United States District Court, N.D. Iowa, Central Division
For U.S. Probation, Interested Party: uspNotify, LEAD ATTORNEY.
For Dustin Allen Dimmick, Defendant: Jim K McGough, LEAD ATTORNEY, Omaha, NE.
For USA, Plaintiff: Shawn Stephen Wehde, LEAD ATTORNEY, U.S. Attorney's Office, Sioux City, IA.
LEONARD T. STRAND, UNITED STATES MAGISTRATE JUDGE.
This case came before me on January 28, 2015, for hearing on defendant Dustin Dimmick's motion (Doc. No. 12) for release. Assistant United States Attorney Shawn Wehde appeared on behalf of the plaintiff (the Government). Dimmick appeared in person and with his attorney, Jim McGough. Neither party called witnesses but Dimmick proffered information through counsel. No exhibits were offered. I have also considered the information contained in the Pretrial Services Report (Doc. No. 15).
II. PROCEDURAL HISTORY
On July 24, 2014, Dimmick was charged by indictment (Doc. No. 2) with one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). On December 10, 2014, the Government filed a motion (Doc. No. 6) for writ of habeas corpus ad prosequendum (Writ), as Dimmick was in the custody of the South Dakota Department of Corrections (SDDC). I entered an order (Doc. No. 8) granting the motion and the Writ (Doc. No. 8-1) was issued the same day. On January 13, 2015, Dimmick was placed into the custody of the United States Marshals Service. Doc. No. 9. According to the terms of the Writ, Dimmick is to be returned to the SDDC " upon completion of all proceedings and processing of this cause." Doc. No. 8-1.
Dimmick's initial appearance and arraignment in this case occurred on January 15, 2015. At that time, trial was set for March 2, 2015, and the Government requested that Dimmick be detained in federal custody pending trial. Dimmick, through counsel, requested that he be released from federal custody and returned to SDDC custody because of an upcoming parole hearing. I ordered temporary detention to allow the parties to gather further information about the status of the South Dakota parole proceedings. On January 21, 2015, Dimmick filed his motion (Doc. No. 12) for release, formally requesting that he be returned to the custody of the SDDC. The Government filed a resistance (Doc. No. 13) on January 22, 2015. As noted above, I conducted a hearing on January 28, 2015, and then took the matter under advisement.
Dimmick argues he should be released to the custody of the SDDC. He contends he is soon eligible for a parole hearing in South Dakota but that he must first complete certain treatment programs provided through the SDDC. As such, he requests that I release him from federal custody so he can return to the SDDC, complete these programs and attend his parole hearing.
Dimmick's motion cites no legal authorities. Nor does it describe any legal standard under which I should consider his request for release. Thus, at the beginning of the hearing I asked counsel for both parties to address the legal framework for resolving the motion. Counsel for the Government argued that this situation is effectively no different than any other case in which pretrial detention is in dispute. That is, Dimmick is in federal custody, having been indicted for a federal offense, and the question of whether he remains in federal custody pending trial should be resolved pursuant to the Bail Reform Act, 18 U.S.C. § 3142.
Dimmick's counsel disagreed. He distinguished this situation factually by noting
that Dimmick will not be released, even if he is released from federal custody. In other words, an order releasing him in this case would cause him to be returned to state custody, not freed. Thus, it is Dimmick's position that the usual " risk of flight" and " danger to the community" analyses do not apply. However, Dimmick's counsel acknowledged that he is not aware of any legal ...