United States District Court, D. Nebraska
R. Zwart, United States Magistrate Judge
defendant is charged with assaulting and attempting to
assault a United States Deputy Marshal, a federal law
enforcement officer, with physical contact in an intent to
impede, intimidate, and interfere with the deputy marshal
while he was engaged in his official duties. (Filing No.
1). On the government's motion, the court held a
detention hearing under the Bail Reform Act, 18 U.S.C. §
3142(f). The court concludes the defendant must be detained
the Bail Reform Act of 1984, 18 U.S.C.§3142, if a
judicial officer finds by clear and convincing evidence that
“no condition or combination of conditions will
reasonably assure the appearance of the person as required
and the safety of any other person and the community, such
judicial officer shall order the detention of the [defendant]
before trial.” 18 U.S.C. § 3142(e). Thus, even
absent a flight risk, danger to the community alone is a
sufficient reason to order pretrial detention. United
States v. Salerno, 481 U.S. 739, 755 (1987); see also,
United States v. Sazenski, 806 F.2d 846, 848 (8th
Cir. 1986). Where the judicial officer's justification
for detention is premised upon the safety of the community,
the decision must be supported by “clear and convincing
evidence.” 18 U.S.C. § 3142(f). Where the
justification for detention is the judicial officer's
finding that no set of conditions will assure the
defendant's appearance in court, such a decision must be
supported by a preponderance of the evidence. United
States v. Kisling, 334 F.3d 734, 735 (8th Cir. 2003).
has a history of assaultive behavior (third degree assault in
1996 and 2005), and threatening harm to others (terroristic
threats in 2010 and attempting to influence a federal
official by threat in 2015). The 2015 case, U.S. v.
Mockelman, 4:15-cr-03023-RGK-CRZ, was also filed in the
United States District Court for the District of Nebraska,
and it presents a long history for the court's
consideration on the government's motion to detain. Both
parties asked the undersigned magistrate judge to consider
the record in the 2015 criminal litigation, for the purposes
of determining the issue of detention on the above-captioned
pleaded guilty in the 2015 case. During his change of plea
hearing, Defendant admitted that after becoming angry with
the Department of Transportation in early 2015, he placed two
phone calls to that agency's Chicago call center,
threatening “I might drive back to Chicago and kill you
all, ” and “Every last one of you is dead.
It's war.” He also placed a call to the DOT office
in Lincoln, Nebraska, threatening “I'm buying a gun
and it's war. Every[one] in the country that wears a
badge is . . . dead. . . . You all need to . . . die.”
(4:15-cr-03023-RGK-CRZ, (Filing No. 28, at CM/ECF p.
13). Defendant was sentenced to nine months in prison
followed by a one-year term of supervised release.
(4:15-cr-03023-RGK-CRZ, (Filing No. 43). Defendant
was afforded 60 days to self-surrender, but that
self-surrender deadline was cut short when he threatened to
use automatic weapons to kill employees of Stevens Transport
Company and the FBI. (4:15-cr-03023-RGK-CRZ, (Filing No.
his release from prison, and while on supervision, Defendant
was stopped for a traffic violation in Massachusetts. He made
four threatening phone calls to the Uxbridge District
Courthouse in Massachusetts, commenting “lazy Trooper
was lucky that I didn't have a gun on me then” and
he then threatened to beat police with a baseball bat and/or
shoot them with a gun. (4:15-cr-03023-RGK-CRZ, Filing Nos.
50 & 80). On September 25, 2017,
Defendant was sentenced to time served followed by supervised
release for a term of 10 months. (4:15-cr-03023-RGK-CRZ,
Filing Nos. 80 & 82).
also violated this term of supervised release. A petition
alleging supervised released violations was filed on December
8, 2017, alleging Defendant called the Environmental Services
department of Douglas County, Nebraska and threatened to
“blow up” that county over a zoning question.
(4:15-cr-03023-RGK-CRZ, Filing No. 85). The arrest
warrant on the December 8, 2017 petition was executed on
December 13, 2017. (4:15-cr-03023-RGK-CRZ, Filing No.
the initial appearance and detention hearing held on the
December 8, 2017 petition, the undersigned magistrate judge
received audio recordings of voice mails Defendant had
recently left with his supervising officer.
(4:15-cr-03023-RGK-CRZ, Filing Nos. 104,
105, & 106). These recordings were
highly racist, sexist, and anti-government, with Defendant
stating three Douglas County officers who contacted Defendant
in response to a complaint should have been “shot and
executed on the spot.” (4:15-cr-03023-RGK-CRZ,
Filing No. 105). Acting through his counsel,
Defendant requested a psychological evaluation by the Bureau
of Prisons (BOP). (4:15-cr-03023-RGK-CRZ, Filing No.
101). That motion was granted.
court received the report on the psychological evaluation on
March 12, 2018. The evaluator concluded Mockelman has
Intermittent Explosive Disorder, which “manifests as
discrete episodes of losing control of aggressive impulses,
which can result in serious assault or the destruction of
property, but can also be limited to significant verbal
outbursts.” (4:15-cr-03023-RGK-CRZ, Filing No. 108,
at CM/ECF p. 15). The evaluator explained that while
Mockelman poses “a relatively low probability of actual
violence, ” “[t]his does not mean threats made by
Mr. Mockelman should not be taken seriously . . . .”
(4:15-cr-03023-RGK-CRZ, Filing No. 108, at CM/ECF pp. 27-28).
He tends to “ruminate on . . . issues until his
discomfort escalates to the point he engages in aggressive
outbursts, recently verbal but also physical in the
past.” (4:15-cr-03023-RGK-CRZ, Filing No. 108, at
CM/ECF p. 26).
sentencing hearing on the December 8, 2017 petition was held
on May 24, 2018. The evening before, Defendant left a message
with his supervising officer stating he would not be present
at sentencing, and if the marshals attempted to arrest him,
he would resist arrest and they would have to “put a
bullet through” his head. (4:15-cr-03023-RGK-CRZ,
Filing No. 116, audio file, 00:40-3:50). During the
hearing, Judge Kopf expressed his concerns that
Defendant's behaviors were, in fact, escalating.
Mr. Mockelman presents, in an odd sort of way, in that he is
older, and while these explosive disorders tend to begin
sometimes in older people, they also begin to wane, and
it's not waning. And the psychologist said you cannot be
sure that the actions of someone like Mr. Mockelman will not
be -- or rather the -- I'll call them rants by Mr.
Mockelman -- will not be followed by action. What is
particularly concerning to me is this telephone call to the
Probation Office yesterday. In that, Mr. Mockelman said --
and I'm paraphrasing -- “If the marshals come for
me with some machine guns, ” I think he said,
“they'll have to put a bullet through my
head.” That is an elevation. That sort of talk is,
number one, extremely concerning. And if I remember
correctly, the nature of it is, in a sense, more extreme than
we've heard before. So the limited amount of time that I
can incapacitate him is uppermost in my mind because I
don't want to see him commit death-by-cop, which is an
effect if he's not careful with people -- with law
(4:15-cr-03023-RGK-CRZ, Filing No. 134, at CM/ECF p. 13-14).
Judge Kopf concluded, “Mr. Mockelman, I think
you're a threat to yourself.”
(4:15-cr-03023-RGK-CRZ, Filing No. 134, at CM/ECF p.
17). Defendant was sentenced to 12 months in prison,
with credit for time served while detained pending
sentencing. (4:15-cr-03023-RGK-CRZ, Filing No. 120).
That sentence expires on December 12, 2018. At the time of
his arrest in this case, Defendant was living at a halfway
house in Omaha, Nebraska, with the BOP permitting Defendant
to leave the facility as needed. Defendant had applied for
jobs, and he was offered employment, but he was not able to
begin because he was arrested on the above-captioned case.
this backdrop, Defendant opposes the government's motion
for detention, arguing he is neither a flight risk nor a
danger to the community. Defense counsel argued the BOP
psychological evaluation on March 12, 2018 stated that
despite Defendant's outbursts and threats, he poses no
danger to the community. (Filing No. 12, audio file,
9:45-12:10). Defense counsel argues the public's
perception of whether Defendant's threats pose a danger