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United States v. Lester

United States District Court, S.D. West Virginia, Bluefield

March 20, 2018

UNITED STATES OF AMERICA
v.
GREG A. LESTER

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         Before the court is the government's appeal of the magistrate judge's order releasing Greg Lester on bond until trial subject to additional conditions of release. See ECF No. 170. For reasons stated herein and on the record at the March 14, 2018 hearing, the court REVERSES Magistrate Judge Aboulhosn's Order (ECF No. 169), and ORDERS that Greg Lester be detained pending trial.

         I. BACKGROUND

         Greg Lester, among others, was indicted on November 15, 2017, and named in 10 counts alleging that he engaged in mail fraud, conspiracy to commit arson and launder money, and unlawful monetary transactions. ECF No. 1. At the initial arraignment on November 21, 2017, the magistrate judge released Greg Lester on an unsecured bond subject to the conditions of release imposed by this court. See ECF Nos. 38, 39.

         Thereafter, Greg Lester violated his conditions of release on January 1 and 3, 2018, by sending email communications to his father and co-defendant, Windel Lester, who was in prison pending trial. These emails violated Greg Lester's Order Setting Conditions of Release, Number 7(g), which stated: “The defendant must avoid all contact, directly, or indirectly, with any person who is or may be a victim or witness in the investigation or prosecution, including codefendants.” ECF No. 39.

         While the substance of these emails appears unrelated to the charges in the indictment, Greg Lester initiated this email exchange and acknowledged within the email:

our bond restrictions say we're not supposed to contact any co defendants at all. My probation officer even made it abundantly clear I was not to contact a co defendant at all . . . I personally don't see why it would matter as long as we don't talk about the case, but my probation officer is strictly by the book.

See ECF No. 123-1. A string of emails followed, consisting of three more emails sent by Greg Lester and four emails sent by Windel Lester. Id.

         On January 9, 2018, the Probation Office of this court filed a Petition for Action on Conditions of Pretrial Release indicating this violation. ECF No. 108. Following a hearing before Magistrate Judge Aboulhosn on January 16, 2018, defendant's bond was revoked as a result of this conduct and he was detained. ECF No. 123. The Order stated, “that the Defendant had no regard whatsoever for the Conditions of Release set forth by this Court.” Id.

         On February 21, 2018, the United States obtained a Second Superseding Indictment. ECF No. 142. At Greg Lester's arraignment, his counsel orally moved for reconsideration of the magistrate judge's order revoking bond. See ECF No. 152. After a hearing on March 7, the magistrate judge granted Greg Lester's motion and ordered his release. ECF No. 169. The magistrate judge concluded: “there has been a material change in circumstances, namely, the additional hardship placed on Defendant's family due to his spouse being unable to work as a substitute teacher due to the recent cessation of the teacher work stoppage in West Virginia.” Id. at 3.

         The court imposed two additional conditions. First, Greg Lester may not be employed at Lester Homes or any related entities, all owned by Windel Lester. Id. Second, the magistrate judge supplemented Condition of Release, Number 7(g), that Greg Lester previously violated, determining that the defendant would be subject to revocation:

if his spouse, his children residing in or out of the household, and any and all residents of his household have any contact of any kind whatsoever, including verbal or written, with any co-defendant or witnesses. In that regard, the Defendant would have to agree, as a condition of his bond, to permit any and all computers, tablets, phones, smart phones, and similar devices to be examined by the USPO, without advanced notice, to determine if any prohibited communication has occurred. The Defendant would also have to agree that if his wife, his children or any and all residents of his household refuse to allow for their computers, tablets, phones, smart phones, and similar devices to be examined, then the Court will consider that as a violation of this condition of his bond and that he would be subject to revocation of his bond and detention pending the trial of this matter.

Id. The magistrate judge also denied the government's motion to stay the Order. Id. at 4. The government appealed to this court two days later. ECF No. 170. Greg Lester's counsel filed a response in opposition. ECF No. 171.

         On March 14, 2018, the court held a hearing where the parties restated many of the facts included in the magistrate judge's order. See ECF No. 169. The government stressed that a now-ceased teacher's strike or any financial hardship should play no part in the court's determination of whether Greg Lester will comply with the conditions of release. Counsel for defendant argued that while Greg Lester understood his original conditions of release when he violated them, the 55-day period of detention makes Greg Lester fully aware of the gravity of violating a condition of release in the future. Moreover, defendant's counsel argued that because Windel Lester's telephonic and electronic communications from prison are ...


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