Thursday, August 11, 2011
The Case Against Jason Smiekel
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 11 CR 50055
)
JASON W. SMIEKEL )
UNITED STATES’ MOTION FOR REVOCATION
OF ORDER OF PRETRIAL RELEASE
The United States of America, by PATRICK J. FITZGERALD, United States
Attorney for the Northern District of Illinois, moves this court to revoke the order of pretrial
release for defendant Jason W. Smiekel (hereinafter “defendant” or “Smiekel”).
On August 4, 2011, Smiekel was arrested by Special Agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“AFT”). The following morning, August 5, 2011, a
criminal complaint was filed charging Smiekel with using a facility of interstate commerce
in the commission of a murder-for-hire, a violation of 18 U.S.C. § 1958. At Smiekel’s initial
appearance on the criminal complaint on August 5, 2011, the United States moved for
pretrial detention.
The preliminary examination and detention hearing were held on August 10, 2011,
before United States Magistrate Judge P. Michael Mahoney. At the conclusion of the
preliminary examination, Magistrate Judge Mahoney found probable cause, and a hearing
on detention was held. After both the government and defendant submitted oral proffers to
the court, Magistrate Judge Mahoney denied the United States’ motion for pretrial detention
and entered an order granting pretrial release. In addition to the standard conditions of
pretrial release and a $4,500 recognizance bond, Magistrate Judge Mahoney imposed the
following conditions: (1) the defendant must live at the residence of defendant’s mother and
stepfather; (2) his mother, a licensed realtor, is a third-party custodian of the defendant; (3)
the defendant surrender his FOID card and passport; (4) no firearms are allowed in his/his
mother’s residence; (5) he have no contact with any potential witnesses or alleged intended
victims; and (6) he is on “home incarceration” with electronic monitoring at the expense of
the defendant. FN1
At the government’s request, Magistrate Judge Mahoney granted a stay of the release
order until 5:00 p.m. on August 11, 2011.2 For the reasons set forth below, the United States
moves this court to revoke the order granting Smiekel release pending trial.
The Bail Reform Act of 1984
Under the Bail Reform Act of 1984, a defendant is entitled to pretrial release on
execution of a personal recognizance or unsecured appearance bond unless the judicial
officer determines that such release will not assure the appearance of the defendant or will
endanger the safety of any person or the community. 18 U.S.C. § 3142(b). If the court
determines that unsecured release of the defendant would endanger the community or pose
=================================================================
FN1 Magistrate Judge Mahoney stated that under home incarceration Smiekel is not allowed
out of his mother’s house unless for: (1) a medical emergency; (2) a meeting with his criminal
defense counsel or attending federal court; or (3) a meeting with a Pretrial Services Officer.
FN2 The government is unsure whether District Judge Frederick J. Kapala or Senior District
Judge Philip G. Reinhard will conduct the de novo review of the release order. Since no indictment
has yet been returned, no district judge has yet been assigned to the case. For that reason, the United
States will be submitting a copy of this pleading, via email, to both chambers prior to 9:00 a.m. on
August 11, 2011.
=================================================================
an unreasonable risk of flight, it must evaluate whether any conditions of release can
adequately protect against these possibilities. 18 U.S.C. § 3142(c)(1)(B). The court must
detain the defendant without bond if it concludes that no conditions will reasonably
guarantee the defendant’s appearance or the safety of any other person or of the community.
18 U.S.C. § 3142(e). FN3
The Supreme Court has upheld the constitutionality of pretrial detention to protect the
safety of the community observing that “the legislative history of the Bail Reform Act clearly
indicates that Congress did not formulate the pretrial detention provisions as punishment for
dangerous individuals. Congress instead perceived pretrial detention as a potential solution
to a pressing societal problem. There is no doubt that preventing danger to the community
is a legitimate regulatory goal.” United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095,
2101 (1987).
The Charge Against Smiekel
Smiekel has been charged with using a facility of interstate commerce, a cellular
telephone, in a murder-for-hire, in violation of 18 U.S.C. § 1958. Details of the offense are
summarized in the criminal complaint. The allegations in the complaint are adopted by the
government for purposes of this Court’s de novo review of the detention order. At the
hearing on this motion, the government will submit a supplementary oral evidentiary proffer
in support of this motion.
==============================================================
FN3 At the detention hearing before Magistrate Judge Mahoney, the government did not claim
that Smiekel is a flight risk or that conditions could not be fashioned that would reasonably assure
his appearance as required. The government’s sole basis for requesting review of the order of
release relates to the danger to any person or the community that would be posed by Smiekel’s
release.
===================================================================
Argument in Support of Detention
There are numerous factors that are to be considered by the court in determining
whether there are conditions of release that will reasonably assure “the safety of any other
person and the community.” 18 U.S.C. § 3142(g).
A. The Nature of the Offense Supports Detention
The first factor that this court is directed to consider is the nature and circumstances
of the offense charged, “including whether the offense is a crime of violence or involves a
narcotic drug.” Murder-for-hire is a “crime of violence.” As such, this factor weighs in
favor of pretrial detention.
B. The Weight of the Evidence Supports Detention
The second factor that this court is directed by statute to consider is the weight of the
evidence against the defendant. The government can only characterize the evidence of guilt
as “extremely strong.” As set forth in the criminal complaint, during the investigation, the
ATF Special Agent, posing as a “hit-man,” recorded his meetings with the defendant. The
government has both audio and video recordings of the defendant. The defendant is recorded
giving $1,500 in cash as a down payment to the undercover agent. The defendant is also
recorded giving $7,000 in cash to the undercover agent and stating that he trusted the agent
to complete the job. The defendant is on tape discussing how he will pay the remainder of
the fee (the total cost of murdering the intended victim was to be $20,000).
The intent of the defendant to have the victim killed (§ 1958 requires the intent that
a murder be committed) is further buttressed by the defendant’s prior efforts to have the
intended victim killed. This factor, the weight of the evidence against the defendant,
particularly when combined with the defendant’s prior attempts to have the intended victim
killed, strongly supports detention.
C. The Nature and Seriousness of the Danger Supports Detention
The final factor to be considered is “the nature and seriousness of the danger to any
other person or the community that would be posed by the person’s release.” 18 U.S.C. §
3142(g)(4). As is set forth in the criminal complaint and as will be more fully referenced in
the government’s oral evidentiary proffer, the defendant is steadfastly set on having the
intended victim murdered – not by the defendant personally, but by someone he hires. The
defendant’s efforts to have someone murdered demonstrates the “nature and seriousness of
the danger” to the intended victim of the murder-for-hire. The defendant has approached at
least 6 individuals, attempting to have the intended victim murdered.
i. First Murder-for-Hire Attempt (February 2011)
The first time was in February of 2011 when the defendant approached an as yet
unidentified individual seeking a “hit-man.” That individual put the defendant in contact
with two male individuals (hereinafter the “two hit-men”). Smiekel paid a total of $8,000
to the two hit-men to murder the intended victim. Instead of completing the murder, the two
hit-men kept the money and figuratively walked away.
ii. Second Murder-for-Hire Attempt (April-June 2011)
In late April to early May 2011, the defendant approached another individual, seeking
to be connected with a hit-man. Smiekel provided a photograph and personal details of the
intended victim, including the residence, vehicle, and employment of the intended victim.
Even after the individual told the defendant that it was not worth it and not to proceed with
the murder, the defendant asked that the individual at least consider it.
iii. Third Murder-for-Hire Attempt (July 27-August 4, 2011)
The third attempt, with the defendant involving the cooperating individual and the
undercover ATF Special Agent, is set forth in the criminal complaint. It ends with the
defendant paying $7,000 in cash to the Special Agent and the defendant then being arrested.
D. No Other Reasonable Alternatives
Finally, the various conditions of release that were imposed by Magistrate Judge
Mahoney are simply inadequate. Electronic monitoring, even when coupled with home
incarceration, is simply not an effective means of insuring the safety of the community and
other persons. United States v. Oreno, 986 F.2d. 628, 632 (2nd Cir. 1993) (release conditions
that included multi-million dollar bonds, home detention, electronic monitoring, restricted
visitation privileges, consent searches of their homes, and voluntary wiretapping of their
telephones were insufficient as electronic surveillance systems can be circumvented and
monitoring equipment rendered inoperative) (citing United States v. Gotti, 776 F.Supp. 666,
672-73 (E.D.N.Y. 1991)). See also United States v. Masotto, 811 F.Supp. 878, 884,
(E.D.N.Y. 1993) (“[I]n the case of ‘dangerous defendants’ the Bail Reform Act does not
contemplate the type of conditions suggested by this Court and that, even if it did, the
conditions would not protect the public or the community, given the ease with which many
of them may be circumvented.”)
As has been observed in this District, “even if the [electronic monitoring] system was
foolproof, it alone would not be sufficient to protect witnesses and the community from these
defendants.” United States v. Infelise, 765 F.Supp. 960, 964 (N.D. Ill. 1991). This is so
because electronic monitoring systems are “reactive systems” that “don’t prevent anybody
from doing anything.” Id. at 963 (quoting then Magistrate Judge Gottschall with approval).
Home incarceration and electronic monitoring can do nothing to prevent Smiekel from
continuing his fixation on having the intended victim killed. Smiekel will continue to have
access to the same instrumentality, cellular telephones and now a land-line telephone (which
must be present in order for electronic monitoring to work) which he repeatedly used before
to make arrangements for the murder. He will continue to have access to other means of
communication (texting, emails, internet, etc.). He will also have the ability to arrange for
meetings at his mother’s house. The government’s evidence is not that Smiekel intended to
personally kill the intended victim – rather, the evidence shows that he repeatedly and
persistently sought out others to kill the intended victim. Simply placing the defendant at
home will do nothing to prevent Smiekel from again attempting to obtain a hit-man.
Any argument that Smiekel has somehow gotten a “wake-up call” or “reality check”
and will now stop trying to arrange for a murder is of little comfort to the intended victim.
Such a tenuous argument is also refuted by the defendant’s repeated attempts to arrange for
the murder. Although thwarted in February of 2011 by the two purported “hit men”
scamming him out of his $8,000, the defendant persisted. In April or early May of 2011, he
again asked another individual if that person would be able to arrange for someone to kill the
intended victim.4 Even after the individual tried to dissuade the defendant from proceeding,
Smiekel insisted that the individual “at least think about it.” Then, the same day that the
intended victim receives confirmation from the ARDC that his complaint against Smiekel
had been received and that the ARDC had asked Smiekel for a response, Smiekel approaches
the cooperating individual identified in the complaint, again seeking to hire someone to
murder the intended victim. This Court should not gamble that the defendant’s obsession
with having the intended victim killed will somehow be kept in check when the defendant
will be in a place where he will have access to use the same facilities as he used before to
attempt to arrange for a murder-for-hire.
===============================================================
FN4 As noted in the evidentiary proffer, Smiekel began with wanting to “scare” the intended
victim before quickly progressing to “hurt,” “break the legs” of, and finally to murder.
================================================================
CONCLUSION
For the foregoing reasons, the United States submits that there are no conditions of
release that can guarantee the safety of any other person and of the community. Accordingly,
the United States respectfully moves this court to revoke the order of release entered for
defendant Smiekel and order that he be detained pending trial.
Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
BY: /s/ John G. McKenzie
JOHN G. McKENZIE
Assistant United States Attorney
308 West State Street - Room 300
Rockford, Illinois
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
UNITED STATES OF AMERICA )
)
v. ) No. 11 CR 50055
)
JASON W. SMIEKEL )
UNITED STATES’ MOTION FOR REVOCATION
OF ORDER OF PRETRIAL RELEASE
The United States of America, by PATRICK J. FITZGERALD, United States
Attorney for the Northern District of Illinois, moves this court to revoke the order of pretrial
release for defendant Jason W. Smiekel (hereinafter “defendant” or “Smiekel”).
On August 4, 2011, Smiekel was arrested by Special Agents of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“AFT”). The following morning, August 5, 2011, a
criminal complaint was filed charging Smiekel with using a facility of interstate commerce
in the commission of a murder-for-hire, a violation of 18 U.S.C. § 1958. At Smiekel’s initial
appearance on the criminal complaint on August 5, 2011, the United States moved for
pretrial detention.
The preliminary examination and detention hearing were held on August 10, 2011,
before United States Magistrate Judge P. Michael Mahoney. At the conclusion of the
preliminary examination, Magistrate Judge Mahoney found probable cause, and a hearing
on detention was held. After both the government and defendant submitted oral proffers to
the court, Magistrate Judge Mahoney denied the United States’ motion for pretrial detention
and entered an order granting pretrial release. In addition to the standard conditions of
pretrial release and a $4,500 recognizance bond, Magistrate Judge Mahoney imposed the
following conditions: (1) the defendant must live at the residence of defendant’s mother and
stepfather; (2) his mother, a licensed realtor, is a third-party custodian of the defendant; (3)
the defendant surrender his FOID card and passport; (4) no firearms are allowed in his/his
mother’s residence; (5) he have no contact with any potential witnesses or alleged intended
victims; and (6) he is on “home incarceration” with electronic monitoring at the expense of
the defendant. FN1
At the government’s request, Magistrate Judge Mahoney granted a stay of the release
order until 5:00 p.m. on August 11, 2011.2 For the reasons set forth below, the United States
moves this court to revoke the order granting Smiekel release pending trial.
The Bail Reform Act of 1984
Under the Bail Reform Act of 1984, a defendant is entitled to pretrial release on
execution of a personal recognizance or unsecured appearance bond unless the judicial
officer determines that such release will not assure the appearance of the defendant or will
endanger the safety of any person or the community. 18 U.S.C. § 3142(b). If the court
determines that unsecured release of the defendant would endanger the community or pose
=================================================================
FN1 Magistrate Judge Mahoney stated that under home incarceration Smiekel is not allowed
out of his mother’s house unless for: (1) a medical emergency; (2) a meeting with his criminal
defense counsel or attending federal court; or (3) a meeting with a Pretrial Services Officer.
FN2 The government is unsure whether District Judge Frederick J. Kapala or Senior District
Judge Philip G. Reinhard will conduct the de novo review of the release order. Since no indictment
has yet been returned, no district judge has yet been assigned to the case. For that reason, the United
States will be submitting a copy of this pleading, via email, to both chambers prior to 9:00 a.m. on
August 11, 2011.
=================================================================
an unreasonable risk of flight, it must evaluate whether any conditions of release can
adequately protect against these possibilities. 18 U.S.C. § 3142(c)(1)(B). The court must
detain the defendant without bond if it concludes that no conditions will reasonably
guarantee the defendant’s appearance or the safety of any other person or of the community.
18 U.S.C. § 3142(e). FN3
The Supreme Court has upheld the constitutionality of pretrial detention to protect the
safety of the community observing that “the legislative history of the Bail Reform Act clearly
indicates that Congress did not formulate the pretrial detention provisions as punishment for
dangerous individuals. Congress instead perceived pretrial detention as a potential solution
to a pressing societal problem. There is no doubt that preventing danger to the community
is a legitimate regulatory goal.” United States v. Salerno, 481 U.S. 739, 747, 107 S.Ct. 2095,
2101 (1987).
The Charge Against Smiekel
Smiekel has been charged with using a facility of interstate commerce, a cellular
telephone, in a murder-for-hire, in violation of 18 U.S.C. § 1958. Details of the offense are
summarized in the criminal complaint. The allegations in the complaint are adopted by the
government for purposes of this Court’s de novo review of the detention order. At the
hearing on this motion, the government will submit a supplementary oral evidentiary proffer
in support of this motion.
==============================================================
FN3 At the detention hearing before Magistrate Judge Mahoney, the government did not claim
that Smiekel is a flight risk or that conditions could not be fashioned that would reasonably assure
his appearance as required. The government’s sole basis for requesting review of the order of
release relates to the danger to any person or the community that would be posed by Smiekel’s
release.
===================================================================
Argument in Support of Detention
There are numerous factors that are to be considered by the court in determining
whether there are conditions of release that will reasonably assure “the safety of any other
person and the community.” 18 U.S.C. § 3142(g).
A. The Nature of the Offense Supports Detention
The first factor that this court is directed to consider is the nature and circumstances
of the offense charged, “including whether the offense is a crime of violence or involves a
narcotic drug.” Murder-for-hire is a “crime of violence.” As such, this factor weighs in
favor of pretrial detention.
B. The Weight of the Evidence Supports Detention
The second factor that this court is directed by statute to consider is the weight of the
evidence against the defendant. The government can only characterize the evidence of guilt
as “extremely strong.” As set forth in the criminal complaint, during the investigation, the
ATF Special Agent, posing as a “hit-man,” recorded his meetings with the defendant. The
government has both audio and video recordings of the defendant. The defendant is recorded
giving $1,500 in cash as a down payment to the undercover agent. The defendant is also
recorded giving $7,000 in cash to the undercover agent and stating that he trusted the agent
to complete the job. The defendant is on tape discussing how he will pay the remainder of
the fee (the total cost of murdering the intended victim was to be $20,000).
The intent of the defendant to have the victim killed (§ 1958 requires the intent that
a murder be committed) is further buttressed by the defendant’s prior efforts to have the
intended victim killed. This factor, the weight of the evidence against the defendant,
particularly when combined with the defendant’s prior attempts to have the intended victim
killed, strongly supports detention.
C. The Nature and Seriousness of the Danger Supports Detention
The final factor to be considered is “the nature and seriousness of the danger to any
other person or the community that would be posed by the person’s release.” 18 U.S.C. §
3142(g)(4). As is set forth in the criminal complaint and as will be more fully referenced in
the government’s oral evidentiary proffer, the defendant is steadfastly set on having the
intended victim murdered – not by the defendant personally, but by someone he hires. The
defendant’s efforts to have someone murdered demonstrates the “nature and seriousness of
the danger” to the intended victim of the murder-for-hire. The defendant has approached at
least 6 individuals, attempting to have the intended victim murdered.
i. First Murder-for-Hire Attempt (February 2011)
The first time was in February of 2011 when the defendant approached an as yet
unidentified individual seeking a “hit-man.” That individual put the defendant in contact
with two male individuals (hereinafter the “two hit-men”). Smiekel paid a total of $8,000
to the two hit-men to murder the intended victim. Instead of completing the murder, the two
hit-men kept the money and figuratively walked away.
ii. Second Murder-for-Hire Attempt (April-June 2011)
In late April to early May 2011, the defendant approached another individual, seeking
to be connected with a hit-man. Smiekel provided a photograph and personal details of the
intended victim, including the residence, vehicle, and employment of the intended victim.
Even after the individual told the defendant that it was not worth it and not to proceed with
the murder, the defendant asked that the individual at least consider it.
iii. Third Murder-for-Hire Attempt (July 27-August 4, 2011)
The third attempt, with the defendant involving the cooperating individual and the
undercover ATF Special Agent, is set forth in the criminal complaint. It ends with the
defendant paying $7,000 in cash to the Special Agent and the defendant then being arrested.
D. No Other Reasonable Alternatives
Finally, the various conditions of release that were imposed by Magistrate Judge
Mahoney are simply inadequate. Electronic monitoring, even when coupled with home
incarceration, is simply not an effective means of insuring the safety of the community and
other persons. United States v. Oreno, 986 F.2d. 628, 632 (2nd Cir. 1993) (release conditions
that included multi-million dollar bonds, home detention, electronic monitoring, restricted
visitation privileges, consent searches of their homes, and voluntary wiretapping of their
telephones were insufficient as electronic surveillance systems can be circumvented and
monitoring equipment rendered inoperative) (citing United States v. Gotti, 776 F.Supp. 666,
672-73 (E.D.N.Y. 1991)). See also United States v. Masotto, 811 F.Supp. 878, 884,
(E.D.N.Y. 1993) (“[I]n the case of ‘dangerous defendants’ the Bail Reform Act does not
contemplate the type of conditions suggested by this Court and that, even if it did, the
conditions would not protect the public or the community, given the ease with which many
of them may be circumvented.”)
As has been observed in this District, “even if the [electronic monitoring] system was
foolproof, it alone would not be sufficient to protect witnesses and the community from these
defendants.” United States v. Infelise, 765 F.Supp. 960, 964 (N.D. Ill. 1991). This is so
because electronic monitoring systems are “reactive systems” that “don’t prevent anybody
from doing anything.” Id. at 963 (quoting then Magistrate Judge Gottschall with approval).
Home incarceration and electronic monitoring can do nothing to prevent Smiekel from
continuing his fixation on having the intended victim killed. Smiekel will continue to have
access to the same instrumentality, cellular telephones and now a land-line telephone (which
must be present in order for electronic monitoring to work) which he repeatedly used before
to make arrangements for the murder. He will continue to have access to other means of
communication (texting, emails, internet, etc.). He will also have the ability to arrange for
meetings at his mother’s house. The government’s evidence is not that Smiekel intended to
personally kill the intended victim – rather, the evidence shows that he repeatedly and
persistently sought out others to kill the intended victim. Simply placing the defendant at
home will do nothing to prevent Smiekel from again attempting to obtain a hit-man.
Any argument that Smiekel has somehow gotten a “wake-up call” or “reality check”
and will now stop trying to arrange for a murder is of little comfort to the intended victim.
Such a tenuous argument is also refuted by the defendant’s repeated attempts to arrange for
the murder. Although thwarted in February of 2011 by the two purported “hit men”
scamming him out of his $8,000, the defendant persisted. In April or early May of 2011, he
again asked another individual if that person would be able to arrange for someone to kill the
intended victim.4 Even after the individual tried to dissuade the defendant from proceeding,
Smiekel insisted that the individual “at least think about it.” Then, the same day that the
intended victim receives confirmation from the ARDC that his complaint against Smiekel
had been received and that the ARDC had asked Smiekel for a response, Smiekel approaches
the cooperating individual identified in the complaint, again seeking to hire someone to
murder the intended victim. This Court should not gamble that the defendant’s obsession
with having the intended victim killed will somehow be kept in check when the defendant
will be in a place where he will have access to use the same facilities as he used before to
attempt to arrange for a murder-for-hire.
===============================================================
FN4 As noted in the evidentiary proffer, Smiekel began with wanting to “scare” the intended
victim before quickly progressing to “hurt,” “break the legs” of, and finally to murder.
================================================================
CONCLUSION
For the foregoing reasons, the United States submits that there are no conditions of
release that can guarantee the safety of any other person and of the community. Accordingly,
the United States respectfully moves this court to revoke the order of release entered for
defendant Smiekel and order that he be detained pending trial.
Respectfully submitted,
PATRICK J. FITZGERALD
United States Attorney
BY: /s/ John G. McKenzie
JOHN G. McKENZIE
Assistant United States Attorney
308 West State Street - Room 300
Rockford, Illinois
# posted by Cal Skinner : 3:49 PM
