United States v. Pirk

220 F. Supp. 3d 402, 2016 WL 7322813, 2016 U.S. Dist. LEXIS 174347
CourtDistrict Court, W.D. New York
DecidedDecember 12, 2016
Docket1:15-CR-00142 EAW
StatusPublished

This text of 220 F. Supp. 3d 402 (United States v. Pirk) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Pirk, 220 F. Supp. 3d 402, 2016 WL 7322813, 2016 U.S. Dist. LEXIS 174347 (W.D.N.Y. 2016).

Opinion

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. BACKGROUND

Defendant David Pirk (hereinafter “Defendant” or “Mr. Pirk”) seeks revocation of the magistrate judge’s detention order pursuant to 18 U.S.C. § 3145(b). (Dkt. 348). Defendant is one of 16 defendants named in a 46-count Second Superseding Indictment (Dkt. 33) returned on March 16, 2016, that alleges various crimes, including a RICO1 conspiracy in violation of 18 U.S.C. § 1962(d), firearm offenses in violation of 18 U.S.C. § 924, and various VICAR2 counts, pertaining to the operation of the Kingsmen Motorcycle Club (“KMC”).

The Second Superseding Indictment paints a picture of a biker club obsessed with maintaining its perceived power and preventing members from “jumping patch” to rival clubs through the use of force and violence, ultimately escalating to the murders of two allegedly disloyal members. According to the Second Superseding Indictment, the organization operated through a strict hierarchal structure, with orders coming from the top down, and Defendant was at the very top — serving as the national president of KMC. (Dkt. 33 at ¶¶ 5-6).

Defendant is named in the following eight counts:

(1) Count 1 (RICO conspiracy) in violation of 18 U.S.C. § 1962(d);
(2) Count 2 (possession of firearms in furtherance of crime of violence) in violation of 18 U.S.C. §§ 924(c)(1)(A)® and 2;
(3) Count 19 (murder in aid of racketeering) in violation of VICAR, 18 U.S.C. §§ 1959(a)(1) and 2;
(4) Count 20 (murder in aid of racketeering) in violation of VICAR, 18 U.S.C. §§ 1959(a)(1) and 2;
(5) Count 21 (possession and discharge of firearm in furtherance of crime of violence) in violation of 18 U.S.C. §§ 924(c)(l)(A)(iii), 9240), and 2;
(6) Count 22 (possession and discharge of firearm in furtherance of crime of violence) in violation of 18 U.S.C. §§ 924(c)(l)(A)(iii), 924®, and 2;
[404]*404(7) Count 45 (using and maintaining the KMC South Buffalo Chapter’s clubhouse for drug dealing) in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2; and
(8) Count 46 (possession of firearms in furtherance of drug trafficking) in violation of 18 U.S.C. §§ 924(c)(1)(A)© and 2.

(Dkt. 83). Initially, a Notice of Special Findings was filed with respect to Mr. Pirk on Counts 19 through 22, which arguably subjected him (along with co-defendant Andre Jenkins (“Jenkins”)) to the death penalty. (Id. at 70-71). However, the United States Attorney General authorized and directed the U.S. Attorney’s Office in this district not to seek the death penalty with respect to Mr. Pirk (or Jenkins). (Dkt. 348-2).

Defendant was arrested and subsequently arraigned on March 22, 2016, in the United States District Court for the Middle District of Florida, Ocala Division, where he was temporarily detained by United States Magistrate Judge Philip R. Lammens pending a detention hearing scheduled for the following day. (Dkt. 364 at 2). The United States Probation Office in that district prepared a Pretrial Services Report, recommending that Mr. Pirk be released on conditions. (Dkt. 349 at 2-9) (filed under seal).

On March 23, 2016, a detention hearing was held before Magistrate Judge Lam-mens, who considered Defendant’s detention at the same time he considered the detention of a co-defendant, Timothy Enix (hereinafter “Enix”). The hearing before Magistrate Judge Lammens lasted approximately two hours. (Dkt. 364 at 2 n.l). The Government proceeded by proffer and also presented the testimony of FBI Special Agent David Brown. (Dkt. 348-3) (transcript of detention hearing before Magistrate Judge Lammens). Patty K. Wayland, Defendant’s significant other, testified on his behalf at the hearing. (Id.). At the conclusion of the hearing, Defendant was ordered detained, as was Enix.3 (Id. at 52-55).

On May 4, 2016, Defendant filed a motion requesting that United States Magistrate Judge Michael J. Roemer, the magistrate judge assigned to the case in this district, conduct a de novo review of Magistrate Judge Lammens’ decision. (Dkt. 129). On May 23, 2016, Magistrate Judge Roemer determined that he did not have authority to review the detention decision of another magistrate judge. (Dkt. 153; see Dkt. 364 at 4).

On October 27, 2016, Defendant filed a motion before the undersigned seeking revocation of Magistrate Judge Lammens’ detention order. (Dkt. 348). The Government filed its response in opposition on November 21, 2016. (Dkt. 364). Defendant filed a supplement to his motion on November 29, 2016. (Dkt. 371). A motion hearing was held on December 1, 2016, at which both counsel for the Government and Defendant proceeded by proffer. (Dkt. 373). At the completion of the motion hearing, the Court reserved decision.

II. LEGAL STANDARD

The Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., authorizes and sets forth the procedures for the release or detention of a person pending trial, sentence, and appeal. The procedures and standards for release or detention of a person pending trial are set forth at 18 U.S.C. § 3142. A defendant awaiting trial must be released unless the release will present a risk of flight or danger, or both, [405]*405and no set of conditions can reasonably protect against those risks. See United States v. Berrios-Berrios, 791 F.2d 246, 260 (2d Cir. 1986) (explaining that the Bail Reform Act codified “traditional presumption favoring pretrial release for the majority of Federal defendants” (quotation omitted)).

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Bluebook (online)
220 F. Supp. 3d 402, 2016 WL 7322813, 2016 U.S. Dist. LEXIS 174347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pirk-nywd-2016.