united states district court for the western district … de… · notice of appeal and motion to...

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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

No. 3:16MJ137; 146

UNITED STATES OF AMERICA

vs.

REUBEN DEHAAN

NOTICE OF APPEAL AND MOTION TO RESCIND ORDER OF DETENTION

NOW COMES defendant, Reuben DeHaan, through counsel, pursuant to 18 U.S.C. §

3145(b), and appeals the detention order issued on by United States Magistrate Judge David

Keesler on April 26, 2016. In support of this motion, the defense shows the Court the following:

SUMMARY OF ARGUMENT

Reuben DeHaan was born in a rainforest, the son of missionaries who raised him with the

ability to live sustainably. While his upbringing and lifestyle is unusual, his life, his actions, and

this offense pose no threat of harm to the public. Further, Mr. DeHaan’s family, friends, and

significant ties to the community, combined with his compliance with law enforcement at and

following his arrest, strongly suggest no risk of non-appearance at trial.

While the prosecution emphasized that items collected from the search of Mr. DeHaan’s

residence justified detention, those items are insufficient to establish any serious risk of flight or

threat of harm to the community requiring detention.

BACKGROUND

Mr. DeHaan is a father of two young children, ages two and four, and has been in a long

Case 3:16-mj-00137-DSC Document 13 Filed 05/10/16 of 14

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term relationship with his common law wife and the mother of his children. He has lived in

Kings Mountain, North Carolina, for the last 16 years. His mother and father live next door; his

two brothers live in the Charlotte area. Mr. DeHaan practices naturopathic medicine and has

developed a significant following in the area. He has no criminal history and no history of

violent or dangerous behavior.

On April 20, 2016, Mr. DeHaan was charged by criminal complaint. On April 21, 2015,

Mr. DeHaan was arrested after dropping his son off at preschool. He has since been detained in

the Mecklenburg County Jail.

The criminal complaint alleges that Mr. DeHaan willfully failed to file his income taxes

in violation of various sections of 26 U.S.C. §§ 7212 and 7201. Upon Mr. DeHaan’s arrest, law

enforcement executed a search warrant seeking records and financial documents. During his

arrest, Mr. DeHaan was fully compliant with law enforcement, providing them information

concerning passwords and keys to give them access to his property. Firearms discovered in the

course of the search were believed to be unregistered, which gave rise to subsequent charges in

violation of 26 U.S.C. § 5861.

On April 26, 2016, Magistrate Judge Keesler conducted a hearing on the government’s

motion for detention. The pretrial services report presented at the hearing recommended

detention. The defense argued for release, while also noting no opposition to additional

conditions. The government proffered arguments that Mr. DeHaan posed a flight risk. After

hearing evidence and argument, Magistrate Judge Keesler ordered that Mr. DeHaan be detained.

ARGUMENT

A. The 18 U.S.C. § 3142(g) Factors Favor Pre-Trial Release.


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“In our society liberty is the norm, and detention prior to trial or without trial is the

carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987) (reviewing the

Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq.). 18 U.S.C. § 3142(b) requires a judicial

official to order pretrial release of a defendant on “personal recognizance” or upon the execution

of an “unsecured appearance bond” in an amount specified by the court, unless the judicial

officer determines that no conditions can be set under the provisions of § 3142(b) which can

“reasonably assure” the defendant’s appearance at a court proceeding or the “the safety of any

other person or the community.” 18 U.S.C. § 3142(b) and (c). The judicial officer must impose

the lease restrictive conditions or combination of conditions. See 18 U.S.C. § 3142(c)(1)(B).

Absent a statutory presumption of detention, release is favored. See United States v. Byrd,

969 F.2d 106, 109 (5th Cir. 1992) (“There can be no doubt that this Act clearly favors non

detention.”); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991) (“Only in rare

circumstances should release be denied, and doubts regarding the propriety of release should be

resolved in the defendant’s favor.”); United States v. Xulum, 84 F.3d 441, 443 (D.C. Cir. 1996)

(per curiam) (“Section 3142 speaks only of conditions that will “reasonably” assure appearance,

not guarantee it.”). Accordingly, a court should always “bear in mind that it is only a ‘limited

group of offenders’ who should be denied bail pending trial.” United States v. Shakur, 817 F.2d

189, 195 (2d Cir.1987) (quoting S. Rep. No. 98–225 at 7, reprinted in 1984 U.S.C.C.A.N. 3182,

3189).

A district court’s review of a magistrate judge’s pretrial detention decision under 18

U.S.C. § 3145(b) is de novo, meaning that the magistrate judge’s decision is not entitled to

deference and the district court must make an independent determination of whether pretrial


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detention or conditions of release are appropriate. See United States v. Stewart, No. 01-4537, 19

Fed. Appx. 46, at *48 (4th Cir. Sept. 6, 2001) (citing United States v. Rueben, 974 F.2d 580, 585-

86 (5th Cir. 1992)); United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985); United States v.

Leon, 766 F.2d 77, 80 (2d Cir. 1985).

When the government seeks pretrial detention of an individual on the ground that he

poses a risk of flight, the standard it must satisfy is a “preponderance of the evidence.” United

States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir.1987). As the D.C. Circuit Court of Appeals

emphasized: “That preponderance must, of course, go to the ultimate issue: that no combination

of conditions—either those set out in the Bail Reform Act itself or any others that the magistrate

or judge might find useful—can ‘reasonably’ assure the court that the defendant will appear for

trial.” Xulum, 84 F.3d at 442.

In determining whether there are conditions of release that will reasonably assure the

appearance of the person as required and the safety of any other person and the community, 18

U.S.C. § 3142(g) requires the Court to consider:

(1) The nature and circumstances of the offense charged;

(2) The weight of the evidence against the person;

(3) The history and the characteristics of the person, including inter alia the

defendant’s character, employment, criminal history, and record concerning

appearance at court proceedings; and

(4) The nature and seriousness of the danger to any person of the community that would

be posed by the person’s release.

As set forth in greater detail below, these factors fail to support the Magistrate Judge’s

determination that no condition or combination of conditions can reasonably assure Mr.

DeHaan’s appearance. To the extent Mr. DeHaan is deemed to be a flight risk, this Court can set


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conditions to assure his appearance at trial. This Court, therefore, should rescind the Magistrate

Judge’s order of detention and set appropriate conditions of release.

(1) Nature and Circumstances of the Offense.

Mr. DeHaan is a practitioner of naturopathic medicine. According to the complaint,

3:16mj137, Mr. DeHaan has failed to file income taxes, reporting to a revenue agent that his

status as minister and natural healer with the Native American Church of Nemenhah renders his

income non-taxable. The government deems this claim frivolous and reports that the income in

question totals approximately $2,700,000 over a period of seven years.

According to the complaint, Mr. DeHaan communicated with IRS agents during the last

three years and submitted filings in efforts to communicate his position. The complaint suggests

that agents communicated with Mr. DeHaan in an undercover capacity during their investigation.

No facts asserted in the complaint nor at the hearing suggest these communications suggest a risk

of flight or dangerousness.

Upon Mr. DeHaan’s arrest, he provided arresting officers with information to aid in the

search of his residence and personal property. Mr. DeHaan provided information concerning

passwords and keys to assist law enforcement officers. By all accounts, Mr. DeHaan was

cooperate and compliant.

During this search, law enforcement uncovered firearms that they believed to be

unregistered in the National Firearms Transfer Registry, giving rise to the criminal complaint at

3::16mj146. To provide full context for the Court: Mr. DeHaan had a room connected to his

home that contained in excess of 70 lawfully owned firearms that law enforcement left in the


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home.1

The pretrial services report raises concerns about Mr. DeHaan’s possession of what

appeared to be a liquor still. While the still did not appear to be functioning to make liquor, a jar

of liquor spirits was present. Testimony proffered at the hearing indicate that the still and spirits

present were used for the distillation of essential oils and medicines in Mr. DeHaan’s practice.

(2) The Evidence Against Mr. DeHaan.

Unsurprisingly, the government contends its evidence is strong. The defense has not yet

received discovery and is not in a position to make a meaningful response. That said, it is

fundamental that Mr. DeHaan is presumed innocent. A corollary of that principle is that the

weight of the evidence is the least important of the various factors. See United States v.

Motamedi, 767 F.2d 1403, 1408 (9th Cir. 1985). While the statute permits the court to consider

the nature of the offense and the evidence of guilt, the statute neither requires nor permits a

pretrial determination that the person is guilty. Id. To the extent the government is arguing for

detention based on the strength of its case, this factor should be given little weight.

(3) Mr. DeHaan’s History and Characteristics.

Mr. DeHaan has no criminal record and no history of non-appearance. Further, there is no

indication of chemical or substance abuse in his past. These facts alone put him ahead of most

defendants, including many who have been released on bond in this district. But there are many

more facts which demonstrate the depth of his ties to this district and weigh in favor of release.

Mr. DeHaan

Mr. DeHaan was born to missionaries in the rainforests of Columbia, South America

1 The morning of the detention hearing, the Government raised concerns about one additional weapon that,

unbeknownst to Mr. DeHaan, had been reported stolen several years earlier. Mr. DeHaan arranged for his family to

produce that weapon to law enforcement promptly after the hearing.


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while his parents were working in agricultural, community development, and educational

missions. (See letter from Roger DeHaan, attached as Exhibit A). Mr. DeHaan became a

naturalized citizen when he was ten years old and has resided in the United States since that time.

Mr. DeHaan’s father grew up on an organic farm and was educated as a veterinarian and

theologian. Consequently, Mr. DeHaan has been exposed to farming, animals, disease, and

theology for nearly his entire life. This exposure led Mr. DeHaan to naturopathic medicine.

Mr. DeHaan moved to his current residence in Kings Mountain over 16 years ago. He

and his common law wife are devoted parents to two children. Mr. DeHaan’s father and mother

live next door and his two brother both live in the Charlotte area. Present at the detention hearing

were over twenty friends, family members, and patients to demonstrate assurance to the Court

that Mr. DeHaan had strong ties to the community and that he was known as both peaceful and

responsible. Many of these individuals have subsequently written letters to the Court, which are

attached hereto as Exhibit B. These letters uniformly describe a peaceful and gentle individual

who is deeply ingrained in the community of the Western District of North Carolina.

(4) Mr. DeHaan Poses No Risk of Flight.

Mr. DeHaan demonstrates significant ties to his home and community and has never

failed to appear for any court date. The government raises a risk of flight based on several

documents found in Mr. DeHaan’s home.

The government contends that a “World Passport” seized by law enforcement in the

name of Reuben DeHaan poses a risk of flight.2 When confronted with concerns about actual

government-issued passports, courts regularly impose restrictions and limitations on their use.

2 This document was submitted as Government Exhibit 20 at Mr. DeHaan’s detention hearing before Magistrate

Keesler.


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Here, as a preliminary matter, it is unclear where a “World Passport” would currently entitle an

individual to travel. There is no evidence that Mr. DeHaan has ever attempted to use this “World

Passport” as a valid form of identification. Requiring the surrender of this document, that is

presently in the possession of law enforcement, would eliminate any concern that this document

would assist in any risk of flight.

Additionally, the government introduced two documents bearing the picture of Mr.

DeHaan, yet in the name of Mateos Aragon.3 The government argues that possession of these

documents suggest a risk of flight. Courts have considered presentation of false identification as

a factor in assessing risk of flight. See United States v. Donagal, No. 14-285, 2014 U.S. Dist.

LEXIS 125287, at *11 (N.D. Cal. Sep. 8, 2014) (“The possibility of flight is bolstered by the

government’s report that Defendant presented himself under a false identity … and had

fraudulent identification documents to support that identity.”) However, the facts in the instant

case do not indicate that Mr. DeHaan has utilized such documents for anything more than

novelty. Indeed, the purpose and potential or actual use of both documents is highly

questionable. Neither document is recognized as a valid form of identification for travel in the

United States. According to Mr. DeHaan’s wife, these documents are pure novelty. She has

never seen Mr. DeHaan use these identification cards for a legitimate purpose and reports that

the source of the novelty is that Mr. DeHaan utilized this name as a gaming profile on an online

video game system.4 Even if these documents were useable for any travel or identification

purposes, they are expired. In short, these documents are not evidence that Mr. DeHaan has any

present intent to flee.

3 These documents were submitted as Government Exhibit 19 and 22 at Mr. DeHaan’s detention hearing before

Magistrate Keesler. 4 See Letter of Ginger DeHaan attached hereto as Exhibit C.


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The government also presented evidence that Mr. DeHaan had a bank account in Costa

Rica to support a finding that Mr. DeHaan is a flight risk.5 The bank transaction slip presented is

dated July 26, 2005 and the bank debit cards indicate an expiration date of July 2015. The

evidence presented only suggest that eleven years ago, Mr. DeHaan had a bank account with

Bank of Costa Rica. There is no evidence that this account still exists or that Mr. DeHaan has

access to such an account. Mr. Dehaan reported in his pretrial services that his most recent travel

to Costa Rica was approximately 5 to six years ago.

Mr. Dehaan has no ability nor demonstrated desire to leave the country. Mr. DeHaan’s

passport has expired. No facts exist to suggest he has either a desire or an ability to flee.

(5) Mr. DeHaan Poses No Risk of Dangerousness.

The government contends that Mr. DeHaan’s possession of weapons infers a risk of

dangerousness. However, courts have held that dangerousness cannot be inferred from

possession of firearms permitted by law. See United States v. Robinson, 814 F.3d 201 (4th Cir.

W. Va. 2016). In Robinson, the district court held that the defendant openly carrying a firearm

was insufficient to establish a finding of dangerousness to support a Terry pat down.

A large number of weapons were found on Mr. DeHaan’s property. While three items

seized are identified in the offense conduct, the other weapons were lawfully possessed and

should not be a basis for the Court to infer dangerousness. Further, no evidence was presented to

suggest that Mr. DeHaan used any firearms for violence or threats of violence. Mr. DeHaan has

no history of violence—or threats of violence—of any sort.

The government further presented evidence of a cellar under Mr. DeHaan’s home to

5 The government introduced copies of bank debit cards from Bank of Costa Rica as Government Exhibit 27 issued

to Reuben DeHaan.


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suggest that the cellar was some sort of bunker, capable of enduring a “siege” by the

government. The government again strays too far with its assumptions. The cellar in question no

“bunker” but rather fully consistent with Mr. DeHaan’s commitment to subsistence and

sustainable living (which is further supported by his hydroponic greenhouse of fruits and

vegetables and self-sustaining tilapia farm).

Further, Mr. DeHaan’s actions—for example, his interactions with revenue agents and his

cooperation with law enforcement during his arrest—wholly belie the government’s speculation

that Mr. DeHaan might attempt to cloister himself in his cellar and refuse to meet his obligations

to attend to the instant criminal proceedings. Indeed, the totality of circumstances present in Mr.

DeHaan’s life—including, but not limited to, his family obligations, ties in the community, and

work—simply do not comport with a specious theory that he would seek relief from detention in

order to detain himself in a cellar.

B. The Court Can Fashion Conditions to Assuage Any Concerns That May Exist.

(1) Mr. DeHaan’s Expired Passport.

Undersigned counsel is prepared to surrender Mr. DeHaan’s expired United States

passport to the Court if the Court requires it as a condition of release. Numerous courts have

recognized this step as sufficient to address the problem of risk of flight to another country. See,

e.g., Xulum, 84 F.3d at 443 (“On a more practical level, the government has taken away all his

passports and travel documents, so it is unlikely he could go far even if he wished to.”); United

States v. DeBeir, 16 F.Supp.2d 592, 595 (D. Md. 1998) (“He has surrendered his passport to the

Court, and the Belgium Embassy in the United States has agreed not to issue him another

passport.”); United States v. Awadallah, 173 F.Supp.2d 186 (S.D.N.Y. 2001) (Jordanian citizen


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with family living in Jordan who was charged with lying to the grand jury investigating

September 11 attacks released on conditions including cash bond and surrender of passports);

United States v. Say, 233 F.Supp.2d 221, 226 (D. Mass. 2002) (finding risk of flight mitigated

because “by ordering [defendant] to surrender his passport, he cannot get to Vietnam.”).

(2) All Firearms Have Been Removed From Mr. DeHaan’s Residence.

In anticipation of Mr. DeHaan’s detention hearing, all firearms were removed from his

residence. The Court could set an additional condition requiring the satisfactory inspection of

his residence—including, of course, his cellar—before permitting his release.

(3) The Court May Consider Additional Conditions of Release to Satisfy

Concerns.

18 U.S.C. §3142(c) permits release on conditions including that the defendant:

(A) remain in the custody of a designated person, who agrees to

supervise him and to report any violation of a release condition to

the court, if the designated person is able reasonably to assure the

judicial officer that the person will appear as required and will not

pose a danger to the safety of any other person or the community;

(B) maintain employment, or, if unemployed, actively seek

employment;

(C) maintain or commence an educational program;

(D) abide by specified restrictions on his personal associations,

place of abode, or travel;

(E) avoid all contact with an alleged victim of the crime and with a

potential witness who may testify concerning the offense;

(F) report on a regular basis to a designated law enforcement

agency, pretrial services agency, or other agency;

(G) comply with a specified curfew;

(H) refrain from possessing a firearm, destructive device, or other


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dangerous weapon;

(I) refrain from excessive use of alcohol, or any use of a narcotic

drug or other controlled substance, as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802), without a prescription

by a licensed medical practitioner;

(J) undergo available medical or psychiatric treatment, including

treatment for drug or alcohol dependency, and remain in a

specified institution if required for that purpose;

(K) execute an agreement to forfeit upon failing to appear as

required, such designated property, including money, as is

reasonably necessary to assure the appearance of the person as

required, and post with the court such indicia of ownership of the

property or such percentage of the money as the judicial officer

may specify;

(L) execute a bail bond with solvent sureties in such amount as is

reasonably necessary to assure the appearance of the person as

required;

(M) return to custody for specified hours following release for

employment, schooling, or other limited purposes; and

(N) satisfy any other condition that is reasonably necessary to

assure the appearance of the person as required and to assure the

safety of any other person and the community.

Mr. DeHaan is willing and able to comply with any condition or combination of

conditions set forth by this Court.

WHEREFORE the defendant, through undersigned counsel, respectfully requests the to

rescind the order of detention and set conditions for Mr. DeHaan’s release.


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Dated: May 10, 2016

Respectfully submitted,

/s/ C. Melissa Owen

C. Melissa Owen

N.C. Bar No. 29803

[email protected]

TIN FULTON WALKER & OWEN PLLC

301 East Park Avenue

Charlotte, NC 28203

T: 704-338-1220

F: 704-338-1312

Counsel for Reuben DeHaan


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that s/he has served the foregoing under seal pleading

with the Clerk of Court, who will send notification of such filing to counsel for the government:

Mike Savage

[email protected]

Dated: May 10, 2015

/s/ C. Melissa Owen


mailto:[email protected]

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