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United States v. McGhee

United States District Court, S.D. Indiana, Indianapolis Division

April 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID MCGHEE, Defendant.

          ENTRY ON MOTION FOR REVOCATION OF RELEASE ORDER

          Hon. William T. Lawrence, Judge

         Before the Court is the Government's motion for revocation of release order (Dkt. No. 34) and supplement to that motion (Dkt. No. 84). The Court, being duly advised, GRANTS the motion for the reasons set forth below.

         I. STANDARD

         18 U.S.C. § 3145(a)(1) provides for district court review of a magistrate judge's release order. Section 3145(a) states in relevant part:

If a person is ordered released by a magistrate judge, or by a person other than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court, the attorney for the Government may file, with the court having original jurisdiction over the offense, a motion for revocation of the order or amendment of the conditions of release[.] The motion shall be determined promptly.

         The district court must conduct a de novo review and need not defer to the magistrate judge's findings. The Court may review the transcript of the proceedings before the magistrate judge or it may hold a new hearing. United States v. Torres, 929 F.2d 291, 292 (7th Cir. 1991). In this cause, the Court held a hearing on April 19, 2017.

         II. BACKGROUND

         A. The Charged Offenses

         On March 31, 2017, David McGhee and three co-defendants were charged in a nine-count criminal complaint. McGhee was charged in three of the counts. Count Seven charges McGhee with conspiring with his three co-defendants to affect commerce by robbery in violation of the Hobbs act, 18 U.S.C. § 1951(a) stemming from a completed armed robbery that occurred in Ohio. Count Eight charges McGhee with conspiring to use a firearm in furtherance of a crime of violence (robbery) in violation of 18 U.S.C. § 924(o). Alleged as overt acts are the casing of a retail store in Richmond, Indiana-allegedly done by McGhee-and the actual armed robbery in Ohio. It involves the use of a shortened, military style, semi-automatic rifle of a Verizon retail store in Troy, Ohio. Count Nine charges McGhee with transporting a firearm, a shortened, military style, semi-automatic rifle and a semi-automatic pistol, across state lines to commit a felony (robbery), in violation of 18 U.S.C. § 924(b). It involves the transportation of the firearms from Indianapolis, Indiana to Troy, Ohio for the purposes of committing the armed robbery of the Verizon retail store. McGhee was indicted on the same charges on April 12, 2017.

         B. Hearings

         McGhee appeared on April 7, 2017, for a detention hearing before the Magistrate Judge. The Government moved for detention, arguing that detention was appropriate in this case given (1) the risk that McGhee would fail to appear at future court hearings, and (2) the danger McGhee poses to the community. See 18 U.S.C. § 3142(e), (f)(1)(e), (f)(2)(A), and (f)(2)(B). The Government argued that although there was no presumption in this case, it was only because the substantive crime that forms the basis for the two conspiracies was committed just across the border in Ohio. According to the Government, had the crime been committed in Richmond, as the Government argues that the evidence seems to suggest was the original plan, McGhee would be charged with the substantive 924(c) count, which would carry a presumption pursuant to 18 U.S.C. § 3142(e)(3)(B). The Probation office recommended that McGhee be detained based on the nature of and violence of the charged offense as well as McGhee's failure to appear related to prior criminal charges.

         At the detention hearing, the Government admitted twenty-five exhibits: surveillance photographs showing varying combinations of the defendants brandishing firearms and physically accosting store employees in the four robberies at issue in the criminal complaint; photographs of the defendants and their clothing on the night of their arrest; and photographs of the assault rifle and robbery proceeds of the Troy, Ohio robbery. McGhee is not accused of entering the store in Troy or of participating in any way in the other three robberies. The Government also indicated that the pistol and assault rifle were in McGhee's possession at the time of arrest and that he had lied to the FBI about his background in an effort to receive favorable treatment from the FBI.

         McGhee appeared with counsel and proffered evidence concerning his background and family ties. The Magistrate Judge ordered his release on conditions. The Government orally moved for a revocation of McGhee's release order and a stay of his release. The Government then filed the instant motion for revocation of the release order (Dot. No. 34).

         This Court held a hearing on the Government's motion on April 19, 2017. The Court admitted additional exhibits, including the transcript of the detention hearing held by the Magistrate Judge. The Government argued that there are no conditions or combination of ...


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