United States District Court, M.D. Alabama, Northern Division
H. THOMPSON, UNITED STATES DISTRICT JUDGE.
cause came before the court on the government's motion to
revoke the bond of defendant Savill L. Rush based on new
information. During a hearing on May 18, 2018, after hearing
evidence, the court construed the government's motion as
a motion to reopen Rush's detention hearing pursuant to
18 U.S.C. § 3142(f), granted that motion, and ordered
that he be detained pending his revocation hearing. The court
now issues this opinion to further explain its reasoning.
January 6, 2018, officers from the Montgomery Police
Department responded to a 911 call to find J. R. badly
beaten. The officers took defendant Rush into custody. Rush
was charged with Domestic Violence 3rd, a charge that was
later upgraded to Domestic Violence 2nd because of the
seriousness of J. R.'s injuries. Rush was held at the
Montgomery County Detention Facility in state custody. On
January 9, the United States Probation Office filed a
petition to revoke Rush's supervised release, and this
court issued a warrant for his arrest.
was arrested on April 9. That day, the court convened an
initial appearance, and the United States Magistrate
Judge--based on Rush's election not to contest the
allegations--found probable cause to believe that Rush
violated the conditions of his supervised release. The
magistrate judge then released Rush from custody under the
terms of his supervised release pending a revocation hearing
in this court, and ordered that Rush have no contact with the
alleged victim in the meantime. That revocation hearing was
scheduled for May 16.
court that day, Rush informed the court that he was
dissatisfied with his appointed counsel's performance and
he asked for the assistance of a different attorney. His
counsel agreed that a new attorney would be required because
of the strained relationship between him and Rush, and the
court granted counsel's request to withdraw as counsel
pending the end of the day's hearing. The court then
continued the revocation hearing to a later date so that the
court could appoint new counsel and to allow time for such
new counsel to meet with Rush and prepare for the revocation
hearing. Since that time, new counsel has been appointed, and
Rush's revocation hearing is now set for May 24.
concluding the May 16 hearing, the government informed the
court that it had acquired additional evidence about
Rush's acts on the night of January 6, and, in light of
that evidence, the government made an oral motion to revoke
Rush's bond. During the hearing, the government presented
harrowing evidence in the form of recordings of two 911 calls
made by J. R.; recordings of seven calls between Rush and J.
R. while he was in jail; testimony from a police officer who
responded to J. R.'s 911 calls on January 6; and a
picture of J. R. taken that night. The court also heard
testimony from J.R.
stated, the court construed the government's motion as a
motion to reopen Rush's detention hearing pursuant to 18
U.S.C. § 3142(f), and, after hearing the evidence,
granted that motion and ordered that Rush be detained pending
his revocation hearing.
to 18 U.S.C. § 3142(e)(1), the court must order the
detention of a defendant if, after a hearing, the court finds
that “no condition or combination of conditions will
reasonably assure... the safety of any other person and the
community.” Such a finding must be supported by clear
and convincing evidence. § 3142(f).
detention hearing “may be reopened, before or after a
determination by the judicial officer, at any time before
trial if the judicial officer finds that information exists
that was not known to the movant at the time of the hearing
and that has a material bearing on the issue whether there
are conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.” § 3142(f). In
support of its motion to reopen the detention hearing, the
government claimed--and Rush did not challenge--that it did
not have access to the recorded phone calls at the time of
the initial detention hearing. The court credited the
government's claim. Because the new evidence had a
“material bearing” on whether conditions of
release could assure J. R.'s safety, the court found that
reopening the detention hearing was permissible.
determining whether conditions of release will suffice to
assure the safety of any other person and the community,
courts are required to consider the following factors set
forth in § 3142(g): the nature and circumstances of the
offense charged; the weight of the evidence; the history and
characteristics of the defendant; and the nature and
seriousness of the danger to any person or the community.
Based on the clear and convincing evidence presented, the
court found that no condition or combination of conditions
could reasonably ensure J. R.'s safety absent Rush's
detention. Each of the factors outlined in § 3142(g)
weighed in favor of his detention.
the nature and circumstance of the offense weighed in favor
of Rush's detention. Rush is charged with committing
domestic violence so severe that J.R.'s nose was broken
and required surgery. The evidence showed that she suffered
serious physical injuries. In the 911 calls, J. R. sobbed
uncontrollably to the 911 operator while a man (whom she
identified to the operator as Savill Rush) screamed and
threatened her. J. R. made clear that she feared for her life
and begged the operator for the police to arrive more
quickly. One of the calls lasted seven minutes, but seemed
much longer. Rush not only severely beat J.R., he terrorized
her. This weighed in favor of his detention.
the weight of the evidence was heavily against Rush. The
court heard no evidence suggesting that Rush did not attack
and beat J.R.; on the contrary, all of the evidence showed
that he did exactly that. Aside from the 911 recordings, Rush
made several admissions during his jail telephone calls with
J.R. For example, he said to J. R. that he would “break
that [nose] again.” When J.R. complained that she had
to have surgery on her broken nose as a result of their
altercation, Rush replied that the surgery would not be
nearly as bad as the time he would have to spend in ...