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United States v. Avenarius

United States District Court, N.D. Iowa, Eastern Division

April 29, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
HEATHER AVENARIUS, Defendant.

ORDER FOR PRETRIAL DETENTION

JON STUART SCOLES, Magistrate Judge.

On the 28th day of April, 2015, this matter came on for hearing on the Government's request to have the Defendant detained prior to trial. The Government was represented by Assistant United States Attorney Justin Lightfoot. The Defendant appeared personally and was represented by her attorney, Chad R. Frese.

I. RELEVANT FACTS AND PROCEEDINGS

On April 23, 2015, Defendant Heather Avenarius was charged by Indictment (docket number 3) with conspiracy to manufacture a controlled substance near a protected location (Count 1), possession of pseudoephedrine (Count 3), and false declaration before grand jury (Count 5). At the arraignment on April 24, 2015, Defendant entered a plea of not guilty and trial was scheduled before Chief Judge Linda R. Reade on June 22, 2015.

Officer Chad Leitzen of the Dubuque Police Department testified regarding the circumstances underlying the instant charges. On July 4, 2014, Officer Nick Jobgen accompanied Megan Calendar to the home of Benjamin Heiderscheit (a co-defendant in this case) to retrieve personal belongings. Apparently, Calendar had previously lived with Heiderscheit. Heiderscheit's mother, Judy Heiderscheit, was at the residence and agreed to let Calendar in to retrieve her belongings. Officer Jobgen was not permitted to enter. When Calendar came out of the house, however, she reported to Jobgen that there were several spent one-pot vessels used for the manufacture of methamphetamine, and there was also an odor of methamphetamine manufacturing. Jobgen could also smell the odor outside the house.

Two years earlier, a search warrant had been obtained for the same residence. At that time, authorities found 108 spent one-pot vessels. Calendar was present when the earlier search warrant was executed, and she claimed responsibility for the one-pot vessels so that Heiderscheit would not "get in trouble." Following the events of July 4, 2014, Officer Leitzen met with Calendar to discuss her observations. Calendar said that Judy Heiderscheit was inside the home and was cleaning up the evidence of meth manufacturing.

As Officer Leitzen was preparing an application for a search warrant for the property, Defendant called and reported that Heiderscheit was not at the residence and that there was "nothing" in the house. Defendant claimed that Calendar was simply trying to get Heiderscheit into trouble. A search warrant was obtained and officers found more than 40 spent one-pot vessels used to manufacture methamphetamine, and other items consistent with the manufacture of methamphetamine. In addition, officers found evidence that Heiderscheit was living there, and found children's toys throughout the residence.

A search of the "pseudo logs" for Defendant and Heiderscheit revealed excessive purchases of pseudoephedrine. In addition, officers obtained text messages (Government's Exhibit 1) showing Defendant was attempting to obtain pseudoephedrine from others. Kaleena Everett, Krystle Wall, and Teeya Seeley all told investigators that they had purchased pseudoephedrine and then sold it to Defendant.

When officers attempted to arrest Defendant on the federal warrant, she initially stopped her vehicle, but then drove off, resulting in a "low speed pursuit." A syringe was found in the center console of Defendant's vehicle, containing what appeared to be blood and meth. After being Mirandized, Defendant admitted providing boxes of pseudoephedrine to Heiderscheit so they could be "added to the mix." Defendant admitted providing pseudoephedrine between May 2014 and February 2015, although she told officers that she provided "at most five boxes per month."

According to the pretrial services report, Defendant is 34 years old. She was born and raised in Dubuque. She has never been married, but has five children with two different men. The oldest two children (ages 13 and 14) reside with Defendant's mother in Dubuque. The three younger children (ages 5, 4, and 2) live with their father in Dubuque. Prior to her arrest, Defendant was living with Heiderscheit. (A warrant was issued for Heiderscheit's arrest and at the time of the instant hearing he was still at-large.) If released, Defendant said she would live with her mother. Defendant's mother told the pretrial services officer, however, that she "does not trust" Defendant and she "is not welcome to reside at her home."

Defendant has been unemployed for nearly two years. She was financially supported by her mother and Heiderscheit, with her only source of income being food stamps. She is in good physical health, but was committed to the psychiatric unit at Mercy Hospital for several days in 2005 due to substance abuse issues. Defendant admitted using marijuana on a daily basis for most of her life, with her last use approximately three days prior to her arrest. She has also used methamphetamine (off-and-on) since age 15 and told the pretrial services officer that for the past two years she has used approximately.25 grams of methamphetamine per day, with her last use being two days prior to her arrest.

While she has not been previously convicted of a felony, Defendant has a number of misdemeanor convictions, including driving while suspended (twice), possession of a controlled substance, criminal mischief in the fifth degree, harassment in the third degree, theft in the fourth degree, unlawful possession of a prescription drug, possession of drug paraphernalia, and theft in the fifth degree. Defendant has failed to appear for court proceedings on at least three occasions, and was placed on absconder status at least once. Warrants were issued for her arrest on six occasions due to her failure to appear or for a violation of probation. She has had her probation revoked and has been found in contempt of court twice.

II. DISCUSSION

The release or detention of a defendant pending trial is governed by the Bail Reform Act of 1984, 18 U.S.C. ยง 3142. In United States v. Salerno, 481 U.S. 739 (1987), the United States Supreme Court upheld the constitutionality of the Bail Reform Act of 1984, while noting that "[i]n our society liberty is the norm, and ...


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