United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
GREN SCHOLER UNITED STATES DISTRICT JUDGE.
Order addresses Defendant John Green's Objections to
Restrictions on His Bond Ordered by Magistrate Court [ECF No.
44]. For the reasons that follow, the Court overrules
Defendant's objections, and affirms the United States
Magistrate Judge's November 28, 2018 Order.
criminal action, the United States alleges that Defendant
John Green ("Defendant") entered into a conspiracy
to defraud the United States of tax revenue by, among other
things, filing false IRS forms, depositing proceeds from the
sale of gold coins into Defendant's Interest on Lawyer
Trust Accounts ("IOLTAs"), and using the funds in
the IOLTAs to pay for his clients' personal expenses.
See ECF No. 1 ("Indictment")
¶¶2, 13, 15, 17, 21. The case is set for trial on
January 6, 2020. See ECF No. 105.
made his Initial Appearance before United States Magistrate
Judge Rebecca Rutherford (the "Magistrate Judge")
on August 7, 2018, see ECF No. 13 ("Minute
Entry"), and was released on his own recognizance
subject to various conditions, including that Defendant was
"not [to] possess a firearm, destructive device, or
other weapon" (the "firearm restraint"). ECF
No. 14 ("Order Setting Conditions of Release")
§ 7(k). The Magistrate Judge clearly informed Defendant
regarding this condition at his Initial Appearance.
See Recording of Initial Appearance
("Rec") 2:14:04 to 2:14:27. Defendant accepted this
condition and did not object, but asked whether he
"ha[d] some time to get home to have [the firearms]
removed from the house." Id. at 2:14:39 to
2:14:52. The Magistrate Judge approved Defendant's
request for extra time and directed him to review the Order
Setting Conditions of Release, see Id. at 2:15:17 to
2:15:48, which Defendant signed, acknowledging that he
understood and "agree[d] to follow" the conditions
as stated. Id. at 2:16:56 to 2:17:17; Order Setting
Conditions of Release 3.
objected to this condition for the first time in a
handwritten Supplement to Bond Motion (the
"Supplement") filed 85 days later, on October 31,
2018, See ECF No. 35 ("Supp. to Bond
Mot."). In his Supplement, Defendant "requested]
the right to have a weapon in his home" to defend his
home against "dangerous . . . animals" that appear
"in the winter." Id. at 1. At the hearing,
Defendant was not prepared to address his objection, but
clarified that he was concerned "about bears." ECF
No. 42 ("Joint Mot. to Modify Conditions of Release
Hr'g Tr.") at 29:2-8, 29:17-18. Defendant argued
that he was not violent, and the Government was not opposed
to a compromise on the issue. See Id. at 29:22-23,
30:8-14. The Magistrate Judge asked for the opinion of the
pretrial services, and Defendant represented to the Court
that they were not opposed. See Id. at 30:17-31:1.
The Magistrate Judge then noted that the issue was not ripe
and invited supplemental filings from the parties. See
Id. at 31:9-l 9. Defendant did not file any documents in
support of his Supplement. After allowing the parties almost
a month to further brief the issue, and having received no
response from either party, the Magistrate Judge issued an
order denying the Supplement, See ECF No. 41
("Order Denying Supplement") at 2-3.
filed his Objections on December 11, 2018, raising three
arguments: (1) that the Magistrate Judge abused her
discretion by imposing the firearm restraint without
analyzing the crime at issue or other circumstances of the
case, see ECF No. 44 ("Objs.") at 5; (2)
that the condition violated the Second Amendment, see
Id. at 8-11; and (3) that "[t]he Magistrate Judge
did not afford Defendant any opportunity to be heard on
the" firearm restraint, see id, at 11-12. The
Government filed its Response, arguing in support of the
firearm restraint, on December 11, 2018, see ECF No,
45 ("Resp."), and this Court issued an electronic
order on January 8, 2019, overruling Defendant's
objections and affirming the Magistrate Judge's Order in
its entirety, see ECF No. 46.
Fifth Circuit, however, remanded the matter to this Court on
October 22, 2019, because the Court did not "provid[e]
any discussion as to how the condition was proper under the
statute" and because "the record [was] not
developed enough ... to provide an independent ground for . .
. affirming the condition." United States v.
Green, No. 19-10055, 2019 WL 5406256, at *2 (5th Cir.
Oct. 22, 2019). Pursuant to the Fifth Circuit's
instructions, the Court provides the following discussion
explaining how the condition was proper.
Order Setting Pretrial Conditions
the district court acts on a motion to revoke or amend a
magistrate's pretrial detention order, the district court
acts de novo and must make an independent
determination of the proper pretrial detention or conditions
for release." United States v. Rueben, 974 F.2d
580, 585-86 (5th Cir. 1992) (citing United States v.
Fortna, 769 F.2d 243, 249 (5th Cir. 1985)). However, a
defendant must seek review of a magistrate judge's
detention order within fourteen days as prescribed by Fed. R,
CRIM. P. 59(a), or the "right to review is waived, and
review by the district court following such a waiver is
discretionary and not a matter of right." United
States v. Watts, Crim. No. 3:09-CR-249-D (09), 2010 WL
11452009, at * 1 (N.D. Tex. June 25, 2010) (citation
case, Defendant did not file a motion to amend or revoke the
Order Setting Conditions of Release within the time allotted
by Fed. R. Crim. P. 59(a). The Magistrate Judge issued the
Order Setting Conditions of Release on August 7, 2018, and
Defendant filed his objections on December 11, 2018.
See Order Setting Conditions of Release 3; Objs. 12,
Even if the Court considers the Joint Motion to Modify
Conditions of Release and Defendant's Supplement as
motions to amend or revoke the Order Setting Conditions of
Release, see ECF No. 30; Supp. to Bond Motion, these
motions were filed on September 28, 2018, and October 31,
2018s respectively-well outside the fourteen days
allowed for motions to modify the conditions of release.
See Fed. R. CRIM. P. 59(a). Therefore, the Court
finds that Defendant waived his right to have the Court
review the pretrial conditions and "declines in its
discretion to review the [M]agistrate [J]udge's
order." Watts, 2010 WL 11452009, at *1
(citing, among other authorities, United States v.
Clark, 865 F.2d 1433, 1436 (4th Cir. 1989) (en banc)).
the Court construes Defendant's Supplement and Objections
as a timely motion for review of the release order under 18
U.S.C, § 3145, the Court agrees with the recommendation
of Pretrial Services, (XXXXX) that
Defendant should not be allowed to possess a firearm,
destructive device, or other weapon. Even if Defendant is not
charged with a crime of violence and has no history of
violence, see 18 U.S.C. § 3142(g)(1), (3);
Objs. 7-8, Defendant's possession of firearms endangers
officers of the Pretrial Services who may make unannounced
visits to ensure that Defendant is complying with the
conditions of his release. The record before the Court
establishes that Defendant: (1)has admitted to "have no
respect for the federal government," Resp. Ex. 2 at 2;
(2) has advocated for state officers to arrest federal
officials, see id at 1-2; (3) has likened
the federal government to Nazi Germany, see id at 2;
and (4) may be (XXXXX) ECF No. 74-1,
See 18 U.S.C. § 3142(g)(3), (4) (instructing
the Court to consider "the history and characteristics
of the person" and "the nature and seriousness of
the danger to any person or the community that would be posed
by the person's release"); cf. United
States v. Deane, No. 93-2669, 1993 WL 455623, at *1
(5th Cir. 1993) (finding that threats of violence against
witnesses justified pretrial detention). Accordingly, the
Court finds that restricting Defendant "from possessing
a firearm, destructive device, or other dangerous
weapon" is the "least restrictive . ..
condition" that would "reasonably assure... the
safety of any other person and the community." 18 U.S.C.
Order Denying ...