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United States v. FEI GUO Tang

United States District Court, E.D. Kentucky, Central Division, Frankfort

June 12, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FEI GUO TANG, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove, Judge

         On March 19, 2019, United States Magistrate Judge Matthew A. Stinnett held a detention hearing for Defendant Fei Guo Tang. [R. 16.] Judge Stinnett then determined Mr. Tang should be detained pending trial pursuant to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141, et seq. [R. 18.] Now, Mr. Tang has requested revocation of that order pursuant to 18 U.S.C. § 3145(b) by the undersigned. [R. 19.] Because no conditions or combination of conditions for release would reasonably assure the safety of the community, the Court DENIES Mr. Tang's motion and Mr. Tang shall remain in custody pending trial.

         I

         A

         Mr. Tang was initially indicted on March 7, 2019, for bringing in and harboring aliens in violation of 8 U.S.C. §1324, paying his employees less than minimum wage in violation of 29 U.S.C. §§ 206 and 215-16, failure to pay his employees overtime in violation of 29 U.S.C. §§ 207 and 215-16, and possession of child pornography in violation of 18 U.S.C. § 2252. [R. 1.] After Judge Stinnett's detention order, on May 22, 2019, the Grand Jury returned a superseding indictment, adding five counts of receipt of child pornography and one count of distribution of child pornography, in violation of 18 U.S.C. § 2252. [R. 23.] Additionally, the superseding indictment alleges Mr. Tang obstructed justice, in violation of 18 U.S.C. § 1512, by instructing his employee to lie before the grand jury. Id. at 5-6.

         Consistent with the Court's local practice, Magistrate Judge Matthew A. Stinnett presided over Mr. Tang's initial appearance, arraignment, and detention hearing. [R. 11; R. 16; R. 28; R. 31.] Judge Stinnett determined detention was required in this case, and imposed detention pending trial. [R. 18.] Mr. Tang challenged this detention order and requests that this Court, after a de novo review of the record and an independent detention review hearing, release Mr. Tang pending trial. [R. 19.]

         B

         At the time of the detention hearing, none of Mr. Tang's alleged crimes required the presumption of detention. 18 U.S.C. § 3142(e)(3). However, after the addition of child pornography charges in the superseding indictment, defense counsel conceded during a hearing before the undersigned that this case now presents a presumption of detention. 18 U.S.C. § 3142(e)(3)(E). The findings in the detention order were based on the testimony of Department of State Special Agent Tracy Lunsford, and Mr. Tang introduced no witnesses. [R. 17.] Because there was no presumption of detention, Judge Stinnett did not determine whether Mr. Tang rebutted such a determination, only that he posed a risk of flight and a risk of danger to the community. [R. 18.] At the detention review hearing before the undersigned, Special Agent Lunsford again testified, and this time, Mr. Tang called as a witness his daughter, Wendy Tang. [R. 38.]

         After determining that Mr. Tang was a flight risk, Judge Stinnett found that the factors set forth in 18 U.S.C. § 3142(g) lean in favor of detention. [R. 18 at 7.] While Judge Stinnett determined that his employment-related charges were insufficient to warrant detention, Mr. Tang's charge of possession of child pornography was a pro-detention factor under § 3142(g)(1). Offenses involving a minor victim are enumerated as offenses where the nature and circumstances of the charged crime weigh in favor of detention. § 3142 (g)(1).

         Judge Stinnett did not make an explicit determination as to whether § 3142(g)(2) supported detention but noted that his alleged crimes involved minor victims. Id. at 5-6. Additionally, testimony at the detention hearing suggested that Mr. Tang asked his employees to lie during Grand Jury proceedings. Id.

         As to Mr. Tang's history and characteristics under § 3142(g)(3), Judge Stinnett found this factor to be “neutral.” Id. at 6. Nothing in Mr. Tang's history suggests he is violent or has substance abuse issues. Id. However, Judge Stinnett notes that Mr. Tang does have a criminal history, including a 2009 conviction for harboring illegal aliens. Id. His indictment for the same activity a decade later suggests a disregard for the law. Id.

         Finally, Judge Stinnett found that § 3142(g)(4) supported detention of Mr. Tang. Id. at 6-7. The allegations of child pornography and of attempts to obstruct justice concerned Judge Stinnett, and he determined these allegations posed a danger to both the community and the judicial process. Id.

         Ultimately the § 3142 factors “combine to indicate significant danger risks of a serious nature, ” and these danger risks to the community are what the Magistrate Judge relied on to justify detention pending trial. Mr. Tang, through counsel, now seeks review of Judge Stinnett's findings, and the Court considers the matter de novo. See, e.g., United States v. Crane, No. 5:15-005-DCR, ...


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