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United States v. Pettiway

United States District Court, M.D. Alabama, Northern Division

December 13, 2018

UNITED STATES OF AMERICA
v.
TIMOTHY DEAN PETTIWAY

          MEMORANDUM OPINION AND ORDER

          EMILY C. MARKS UNITED STATES DISTRICT JUDGE

         Now pending before the court is the defendant's motion to review and reverse detention order (doc. # 62) filed on November 30, 2018. Pursuant to 18 U.S.C. § 3145(b), the defendant seeks review of the detention order entered by United States Magistrate Judge Gray Borden on November 16, 2018.[1] (Doc. # 62). The Government opposes the defendant's motion. (Doc. # 65). The Court has independently examined and reviewed the proceedings before the Magistrate Judge, including the transcripts of the detention hearings held on August 17, 2018 and November 15, 2018, the pretrial services report prepared on August 15, 2018, as well as the motions and briefs filed in support of and against detention. Upon consideration of the arguments of counsel, the evidence presented, the relevant law, and for the reasons that follow, the Court concludes that the defendant's motion is due to be DENIED.

         JURISDICTION

         Pursuant to 18 U.S.C. § 3145(b), a defendant who has been ordered detained pending trial may move the court with original jurisdiction over the offense to revoke or amend the detention order.

         PROCEDURAL HISTORY

         On August 13, 2018, defendant Timothy Dean Pettiway (“Mr. Pettiway”) was charged in a criminal complaint with theft from a gaming establishment on Indian lands in violation of 18 U.S.C. § 1167. Mr. Pettiway is accused of entering “the Wind Creek Casino-Montgomery on August 10, 2018, to abstract, purloin, willfully misapply, or take and carry away with the intent to steal any moneys, funds, or other property of value in excess of $1, 000 belonging to a gaming establishment operated by or for or licensed by an Indian tribe pursuant to an ordinance or resolution approved by the National Indian Gaming Commission.” (Doc. # 1 at 3, ¶ 5). Specifically, Mr. Pettiway is accused of stealing $192, 800.00 from two kiosk machines at the casino. (Id. at 5, ¶ 13).

         Mr. Pettiway was arrested on August 14, 2018. The government filed a motion for detention asserting that he was a flight risk, and a danger to the community. (Doc.# 7). On August 17, 2018, the Magistrate Judge held a preliminary hearing a detention hearing at which Federal Bureau of Investigation agent Matt Minshew testified. (Doc. # 56). Minshew testified to the acquisition of video surveillance from the casino. The surveillance video was played at the preliminary and detention hearing. Minshew positively identified Mr. Pettiway on the video surveillance. (Id. at 7-9). In addition, Minshew testified that the surveillance video showed Mr. Pettiway removing cash boxes from the kiosk machines and taking the cash boxes into the men's restroom. The cash boxes were later recovered from the restroom but the boxes were broken into and empty of the cash. The Magistrate Judge found that there was probable cause “to find Mr. Pettiway was involved in the offense charged in the complaint” and bound him over for further proceedings. (Id. at 36).

         The Court then turned to the question of detention. Relying on the strength of the surveillance video evidence and the pretrial services report, the government argued that Mr. Pettiway should be detained pending trial. (Id. at 37). The pretrial services report that documented Mr. Pettiway's lengthy criminal history with convictions in Alabama, Florida, Louisiana, and California. The government further asserted that in 2017, Mr. Pettiway was arrested in Elmore County, Alabama after a high-speed chase in which Mr. Pettiway's speed approached 114 miles per hour as he attempted to flee from the police. (Id.). Finally, the government argued that the almost $200, 000 that was stolen had not be recovered and with that amount of money missing, Mr. Pettiway was a flight risk and potentially dangerous. (Id. at 38).

         Mr. Pettiway, on the other hand, argued that the evidence presented by the government had “a lot of holes in this story.” (Id.) Mr. Pettiway pointed to the fact that although his residence was searched, the money was not found there. (Id. at 39). He asserted that he had significant family ties to the community, and his criminal history was old. After hearing from Mr. Pettiway's girlfriend, the Magistrate Judge ordered Mr. Pettiway detained.

Ultimately, this is a difficult question for me. I am sensitive to the request, certainly, made by Ms. Webster that Mr. Pettiway be allowed to be home with his family. However, there is too much here to make me comfortable with that, particularly with respect to criminal history, which is very substantial and spans, effectively, Mr. Pettiway's entire life up through very recently.
I also have concerns about the extensive substance abuse history, which certainly cuts against his ability to comply with the law and to be someone that we can trust to be on bond pending trial.
I am also concerned about the extensive travel back and forth between California, which is borne out by the criminal history and the fact that there have been a number of occasions, it appears, that Mr. Pettiway has used false identification or aliases.
* * *
In addition to that, it's my understanding that Mr. Pettiway is currently on probation out of California, which is yet another factor that gives me a real concern about his respect for the law and his ability ...

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