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United States v. Allen

United States District Court, D. Colorado

May 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT TIMOTHY ALLEN, Defendant.

          OPINION AND ORDER AFFIRMING DETENTION ORDER

          MARCIA S. KRIEGER SENIOR JUDGE

         THIS MATTER comes before the Court pursuant to Mr. Allen's Motion for Writ of Habeas Corpus (# 37), which the Court has construed as a motion seeking review of the Magistrate Judge's December 18, 2018 detention order (# 20). The factual record consists of an incomplete[1] transcript of the December 17, 2018 bond hearing (# 41), supplemented by the parties' proffers of additional factual material (# 42, 45), and Mr. Allen's oral statements at a hearing on March 28, 2019 (# 38). More recently, Mr. Allen has filed a Motion for Pretrial Release (# 51), raising similar issues and arguments.

         FACTS

         On May 10, 2016, Mr. Allen was charged in a one-count Indictment (# 1) with damaging public lands in violation of 18 U.S.C. § 1361. The Government represents that its evidence would show that, beginning in or about July 2013, Mr. Allen engaged in unauthorized mining activity on BLM land in Saguache County, Colorado. BLM rangers made contact with Mr. Allen on several occasions, informing him that unauthorized mining on public lands was prohibited and issuing him written orders to cease his activities, but Mr. Allen refused to do so. Mr. Allen's unauthorized activities continued into at least May 2014.

         Upon Mr. Allen's indictment in May 2016, a summons (# 3) was issued, directing Mr. Allen to appear before a Magistrate Judge on May 18, 2016. The Gunnison County Sheriff's Office contacted Mr. Allen for the purpose of serving the summons and requested that Mr. Allen meet with the Sheriff on May 11, 2016. Mr. Allen did not appear, but his wife[2] met with the Sheriff's Office on that date and informed them that Mr. Allen questioned the constitutionality of the summons. A second meeting was held the following day. Once again, Mr. Allen did not appear but his wife did. A Special Agent of the BLM was present and explained the nature of the summons to Mrs. Allen, requesting that Mr. Allen contact the Agent to facilitate service of the summons. Mr. Allen did not do so and the summons remained unserved as of the May 18 court date (# 4).

         The Magistrate Judge reset Mr. Allen's initial appearance for May 26, 2016 and re-issued the summons for that date. The Agent promptly left a voicemail for Mr. Allen, advising of the new court date and the need to complete service of the summons. Mr. Allen's wife called the Agent back, indicating that Mr. Allen refused to meet with the Agent because he was afraid that he would be arrested if he did so. The Agent advised Mrs. Allen that Mr. Allen would not be arrested if he accepted service of the summons, but that an arrest warrant would likely be the next step if he refused the summons. On May 19, 2016, Mrs. Allen called the Agent back and informed him that Mr. Allen would not accept service of the summons. The Magistrate Judge held the initial appearance as scheduled on May 26, 2016; Mr. Allen did not appear and a warrant was issued for Mr. Allen's arrest (# 7).

         It appears that there was some reluctance on the part of the Gunnison County Sheriff and/or the BLM Special Agent to attempt the arrest of Mr. Allen. The Sheriff advised that Mr. Allen had once referred to “Lexington and Concord” - the initial exchange of gunfire that commenced the Revolutionary War - as a way to “settle the issue of the arrest warrant.” Mr. Allen was known to be a proficient marksman and to harbor anti-government beliefs. On October 31, 2016, the Special Agent contacted Mr. Allen's wife in a Wal-Mart parking lot in Gunnison, Colorado, requesting her assistance in finding a peaceful way to serve the warrant and effectuate Mr. Allen's arrest. Mrs. Allen emphasized that Mr. Allen was a “good hunter, ” confirmed that she and Mr. Allen “are Constitutionalists who believe the federal government is corrupt, ” and that they had placed a cable across their driveway to prevent uninvited persons from accessing their property. Mrs. Allen asked the Agent that, if authorities intended to arrest Mr. Allen at his home, that they use the pastor of the local church as a ruse to remove Mrs. Allen from the property first, apparently a reference to her fear that Mr. Allen might resort to violence to prevent his own arrest. The Agent emphasized to Mrs. Allen that authorities did not intend to attempt to arrest Mr. Allen at his residence so as to avoid any violent encounter.

         At an unspecified point in time, Mr. Allen placed an advertisement in the local newspaper. The advertisement asked “Does the U.S. Bureau of Land Management authority fall within the powers delegated by the U.S. Constitution to the U.S. federal government?” and listed Mr. Allen's name and phone number. An undercover law enforcement officer called the number and spoke to Mr. Allen. During that conversation, Mr. Allen acknowledged his awareness of the pending warrant for his arrest and stated that he will not go into town for fear of being arrested. He told the undercover officer that he had gone to Nevada to help Clive Bundy, referencing a situation in which numerous protestors engaged in an armed standoff with law enforcement officers. He also told the officer that he had been practicing his shooting, that he and his wife “live off the grid” and on top of a ridge “where no one can get to them, ” that he “was not coming out of here alive, ” and that federal agents “use the local Sheriff's Departments” to serve warrants “because they don't want to bleed themselves.” On August 18, 2017, Mr. Allen's wife passed away unexpectedly. The Gunnison County Sheriff and coroner went to Mr. Allen's home to retrieve the body. At that time, the Sheriff spoke to Mr. Allen about the pending warrant, and Mr. Allen responded again that he would not turn himself in. Because of the circumstances, the Sheriff chose not to arrest Mr. Allen at this time. The Sheriff spoke with Mr. Allen again in October 2017, and Mr. Allen again refused to turn himself in on the warrant.

         At some point in time, Mr. Allen spoke by phone with Mr. Chaffin, the Assistant United States Attorney prosecuting this case. Mr. Chaffin offered to vacate the warrant and schedule an initial appearance in court for Mr. Allen and to not seek detention if Mr. Allen would agree to appear. Mr. Chaffin warned that if Mr. Allen did not agree, the Government would likely seek detention if Mr. Allen was subsequently arrested on the warrant. Although Mr. Chaffin gave Mr. Allen an opportunity to contact the U.S. Marshal to schedule an appearance in court, Mr. Allen never did so.

         In the fall of 2018, the government conducted surveillance of Mr. Allen's property and spoke to a source familiar with Mr. Allen. The source advised that Mr. Allen had cables strung across his driveway to block entrance to his property and that he barricaded the entry door to his residence. The source identified a blue jeep that occasionally visited the property as belonging to Mr. Allen's in-laws, and indicated that Mr. Allen would occasionally drive the in-laws to medical appointments in the jeep. Authorities obtained a warrant to place a tracking device on the jeep. In or about December 2018, authorities tracked the jeep to a shopping area in Gunnison. Marshals approached the jeep, ascertained that Mr. Allen was in or near it along with his in-laws, and advised him that he was under arrest. Mr. Allen resisted, struggling with the Marshal who was attempting to take him into custody, and Mr. Allen's father-in-law assaulted the BLM agent who was assisting. Both Mr. Allen and his father-in-law were eventually taken into custody.

         With a single exception, Mr. Allen's own submissions do not dispute the facts discussed above. Mr. Allen recounts the circumstances of his arrest somewhat differently. He states that he was walking his mother-in-law back to the jeep after a medical appointment when “plainly clothed gentlemen step[ped] out from behind a tree and sa[id] ‘Mr. Allen, it's all over.'” Mr. Allen acknowledges that he “attempted to run, ” but was tackled and injured in the process. He denies fighting or resisting the Marshal arresting him and denies any knowledge of any confrontation between his father-in-law and any of the authorities attempting the arrest.

         Mr. Allen identifies certain reasons why he believes that continued detention is inappropriate. He notes that, because he is proceeding pro se, he is required to conduct his own legal research and review his own discovery materials, and that that process is substantially more difficult while incarcerated. He states that computers at the Jefferson County jail cannot reliably access the electronic versions of the discovery materials and that if he possesses paper copies of discovery records, he will not be able to review them in private without other inmates nearby.

         Mr. Allen also notes that his elderly in-laws are limited in their ability to drive and maintain a household and that they rely on Mr. Allen to perform various essential tasks for them, including shopping, cooking, and driving them to medical appointments. Mr. Allen's mother-in-law tendered her own letter to the Court attesting to the same facts.

         Mr. Allen acknowledges “concerning statements” attributed to him in the Government's proffer, but states that he was “not in the right frame of mind” in late 2017, owing to grief over the death of his wife. He also notes that he was not represented by counsel at the time and that he was “unreasonably suspicious of what might happen to him” if he turned himself in. He states that, now having been ...


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