.
the defendant appeared before Judge Joseph for a bond hearing
six days before he was scheduled to appear before this court
to enter a guilty plea on a charge for which he had agreed
that he would ask for a sentence of no less than thirty
months in federal prison.
Joseph and the parties had available to them a prior record
memo prepared by the pretrial services department. Dkt. No.
3. The document showed that the defendant had a criminal
history dating back to 1996, when he was fifteen.
Id. at 2-3. While the history reflected nine prior
convictions, none appeared to involve violent behavior
(although a 2015 conviction for criminal damage to property
and disorderly conduct included the words “domestic
abuse”). The defendant has convictions for possession
of small amounts of marijuana and cocaine in his teens and a
conviction for carrying a loaded gun in a car and possessing
drug paraphernalia and drugs when he was twenty (for which he
received a sentence of sixty days in jail). He accumulated
convictions for bail jumping and failing to appear when he
was twenty and twenty-one, one of which led to a sentence of
two years in custody and two years' extended supervision.
Id. Between 2003 and 2009, it appears that the
defendant stayed out of trouble; between 2009 and the events
of June 30, 2017 he accrued minor convictions for disorderly
conduct, possession of marijuana/resisting (for which he
received a sentence of nine months in jail), operating under
the influence, and criminal damage to property/disorderly
conduct. Id. In two of these four latter cases, he
received probationary sentences. In four of the nine
convictions, the defendant received some sort of
supervision-either an extended supervision component of a
prison sentence or a probation sentence. In three out of four
of those cases, the supervision was revoked-once when he was
in his early twenties (for two different cases) and once in
his late twenties. Id.
parties and Judge Joseph also had available to them a
pretrial services report. Dkt. No. 8. The report showed that
the defendant is thirty-eight years old and has lived in
Milwaukee pretty much his whole life. Id. at 1. His
mother and sister both live in Milwaukee, and he has good
relationships with both. He is single, but has two children
from a prior relationship who live with their mother in a
nearby town. Id. at 1. The report indicates that the
defendant has been unemployed since February 2016-over a year
before the events of June 30, 2017-and that he'd been
supporting himself with savings (which had run out) and with
the help of friends and family. He had worked as a welder for
some two years before being laid off in 2016, and he has
degrees in welding and HVAC. Id. The report
indicated that the defendant's sister believed he'd
been depressed lately, and that the defendant himself
reported a history of gambling. Id. While the
defendant had a history of drinking and marijuana use, it
appeared that he'd stopped both as of the time of the
report. Id. at 2. The pretrial services department
recommended that Judge Joseph release the defendant but
require him to be on home detention with restricted travel
and other conditions. Id. at 5.
court listened to the recording of the July 23, 2019 hearing
before Judge Joseph, which is where it obtained some of the
facts about what the parties argued and how Judge Joseph
ruled. At the hearing, the government asked the court to deny
the defendant's motion for bond. Dkt. No. 21 at 1. The
prosecutor argued that the defendant had a significant
criminal record, but more to the point, that he had absconded
from supervision when the case had been pending in state
court. He argued that the defendant had demonstrated that he
was not likely to follow the rules of supervision.
Id. He also pointed out that the parties had filed a
plea agreement which exposed the defendant to at least thirty
months in federal prison. The prosecutor noted that if the
defendant's bond hearing had taken place just one week
later, before the district court, the defendant would have
been required to prove by clear and convincing evidence that
he did not pose a flight risk or a danger to the community.
counsel emphasized several of the points he'd raised in
the motion for bond. He acknowledged that the defendant had
been missing from state supervision for a long time, and told
Judge Joseph that during that time, the defendant had been
living with a friend and doing odd jobs. (This is also what
the defendant told the pretrial services officer.) Counsel
explained that in April 2019, the defendant had been involved
in a car accident. Counsel opined that the defendant knew,
when the accident occurred, that there was a warrant out for
his arrest, and that he could have fled the scene of the
accident to avoid being arrested. Counsel argued, however,
that the defendant opted to stay at the scene and “face
the music.” Counsel opined that the government was