Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 1
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA 6th Cir. No. 10-1618
Plaintiff - Appellant,
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
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
The Solicitor General has authorized the appeal.
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 2
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
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
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 3
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.
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
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 4
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
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 5
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.
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.
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 6
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
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
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 7
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
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.
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 8
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
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
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 9
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
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.
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 10
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.
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 11
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.
BARBARA L. McQUADE
United States Attorney
RONALD W. WATERSTREET
Assistant U.S. Attorney
JOSEPH L. FALVEY
Assistant U.S. Attorney
Dated: May 6, 2010
Case: 10-1618 Document: 006110620601 Filed: 05/06/2010 Page: 12
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