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236 Fed.Appx. 441236 Fed.Appx. 441, 2007 WL 1620518 (C.A.1O(Kan.(Not Selected for publication in the Federal Reporter)(Cite as: 236 Fed.Appx, 441, 2007 WL 1620518 (C.A.I0 (Kan.)

This case was not selected for publication in theFederal Reporter.

Not for Publication in West's Federal Reporter SeeFed. Rule of Appellate Procedure 32.1 generallygoverning citation ofjudicial decisions issued on orafter Jan. 1,2007. See also Tenth Circuit Rule 32.1.(Find CTAlO Rule 32.1)

United States Court of Appeals,Tenth Circuit.

UNITED STATES of America, Plaintiff-Appellee,

Donnell Francis TIMLEY, Defendant-Appellant.

No. 07-3137.

June 6, 2007.

Background: Defendant was charged with posses-sion with intent to distribute cocaine base andmarijuana. The United States District Court for theDistrict of Kansas ordered that defendant remain indetention pending trial, and defendant appealed.

Holding: The Court of Appeals held that order thatdefendant remain detained pending trial was sup-

ported by magistrate's findings in record.Affirmed.

West Headnotes

Bail 49 ~49(3.1)

49 Bail4911In Criminal Prosecutions

49k49 Proceedings to Admit to Bail49k49(3) Evidence

49k49(3.l) k. In General. Most CitedCasesEvidence supported magistrate's findings that noconditions or combination of conditions would

reasonably assure that defendant did not presentdanger to community and that he presented flightrisk, as grounds for ordering that defendant remain

Page 1

detained pending trial for possession with intent todistribute cocaine base and marijuana; magistratenoted that there were "very few gaps" in defend-ant's adult history during which he was not eithersubject to prosecution or serving time, criminal his-tory included accusations for violent domestic bat-tery and intimidation of witness, and he faced man-datory life sentence. 18 3142(e).*441 Randy M. Hendershot, Office of U.S. Attor-ney, Topeka, KS, for Plaintiff-Appellee.

Marilyn M. Trubey, Office of the Federal PublicDefender for the District of Kansas, Topeka, KS,for Defendant-Appellant.

Before BRISCOE, EBEL, and O'BRIEN, CircuitJudges.

ORDER AND JUDGMENT

FN* After examining the briefs and appel-late record, this panel has determined un-animously that oral argument would notmaterially assist the determination of thisappeal. R.App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument.This order and judgment is not binding

precedent, except under the doctrines oflaw of the case, res judicata, and collateralestoppel. It may be cited, however, for its

persuasive value consistent with Fed.R.App. P. 32.1 and 10th Cir. R. 32.1.

PER CURIAM.

**1 Appellant Donnell Francis Timley, a federaldefendant charged with drug crimes, appeals thedistrict court's order of detention pending trial,

presently set to begin August 28,2007. We affirm.

*442 I.

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236 Fed.Appx. 441

236 Fed.Appx. 441. 2007 WL 1620518 (C.A.lO (Kan.))

(Not Selected for publication in the Federal Reporter)

(Cite as: 236 Fed.Appx, 441, 2007 WL 1620518 (C.A.I0 (Kan.)

Mr. Timley is charged with possession with intent

to distribute 74 grams of cocaine base and posses-

sion with intent to distribute 114 grams of

marijuana. As a matter of statute. the cocaine-base

count raises a rebuttable presumption of detention

pending trial. U.S.C. 3142(e).

The magistrate judge held a hearing at which he re-

counted Mr. Timley's extensive criminal history:

incarceration for 37 months for intent to distribute

cocaine base. the revocation of supervised release.

and a pending charge of conspiracy to distribute de-

pressants. The magistrate judge noted that there

were "very few gaps in the adult history in which

the Defendant was not either subject to prosecution

or serving some sort of sentence." Aplt.App. at

15-16. With this history. the present charges could

result in the imposition of a mandatory life impris-onment sentence.

The magistrate judge concluded that no conditions

or combination of conditions would assure that de-

fendant was not a danger to the community and that

defendant also posed a flight risk. U.S.C. 3l42(e) ("If, after a hearing ... the judicial officer

finds 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 person before trial.").

Upon its review. the district court madeeven more extensive findings concerning Mr. Tim-

ley's "continuous stream of [criminal] activity."

Aplt.App. at 47. For instance. the district court ob-

served that Mr. Timley had been on the scene of

multiple shootings. where law enforcement officers

found "him engaged in some criminal conduct" and

"always [with] drugs on him." at 50. Also. Mr.

Timley has been accused of violent domestic bat-

tery and there are reports that he had tried to intim-

idate a witness. Moreover. the district court ob-

'served that "when [Mr. Timley] has reason to avoid

and evade apprehension he does so. And certainly

when someone is facing a mandatory sentence of

life imprisonment they would have such motiva-

Page 2

tion." at 48. The district court agreed with the

magistrate judge that Mr. Timley should be de-

tained as a safety and flight risk.

II.

Generally. a bail appeal presents questions of fact

and mixed questions of law and fact.

328 F.3d 610. 613 (lOth Cir.2003).

"We apply de novo review to mixed questions of

law and fact concerning the detention or release de-

cision, but we accept the district court's findings of

historical fact which support that decision unless

they are clearly erroneous."

Mr. Timley, however. does not question either the

district court's interpretation of 3142(e) or its fac-tual findings. Instead. he claims that the district

court failed to give appropriate weight to his disab-

ility, his long-term ties in the community. the needs

of his wife and five-year-old son. his past history of

appearing for court dates. the absence of adult con-

victions for crimes of violence. and the failure of

the government to present evidence on the current

charges. 18 C. 3142(g) (listing factors forcourt consideration: (1) nature and circumstances of

offense charged. including whether offense is a

crime of violence or involves a controlled sub-

stance; (2) weight of evidence against defendant;

(3) defendant's history and characteristics; and (4)

nature and seriousness of danger *443 to any per-son or the community posed by defendant's re- lease).

**2 We see no error in the district court's consider-

ation of the statutory factors or the weight it accor-

ded to these factors. Mr. Timley failed to rebut the

presumption that. unless detained until trial. he

presents a danger to society and a risk of flight. Ac-

cordingly. we AFFIRM the decision of the district

court.

C.A.I0 (Kan. ).2007.

U.S. v. Timley

236 Fed.Appx. 441. 2007 WL 1620518 (C.A.1O

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236 Fed.Appx. 441

236 Fed.Appx. 441, 2007 WL 1620518 (C.A.IO (Kan.))

(Not Selected for publication in the Federal Reporter)(Cite as: 236 Fed.Appx. 441, 2007 WL 1620518 (C.A.I0 (Kan.)))

END OF DOCUMENT

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Westlqw

ORDER ABIlDBDGMENTFN'

After le~ the briefs and appel-late recordlateiaeperel has determined un-

animously aDimoosly argument would notmaterially asststialiJ determination of this

appeal. Se~IR3qDp. P. 34(a)(2); 10th

Cir. R. 34::it(GR. The case is therefore

ordered subrrlitted without oral argument.

This orderThi1d cjadiginent is not binding

precedent, ~ntl,I1der the doctrines of

law of the 19a'S~1htR~Udicata, and collateral

estoppel. It may be cited, however, for its

persuasive value consistent with Fed.

R.App. P. 32.1 and 10th Cir. R. 32.1.

PAUL KELLY, JR., Circuit Judge.

*1 Jason Boy appeals from the district court's order

requiring that he be detained pending trial. Exer-

cising our jurisdiction pursuant to 28 U.S.c. 1291

and 18 U.S.C. 3145(c), we affirm.

I.

In February 2009, a grand jury indicted Mr. Boy for

possession of child pornography in violation of 18

U.S.c. 2252(a)(4)(B), (b)(2). The investigationthat led to Mr. Boy's indictment began in 2006

when a ten-year-old girl in Florida who was online

in a children's chat room received a photograph of

an erect penis from someone using an AOL screen

name that was later traced to Mr. Boy. FBI agents

then located Mr. Boy in New Mexico and obtained

his consent to search his computer for evidence of

child pornography. That search uncovered approx-

imately 160 images of child pornography, as well

as an image matching the description of the sexu-

ally explicit image sent to the child in Florida. Mr.

Boy admitted that he created the email account

through which the image was sent to the child in

Florida, and he also admitted using the email ac-counts through which copies of that image were

sent to numerous other people.

Mr. Boy pleaded not guilty to the charged offense

and the government requested that he be detained

pending trial. The magistrate judge held a hearing

'on the government's request for pretrial detention.

.The government argued that Mr. Boy was a danger

'to the community and there were no conditions of

release that would reasonably assure the safety of

[the community; Mr. Boy argued that he should be

:released into the custody of his mother under the

'conditions recommended by Pretrial Services. At'the conclusion of the hearing, the magistrate judge

westlaw.comJprintiprintstt"eam.aspx?sv=Split&prid=ia7 44d85200000 121bOba1...:_

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Slip Copy

Slip Copy, 2009 WL 1019988 (C.A.IO (N.M.

(Not Selected for publication in the Federal Report

(Cite as: 2009 WL 1019988 (C.A.I0 (N.M.)

ordered Mr. Boy detained, finding that he was a

danger to the community. Among other things, the

magistrate judge stated that she did not believe that

Mr. Boy would abide by all the conditions of re-

lease suggested by Pretrial Services, because his

conduct with regard to three prior minor offenses

showed that "he has a track record for not following

directions from the Court."Aplt's App., Ex. C at 8.

Mr. Boy appealed the magistrate judge's pretrial de-

tention order to the district court, which conducted

a hearing in accordance with 18 U.S.C. 3142(f).The court informed the parties at the outset of the

hearing of the specific materials it had reviewed in

preparation for the hearing and confirmed with

counsel that those materials were sufficient to bring

the court "up to speed." Aplt.App., Ex. G at 2. At

the conclusion of the hearing, the district court de-termined that the magistrate judge was correct to

.order Mr. Boy detained before trial. The district

'court entered a written order directing that Mr. Boy

'be detained because he was a danger to the com-

munity. Mr. Boy now appeals the district court's

;pretrial detention order.

II.

The Bail Reform Act requires a magistrate judge or

district court judge to order a defendant detained

before trial if the judge determines "that no condi-

tion or combination of conditions will reasonablyassure the appearance of the [defendant] as required

and the safety of any other person and the com-

munity."18 U.S.C. 3142(e). In determiningwhether there are conditions of release that would

reasonably assure the defendant's appearance and

the safety of the community, the judge must con-

sider the following: 1) "[t]he nature and circum-

stances of the offense charged, including whether

the offense is a crime of violence;" 2) "the weight

of the evidence against the person;" 3) "the history

'and characteristics of the person," including, among

.other things, the person's family ties, length of res-

'idence in the community, employment, past con-

'duct, criminal history, and past record of appear-

;P -ag

ances at court proceedings; and 4) "the nattmtcJB1c3

seriousness of the danger to any person or thltlCiotnl

munity that would be posed by the persQt1bn~

3142(g). lease."l

*2 Claims of erroneous detention present q~t0b6

of mixed law and fact. C i.T fla rn X ,(

328 F.3d 610, 613 (lOth Cir.2003). On appa~

review the mixed questions of law and fat!vbNl-

cerning the detention decision de novo, "butC61Q181g

cept the district court's findings of histori~tfadt

which support that decision unless they arewhieHy.

The concept of safety of th~

munity under 3142(e) is not limited to thenianiW

of physical violence, but rather "refers dO Ith9

danger that the defendant might engage in ~l

activity to the detriment of the community."a~

880 F.2d 1158, 116ISt~MJth pr.1989) (internal quotation marks omitted). Cir.198'

III.

!At the hearing before the district court, the gttvdm-

ment addressed the relevant factors wuient ~

~124(g). It noted that the child pornography

~ith which Mr. Boy was charged constibddGI .

crime of violence and that the evidence shovomrthatl

~e had gone beyond merely possessing chil~d-

graphy to actually reaching out and conta

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Slip CopySlip Copy, 2009 WL 1019988 (C.A.IO (N.M.(Not Selected for publication in the Federal Reporter)(Cite as: 2009 WL 1019988 (C.A.I0 (N.M.)

graphy were his.

As to Mr. Boy's history and personal characterist-ics, the government argued that his failure to appear

in court and/or pay the fines associated with each ofhis three prior minor offenses showed his failure tofollow court orders. This factor, coupled with thefact that he was alleged to have committed thecharged offense while living with his parents,demonstrated that he was not suitable for supervi-sion by his mother, who was proffered as the third-

party custodian.

Finally, the government argued that the nature andseriousness of the danger Mr. Boy presented to thecommunity if released militated against release.Child pornography is a particularly invidious harmto both the children involved and society as awhole. "Because the child's actions are reduced to arecording, the pornography may haunt him in futureyears, long after the original misdeed took place. Achild who has posed for a camera must go throughlife knowing that the recording is circulating withinthe mass distribution system for child porno-graphy." 242 F.3d 1245,1247 (10th Cir.2001). Mr. Boy infiltrated a chil-dren's chat room to contact a child and send hersexually explicit material, and he sent the samesexually explicit material to numerous other emailaddresses from accounts he admittedly created andused. Moreover, because access to the internet can

be gained not only from a home computer but from public computers and various hand-held devices, itwas unlikely that his use of the internet could beadequately supervised.

*3 Mr. Boy's counsel, in turn, noted that when theFBI agents contacted Mr. Boy, he voluntarily sur-rendered his computer to them and did not try toflee. Once Mr. Boy was indicted, he voluntarilysurrendered to authorities. Further, between the

'time he surrendered his computer to the FBI and thetime he was indicted, the government had no evid-ence that Mr. Boy had engaged in any further con-duct involving child pornography. !

Counsg ll:J~0 pointed out that Pretrial Services hadrecomH\Wl4edthat Mr. Boy be granted release onnumer~onditions, all of which he was willing tofollo~~'JH1ose conditions included that Mr. Boy

have ~ ~ess to a computer, that he be subject toelectrqmJ:}U1onitoring,and that he have no contactwith am'* under the age of 18-including his girl-friend'lth~-year-old daughter-unless supervised byan ad\!t\!g~ least twenty-one years of age. PretrialServicS\ui\lf;ohad approved Mr. Boy's mother as athird-~custodian, and she had agreed to super-vise ~ni@y and to promptly report any infractionsof theONVWsof release. Further, both Mr. Boy andhis Pti~l!t~ had assured counsel there were noworki~~puters in the parents' house that wouldaffordvftfinainternet access. Finally, Mr. Boy was alifeloIlfieft(fidentof Las Cruces, and his family and

girlfriCiWdadVere present in the courtroom and wereready ~ist in his supervision.

,igeL'N. Mr. Boy's appellate appendix does, f T m . e contain a copy of the Pretrial ServicesLigellf?rt.Mr. Boy's counsel represents in hisvdHilif that although he was permitted to re-lfmv the report, he has not permitted toif_ a copy of it. His descriptions of the

riJllffiyisions of that report are, therefore,~~ed on his notes and recollection. Be-

cause the government does not disputecounsel's descriptions of the Pretrial Ser-vices report, we will assume the contents

of that report are as counsel describes.

IV.

After hearing the parties' arguments and question-ing both counsel and the probation officer, the dis-trict court made oral findings on the record. Thecourt stated that the lack of any evidence that Mr.Boy had been involved with child pornography dur-ing the period between the seizure of his computerand his indictment weighed in his favor and madethe decision on pretrial release a close one. Non-etheless, the court concluded that the magistrate~udge~~de the right call when she detained Mr.

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Mr. Boy challenges the district cOlMls Drtyntimilm~der based in part on the district collitIsl:&Sb4tcirt

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Sent:

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center:

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mailto:freashpowder@gmail.com;mailto:olin@lkpd.org;mailto:askdoj@usdoj.gov;

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,"Caa~-2:Q7.:.C.k~Q1McCNsJEOvv 15 lof3

CORRUPTION IN T~ YELLOWHOUSE CASE PLEASEINVEmGATE

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proceeded to search through th tire car and trunk with out a search nt or probable and he

even pulled out the back seat.

After the search her manager asked officer Bialek to leave. She asked the officer for his card but he declined to

give her one. She then filed a complaint with the police department about this violation of her rights. Several

months later after a 2 female filed a complaint against officer Bialek for illegally searching her (patting her

down) Internal affairs Sgt. Dan Ward called her and asked to meet with her. She agreed to meet the following

week. The next day uniformed officers went to her house, and her job, intimidating her, telling her she had

tickets and was in violation of the law. So she went down to the police station and had her records pulled. Notickets!

During the meeting the following week Internal affairs Sergeant Dan Ward informed Annette, and her friend

(who went along with her, who happened to be her new civil attorney) Lawrence Police have the right to do

unwarranted searches without probable cause. And she had tickets. After her car tag number was found to be in

a discrepancy, it was agreed upon that she did not have tickets after all. Annettes friend (her new attorney)

could not take it any longer so he informed the officer Ward that unless the police dept. travels to everyones

house and job to inform them they have tickets they are harassing his client! And the meeting ended. To date

this was the extent of the investigation into her complaints by the Lawrence Police Internal Affairs Dept.

In the following two months she was pulled over 8 different times without being given a ticket.

Officer Bialek continued to intimidate and harass her at her job by coming into the kwik shop, buying a pack of

cigarettes and tossing them into the trash leaving the store. This ritual was cought on the Kwik shop video

surveillance tapes a total of24 times. After it was made known that the Kwik Shop had the videos and her

attorney was going to get them, Officer Bialek went into the Kwik Shop and approached the manager with a list

of dates and attempted to seize the videos absent of a search warrant. This incident was also on the Kwik Shop

surveillance video.

All the videos were turned over to Annettes civil attorney prior to any of the videos being released to the

Police. Police officers also went to Annettes house without just cause, while she was at work and knocked on

her door, and repeatedly drove by her house slowly to intimidate her boyfriend and daughters. The yellow hous~ business owners have known Annette since she was 12-yrs. Old and she is like a daughter to the Neighbors, so

when the officers went to her house while she was at work Annette called Mr. Neighbors and asked him to go

buy her house to make sure her family was safe, and when the Neighbors arrived they saw the cops driving by

real slow and the police parked at the end of the block. Annette and her family moved to Colorado because of

the police harassment and one weekend her tires were slashed and her neighbors saw a crown vic. With Kansas

tags and a white short white man and her neighbors though Annette had family visiting from Kansas

Annette Miller is not a drug user, and has no criminal history. Yet AUSA Marietta Parker at the Kansas DOJ

was told by the officers involved in the case at the pre-indictment hearing that the Yellow House Store Provided

lists and free cars to crackheads to go steal for them with out a any evidence to back up their claims, later the

cops tried to use this car as the car provided to crackheads and began to harass Annettes family. The fact that is

very confusing is a crackhead will not return a car so who would give a car to a crackhead, and who do yousuppose was providing the insurance for these cars that allegedly were given to the crackheads ?

Can you believe a U.S. attorney with more than 30-yrs. On the job would take a case based on these statements

without evidence to support the claims.

The only bad mistake is the one from which we learn nothing.

2

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