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					     Case: 10-1618        Document: 006110620601    Filed: 05/06/2010       Page: 1




                                   IN THE
                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                             6th Cir. No. 10-1618

              Plaintiff - Appellant,

v.

DAVID BRIAN STONE; DAVID BRIAN STONE, JR.;
JOSHUA MATTHEW STONE; TINA MAE STONE;
JOSHUA JOHN CLOUGH; MICHAEL DAVID MEEKS;
THOMAS WILLIAM PIATEK; KRISTOPHER T. SICKLES;
JACOB J. WARD

              Defendants - Appellees.



          EMERGENCY MOTION FOR A STAY OF THE DISTRICT
             COURT’S ORDER RELEASING DEFENDANTS
                        PENDING TRIAL


      Pursuant to Federal Rule of Appellate Procedure 8(a), the United States of

America by and through its attorneys, Barbara L. McQuade, United States

Attorney, and Ronald W. Waterstreet and Joseph L. Falvey, Assistant United

States Attorneys, moves this Court for a stay of the district court’s order releasing

the defendants pending trial.

      On May 5, 2010, the United States appealed from the United States District

Judge Victoria Roberts’s May 3, 2010 order1 releasing the defendants pending



      1
          The Solicitor General has authorized the appeal.
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trial.2 (R. 137: Order Granting Defendants’ Motions for Revocation of Detention

Orders, hereinafter “the Release Order”; R. 143: Notice of Appeal.)

      Prior to the entry of the Release Order, all defendants had been detained by

order of two United States Magistrate Judges, one in the Eastern District of

Michigan, and one in the Northern District of Indiana.

      Following the entry of the Release Order, the government filed a motion for

a stay, to permit the instant appeal. (R. 139: Motion for Stay.) The district court

entered a limited stay (R.140: Order), requiring the government to inform it by

5:00 p.m. on May 5, 2010, whether it had received Solicitor General approval to

appeal, and reasons to continue the stay. The government did receive approval to

appeal, see Note 1, supra., and filed the Supplemental Brief of the United States in

Support of Extension of Stay Pending Appeal. (R. 149: Supplemental Brief of the

United States in Support of Extension of Stay Pending Appeal.) In the

Supplemental Brief, in addition to providing reasons why a stay should enter, the

government specifically asked “If the Court is disinclined to continue the stay, the


      2
        This Court has jurisdiction over these appeals pursuant to 18 U.S.C.
§ 3731 which provides in pertinent part:
      An appeal by the United States shall lie to a court of appeals from a
      decision or order, entered by a district court of the United States,
      granting the release of a person charged with or convicted of an
      offense ...

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government asks that any order dissolving the stay provide for reasonable time to

allow the government to move for an emergency stay in the Sixth Circuit.” (R.

149: at 6). At approximately 9:43 p.m. on May 5, 2010 (per the district court

docket sheet), the district court entered an Order Denying the Government’s

Motion for Extension of Stay Pending Appeal. The order did not address the

government’s request for reasonable time to apply for a stay in this Court. The

defendants are scheduled for release today at 11:00 a.m., necessitating the filing of

the instant Emergency Motion for Stay.

                                      FACTS

      Defendants are members of paramilitary or militia group they call the

Hutaree. The Hutaree was infiltrated by an undercover agent, who recorded hours

of conversations of them discussing plans to kill law enforcement officers as part

of a plan to oppose by force the lawful authority of the United States. Defendants

also sought to acquire explosive devices from the undercover agent, and provided

him with a photograph, a schematic, and component parts to produce them.

Defendants planned training for April, 2010, in which they would find a random

individual, hold the individual at gunpoint, and if the individual was non-

compliant, kill him or her. Defendants talked openly of their coming “war” with

the United States government, and on at least one occasion, one defendant spoke

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of killing judges in addition to law enforcement officers. Defendants openly

discussed bombing a police funeral in order to kill large numbers of law

enforcement officers.3 In raids in late March, 2010, agents seized from the various

defendants’ residences large stockpiles of firearms and ammunition and

components for explosive devices. (March 31, 2010, Det. Hrg. Tr. at 32 & 44-46).

Defendants have been charged with Seditious Conspiracy,

      In her release order, the district judge characterized the defendants’

discussions as “hate filled” and “venomous” but Constitutionally protected. (R.

137: Order Granting Release at 3). Although the government believes that is an

incorrect statement of the law, as defendants in fact engaged in conspiratorial

discussions, which are constitutionally unprotected, that issue will be addressed

more fully in its brief on the merits. For present purposes, it is enough to note that

defendants’ statements or intended attacks, bombings, and murders, coupled with

their acquisition of large numbers of firearms and ammunition, belie the district

court’s conclusion that they rebutted the presumption under the Bail Reform Act

that there were no conditions or combination of conditions which could reasonably

assure the safety of the community if defendants were released. 18 U.S.C. §



      There is a police funeral scheduled for May 8, 2010, in the Eastern District
      3


of Michigan.
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3142(e)(3). The conditions imposed by the district court are, the government

believes, ineffective, in practice not what they appear to be, and in at least one

instance contradictory of other release terms.4 For instance, although the district

court ordered “home detention” that term is treated in practice by Pretrial Services

as a curfew that allows the defendants unmonitored released the entire day. The

court appointed third-party custodians, and ordered them to surrender the

custodians’ firearms, but created no mechanism for doing so, and no verification

procedure; Pretrial Services does not accept firearms. In addition, although the

court ordered that no defendant associate with a paramilitary or militia

organization, one defendant was ordered to reside with his wife who admittedly

(as was stated before the district judge) is a member of the Hutaree, which

seemingly will place that defendant in the position of violating one bond condition

to comply with another.




      4
        The government makes this statement based on its discussion with the
district’s Pretrial Services employees. Those facts are not yet in the record, but the
government is working to have them in the record for its brief on the merits.
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                                         ARGUMENT

       THE GOVERNMENT HAS DEMONSTRATED A SUFFICIENT
       BASIS FOR A STAY

       In determining whether to enter a stay, the four factors for consideration are:

“(1) whether the stay applicant has made a strong showing that he is likely to

succeed on the merits; (2) whether the applicant will be irreparably injured absent

a stay; (3) whether issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies.” Hilton v.

Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119 (1987); Michigan Coalition

v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (same).5 “These factors are not

prerequisites that must be met, but are interrelated factors that must be balanced

together.” Griepentrog, 945 F.2d at 153, citing In re Delorean Motor Co., 755

F.2d 1223 (6th Cir. 1985).

       1.      Likelihood of the Government’s Success on Appeal

       The first factor to consider is the likelihood that the government will prevail

on appeal. “To justify the granting of a stay, however, a movant need not always

establish a high probability of success on the merits.” Griepentrog, 945 F.2d at



       5
         Of course, in the context of a bail appeal, the questions of harm to the moving party (the
government) and the public interest in granting the stay – the second and fourth factors – largely
overlap.

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153 (citations omitted). “The probability of success that must be demonstrated is

inversely proportional to the amount of irreparable injury plaintiffs will suffer

absent the stay. Simply stated, more of one excuses less of the other.” Id.

(citations omitted). Nonetheless, the party seeking a stay “is always required to

show more than the mere ‘possibility’ of success on the merits. For example, even

if a movant demonstrates irreparable harm that decidedly outweighs any potential

harm to the defendant if a stay is granted, he is still required to show, at a

minimum, ‘serious questions going to the merits.’” Id. at 153-154 (citations

omitted).

      Magistrate Judge Scheer, after two days of proceedings, found that no

condition or combination of conditions was sufficient to permit release as to eight

of the defendants; Magistrate Judge Paul Cherry in the Northern District of

Indiana similarly concluded after a hearing that Defendant Piatek should not be

released. The district court found, after two days of proceedings, that the

defendants were eligible for release, but only after imposition of a significant

number of conditions. Thus, it appears that this case presents at most a close

question for pretrial release. Two judicial officers found no set of combinations

which would justify release.




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      The district court did not conclude that the defendants were not, in fact,

dangerous; rather, it released the defendants only upon the imposition of extra

supervision and substantial restrictions on their liberty and their access to firearms.

Moreover, the district court did not appear to fully consider the evidence

corroborating that the defendants were not merely engaging in “hate-filled”

speech, but had taken and were taking actions in accordance with it, for example:

acquiring large stockpiles of firearms and ammunition; seeking to acquire

explosive devices; planning to conduct training in which a member of the public

would be put on the ground at gun-point, and if non-compliant, would be shot; and

seeking to obtain explosive devices – including by providing a schematic and

photograph, as well as some of the component parts, of the desired devices to the

undercover agent, who they believed would be able to produce those items for

them. (March 31, 2010, Det. Hrg. Tr. at 32 & 44-46).

      For these reasons, we submit that we have met the standard for showing

likelihood of success on the merits.

      2.     Whether the Government Would Be Irreparably Injured If the Stay Is

Denied

      The second factor requires the Court to consider if the government would be

irreparably injured if the stay is denied. We submit that the government – i.e., the

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people – would be so harmed if our request for an extension of the present stay is

denied because, if the defendants were to flee or to cause even a fraction of the

harm they have repeatedly and fervently spoken of and planned for, no ruling by

the Sixth Circuit could undo that damage.

       3.     Whether a Stay Would Substantially Harm the Defendants

       If the defendants’ detention is in fact not legally justified, and if such

detention is nevertheless maintained during the pendency of an appeal, there is no

question that the defendants would be harmed. See, e.g., Hilton v. Braunskill, 481

U.S. 770 at 777-778 (interest of successful habeas petitioner in release pending

appeal is “always substantial”). However, as the Supreme Court has recognized,

“the Government’s regulatory interest in community safety can, in appropriate

circumstances, outweigh an individual’s liberty interest.” Salerno v. United

States, 481 U.S. 739, 748, 107 S.Ct. 2095 (1987) (upholding the constitutionality

of the Bail Reform Act). In enacting the Bail Reform Act, Congress balanced the

interests involved, and determined that in a case such as this it should be presumed

that the defendants are not entitled to pretrial release. See 18 U.S.C. §§

3142(e)(3)(B) and 3142(e)(3)(B).6


       6
        Title 18 U.S.C. § 3142(e)(3)(B) incorporates 18 U.S.C. § 924(c), charged in Counts Four
and Five. Title 18 U.S.C. § 3142(e)(3)(C) incorporates any offense listed in section
2332b(g)(5)(B), which includes the weapons of mass destruction charge contained in Count Two.

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      The Sixth Circuit is statutorily bound to determine this appeal promptly.

See 18 U.S.C. § 3145(c). Thus, while this factor does indeed carry some weight

for the defendants, we submit that it is not as substantial as the factors weighing in

the government’s favor.

      4.     The Public Interest

      The public’s interest, at this stage of the proceedings, is that set forth in the

Bail Reform Act: to be reasonably assured that the defendants do not pose a risk of

harm to any person or the community, and do not pose a risk of flight. See 18

U.S.C. § 3142(b); Michigan Coalition v. Griepentrog, 945 F.2d at 155 (public

interest in safety was goal of environmental statute at issue there).

      In addition, as mentioned in Section 2, the public interest would be harmed

if the defendants were released prior to a ruling by this Court, because any harm

committed by the defendants during their release (whether violence or flight)

could not be undone. Moreover, the district court noted the public interest in

maintaining detention as the sole basis for entering the limited stay (now

dissolved). See R. 140: Order at 2.




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                                  CONCLUSION

      For the reasons stated, the government respectfully requests that the Court

enter a stay of defendants’ release pending resolution of the merits of the appeal.

                                              Respectfully submitted




                                              Respectfully submitted,
                                              BARBARA L. McQUADE
                                              United States Attorney


                                              RONALD W. WATERSTREET
                                              Assistant U.S. Attorney

                                              JOSEPH L. FALVEY
                                              Assistant U.S. Attorney

Dated: May 6, 2010




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                           CERTIFICATE OF SERVICE

       I hereby certify that on May 5, 2010, I electronically filed the foregoing
document with the Clerk of the Court using the ECF system which will send
notification of such filing to the following:

                                 William W. Swor, Esq.
                                 Richard M. Helfrick, Esq.
                                 James C. Thomas, Esq.
                                 Michael A. Rataj, Esq.
                                 Randall C. Roberts, Esq.
                                 Mark A. Satawa, Esq.
                                 Henry M. Scharg, Esq.
                                 Christopher M . Seikaly, Esq.
                                 Arthur Weiss, Esq.




                                              s/Ronald W. Waterstreet
                                              Assistant United States Attorney




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