2016-03-18 Ecf 150 Usa V Gregory Burleson - Memorandum Re Pretrial Release

2016-03-18 150 0 MEMORANDUM re: Pretrial Release; filed by Gregory P. Burleson. (Attachments: # 1 Exhibit)(Jackson, Terrence) (Entered: 03/18/2016)
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Case 2:16-cr-00046-GMN-PAL Document 150 Filed 03/18/16 Page 1 of 4 1 4 TERRENCE M. JACKSON, ESQ. Nevada Bar No. 00854 Law Office of Terrence M. Jackson 624 South Ninth Street Las Vegas, NV 89101 T: 702-386-0001 / F: 702-386-0085 [email protected] 5 Counsel for Defendant, Gregory P. Burleson 2 3 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 UNITED STATES OF AMERICA, 9 Plaintiff, v. 10 GREGORY P. BURLESON, 11 Defendant. 12 13 ) ) ) ) ) ) ) ) ) CASE NO.: 2:16-CR-00046-3-GMN-PAL DEFENDANT’S MEMORANDUM IN SUPPORT OF PRETRIAL RELEASE 14 15 COMES NOW Defendant, GREGORY P. BURLESON, by and through counsel, 16 TERRENCE M. JACKSON, ESQ., and moves this Court for pretrial release because he does not 17 present a risk of nonappearance and he is not a danger to the safety of others. There exist conditions 18 that can be drafted to ensure his appearance and also guarantee the public’s safety, 18 U.S.C. § 19 3142(e). 20 Defendant is willing to accept the following conditions and any other this Honorable Court 21 deems appropriate: 22 (1) Restrict his movement to Phoenix, Arizona, and Clark County, Nevada; 23 (2) Surrender any passport; 24 (3) Forfeit the possession of any firearm or other weapon(s); 25 (4) Forbid the Defendant associating with all other co-defendants in this indictment; 26 (5) Forbid the Defendant from using the internet while on pretrial release. 27 It should be noted that the Defendant’s total blindness makes most of the conditions, and any 28 other conditions that may be imposed, unnecessary to assure his appearance and/or to protect the public. Case 2:16-cr-00046-GMN-PAL Document 150 Filed 03/18/16 Page 2 of 4 1 The Government cannot establish with his current medical condition, which will never 2 improve, that he is a danger to anyone. It is absurd to argue that a helpless blind man can present a 3 danger to others. Whatever his past record, and it is relatively minimal for a fifty-two year old man, 4 (he has one DUI conviction and one felony/misdemeanor conviction for a road-rage type offense 5 assault for which he served one day) the burden is on the Government to show by clear and 6 convincing evidence that he is a risk of safety to others if he is released pretrial. United States v. 7 Scales, 344 F.Supp.2d 213 (D. Me. 2004). 8 Although the Government in their memorandum has possibly made a good argument for 9 detaining co-defendant Cliven D. Bundy, it nevertheless fails to establish Gregory P. Burleson is a 10 danger to flee or that he presents a danger to the community. Despite government attempts to suggest 11 Burleson has a horrible criminal record, they have failed in this characterization of his record. They 12 have greatly exaggerated the extent of his past misdeeds. Burleson has only served a total of eleven 13 days in jail in his whole life before this case. Since being put in jail he has been denied necessary 14 medication for his seizure disorder and for his recent eye surgeries. (See, Defense Exhibit ‘A’ ) 15 The bail reform act emphasizes that the Defendant is presumed innocent. Despite the 16 allegations by the Government of hundred of adverse witnesses the Government has interviewed and 17 the terabyte of data they have seized from search warrants and social media, they have not yet 18 convicted Defendant of any crime. 19 They have alleged hyperbolic statements by the Defendant on Facebook where he has 20 questioned and insulted the Government and Government leaders including President Obama. These 21 Facebook postings even if made by the Defendant, are not sufficient to compel in-custody status of 22 the Defendant in this case. 23 Defendant, is not, or has not ever been charged with incitement to riot or any other crime that 24 would obviate his free speech rights. See, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 1829, 25 23 L.Ed.2d 430 (1969). “The Constitutional guarantees of free speech and free press do not permit 26 a State to forbid or proscribe advocacy of use of force or of law violation except where such 27 advocacy is directed to inciting or producing imminent lawless action and is likely to incite or 28 produce such action.” Stewart v. McCoy, 537 U.S. 993, 123 S.Ct. 468, 470, 154 L.Ed.2d 361 (2002). -2- Case 2:16-cr-00046-GMN-PAL Document 150 Filed 03/18/16 Page 3 of 4 1 While some of the alleged postings are distasteful and offensive they do not require the 2 Defendant remain incarcerated for months awaiting trial. 3 CONCLUSION 4 There do exist conditions that will prevent Defendant from fleeing and prevent him from 5 being a risk of harm to the community. Keeping him incarcerated would violate his rights under both 6 the Bail Reform Act of 1984 and the Eighth Amendment. It would amount to unnecessary and 7 unwarranted pretrial punishment and this court should deny the prosecutor’s request to detain 8 Defendant pretrial but instead release him with reasonable conditions on pretrial release. 9 10 11 DATED this 18th day of March, 2016. /s/ Terrence M. Jackson 12 Terrence M. Jackson, Esquire 13 Nevada Bar No.: 00854 14 Law Office of Terrence M. Jackson 15 624 South Ninth Street 16 Las Vegas, NV 89101 17 T: 702-386-0001 / F: 702-386-0085 18 [email protected] 19 Counsel for Defendant, Gregory P. Burleson 20 21 22 23 24 25 26 27 28 -3- Case 2:16-cr-00046-GMN-PAL Document 150 Filed 03/18/16 Page 4 of 4 1 CERTIFICATE OF ELECTRONIC FILING AND SERVICE 2 3 I hereby certify that service of the above entitled DEFENDANT’S MEMORANDUM IN 4 SUPPORT OF PRETRIAL RELEASE was made this 18th day of March, 2016, upon the parties in 5 this action by CM/ECF (electronic filing) as follows: 6 7 DANIEL G. BOGDEN 8 United States Attorney 9 NICHOLAS D. DICKINSON 10 Assistant United States Attorney 11 NADIA AHMED 12 Special Assistant United States Attorney 13 STEVEN MYHRE 14 First Assistant United States Attorney 15 16 17 18 19 20 21 22 /s/ Ila C. Wills 23 By: 24 Legal Assistant to Terrence M. Jackson 25 26 27 28 -4- Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 1 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 2 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 3 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 4 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 5 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 6 of 7 Case 2:16-cr-00046-GMN-PAL Document 150-1 Filed 03/18/16 Page 7 of 7