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United States v. Lay

United States District Court, D. Nevada

August 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN LAY, SR., Defendant.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE

         Before the Court is an Emergency Motion for Revocation of Magistrate Judge's Release under 18 U.S.C. § 3145(a) filed by the United States (#14). Defendant Kevin Lay, Sr. has responded in opposition.

         I. Background

         A. Factual Background

         Kevin Lay, Sr. is charged by indictment with one count of felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The indictment stems from a shooting outside the Boulevard Mall in April of 2019. Video surveillance footage from the night of the incident captured a man wearing red pants, a red, white, and blue shirt, and a red hat standing in a parking lot outside of the Boulevard Mall parking garage.[1] The government claims that the man in the red pants and red, white, and blue shirt is Lay. The video shows Lay involved in a verbal altercation with an unknown person who is standing off-screen inside the garage. Throughout the footage, Lay is being restrained by another man but can be seen gesturing toward the unseen person in the garage. The video then appears to show gunfire coming from inside the garage and presumably aimed at Lay or his son who was also standing in the parking lot near Lay. Lay and his son returned fire, each firing multiple rounds into the parking garage while they attempted to find cover behind cars in the parking lot. The men then fled the scene.

         The Las Vegas Metropolitan Police Department responded to the Boulevard Mall shootout and opened an investigation. That investigation led them to Lay. Police obtained both an arrest warrant for Lay and search warrant for Lay's residence. During the search, police recovered clothes similar to the clothes worn by the man shown in the security video (red pants, a red, white, and blue shirt, and red hat) and two separate Glock .40 caliber handguns. Govt.'s Mot. to Revoke 4-5, EFC No. 14. According to the government, police discovered the first firearm in a safe that also held Lay's personal identification like his passport, social security card, and driver license. Id. at 4-5. Police found the second firearm in the same room they found the clothing. Id. at 5. Police compared the shell casings from the Boulevard Mall shooting and found them to match the .40 caliber Glock handgun they found in Lay's home. Id.

         B. Procedural Background

         The grand jury returned an indictment against Lay on August 13, 2019, and police arrested Lay six days later. See Indictment, ECF No. 1, Arrest Warrant, ECF No. 12. Lay was scheduled to appear before a magistrate judge for a detention hearing on August 19, 2019. That hearing was continued, however, when the government attempted to publish the video surveillance footage without first disclosing the video to Lay. The government produced the video to the defense, and Lay's detention hearing proceeded as planned on August 20, 2019.

         Pretrial Services performed its initial investigation into Lay's criminal and personal history and recommended that Lay be denied bail. Although Pretrial Services determined that Lay was not a flight risk, it believed that no condition or combination of conditions could reasonably assure the public's safety if Lay were released pending trial. Pretrial Services based its recommendation on Lay's criminal history, which showed multiple arrests, charges, and convictions culminating with a 1992 conviction for murder with a deadly weapon, which Pretrial Services believed to be gang related. Lay's conviction was vacated by the Nevada Supreme Court in 2003 due to Brady violations. Mot. to Revoke at 7. Lay would eventually enter an Alford plea and accept a time-served sentence. Lay's Alford plea and felony conviction prohibit Lay from owning or possessing a firearm or ammunition. Id

         Given Lay's criminal history, his alleged gang connections, the nature of his current offense, and his propensity to continue to violate the law, Pretrial Services recommended that Lay be denied bail. Over the recommendation of Pretrial Services, Magistrate Judge Koppe ordered Lay released on his own recognizance. Magistrate Judge Koppe admitted that she had serious concerns about Lay's willingness to comply with the conditions of pretrial release but found that a strict combination of conditions could provide the requisite protection to the community. The government immediately moved to stay the release order, which was granted. The government timely filed its emergency motion to revoke the magistrate judge's release decision under 18 U.S.C. § 3145(a), which allows the government to seek review by a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145(a). Lay promptly opposed the motion.

         II. Legal Standard

         The Court reviews a magistrate judge's order of release de novo. See United States v. Koenig, 912 F.2d 1190, 1192-93 (9th Cir. 1990). The high standard imposed by de novo review is consistent with the goals of the Bail Reform Act, which envisioned a “more plenary” review process at the district level than at the appellate court. Id at 1192. While the Court need not “start over” or “proceed as if the magistrate [judge's] decision and findings [do] not exist, ” it must review the facts and arguments without deference to the magistrate judge's decision. Id; see also id at 1191 citing United States v. Thibodeaux, 663 F.2d 520, 522 (5th Cir. 1981) (“[district court] is not constrained to look for abuse of discretion or to defer to the judgment of the prior judicial officer”). To that end, the Court may hold evidentiary hearings or order additional briefing before rendering a decision. Id at 1193; United States v. Delker, 757 F.2d 1390, 1394 (9th Cir. 1985). Alternatively, the Court may decide the motion without a hearing. See LR 78-1 (district court may decide “all motions . . . with or without a hearing”).

         III. Analysis

         The Bail Reform Act allows pretrial release unless the Court 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.” 18 U.S.C. § 3142(e). Section 3142(e) is concerned with two things: the defendant's appearance at later court dates and the danger a released defendant poses to others. As to a defendant's risk of flight, the government must prove by a preponderance of the evidence that the defendant will not appear as required. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). As for a defendant's danger to the community, the government faces a higher burden. The government must show by clear and convincing evidence that no pretrial conditions could reasonably assure the public's safety. 18 U.S.C. § 3142(f)(2)(B); Motamedi, 767 F.2d at 1406. Neither the government nor Pretrial Services ...


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