United States District Court, D. Nebraska
MEMORANDUM AND ORDER
SMITH CAMP SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Appeal of the Magistrate
Judge's Order, ECF No. 98, filed by Defendant Orlando J.
Lasley (“Defendant”). The Defendant objects to
the Magistrate Judge's Order of April 26, 2019, ECF No.
19, denying the Defendant's Motion to Review Detention
and Request for Hearing, ECF No. 93.
Defendant was charged on July 18, 2017, with assault causing
serious bodily injury in violation of 18 U.S.C. §
113(a)(6) and § 1153 (Count I) and assault of an
intimate or dating partner, causing substantial bodily
injury, in violation of 18 U.S.C. § 113(a)(7) and §
1153 (Count II). Indictment, ECF No. 1. On July 26, 2017, he
was released on conditions, ECF No. 11. On September 11,
2017, a Petition for Action on Conditions of Pretrial Release
was filed, ECF No. 35, alleging violations of the
Defendant's conditions of release, including his failure
to communicate with his Pretrial Services Officer as
directed, his failure to maintain or seek employment, and his
unauthorized change of residence. The officer noted that
efforts to communicate with the Defendant had been
unsuccessful since August 18, 2017, and his whereabouts were
unknown. Id. A warrant was issued for the
Defendant's arrest. ECF No. 36.
Defendant appeared for trial on September 12, 2017, and he
was taken into custody on that date pursuant to the warrant
for his arrest. A Pretrial Services Violations Report was
filed on September 13, 2017, ECF No. 39, detailing the
Defendant's non-compliance with the conditions of his
release and recommending that he remain in custody pending
returned a verdict of guilty on both Counts on September 15,
2017, and the Defendant was sentenced on December 11, 2017,
to a term of 33 months custody on each Count, to be served
concurrently, followed by three years of supervised release
on each Count, also to be served concurrently. He was
remanded to the Bureau of Prisons at the time of sentencing.
Defendant appealed, and on February 27, 2019, the U.S. Court
of Appeals for the Eighth Circuit reversed and remanded,
finding that this Court's response to a jury question
effectively amended the Indictment by allowing the jury to
consider evidence of injuries suffered by the victim that
were not specified in the Indictment. ECF No. 87, 88.
trial is now scheduled to begin on June 4, 2019, and the
Defendant seeks release from custody. The Magistrate Judge
denied his request for release from detention, concluding
that there were no new circumstances or information to
consider relating to Defendant's risk of non-appearance
or danger to the community. Magistrate Judge Order, ECF No.
97 at Page ID 862, citing 18 U.S.C. § 3142(f)(2). She
based her decision on “Defendant's previous
violations of pretrial release, as well as the nature of his
charges, past convictions for crimes of violence, and record
of previous failures to appear[.]” Id.
additional evidence is received on review, the district judge
reviews an order of release or detention de novo on
the record made before the magistrate judge.” NECrimR
46.2(c); see also 18 U.S.C. § 3145(b).
additional evidence has been received, and the Court reviews
the Magistrate Judge's Order de novo on the record,
including the record of the trial proceedings.
is appropriate where the Government proves by clear and
convincing evidence that a defendant is a danger to others or
to the community, or where the Government proves by a
preponderance of the evidence that a defendant is a risk of
flight and that, in either case, there are no conditions or
combination of conditions that will assure the safety of the
community or the defendant's appearance at future court
proceedings. 18 U.S.C. § 3142(e)(1). In determining
whether detention is appropriate, the Court must consider the
(1) the nature and circumstances of the offense charged,
including whether the offense is a crime of violence, a
violation of section 1591, a Federal crime of terrorism, or
involves a minor victim or a controlled ...