Page 1 – DEFENDANT’S MOTION FOR RECONSIDERATION OF 

DETENTION STATUS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW

1000 S.W. BROADWAY, #1500

PORTLAND, OREGON 97205

(503) 228-0497

Per C. Olson, OSB #933863

HOEVET OLSON HOWES, PC 

1000 SW Broadway, Suite 1500

Portland, Oregon 97205

Telephone: (503) 228-0497

Facsimile: (503) 228-7112

Email: per@hoevetlaw.com

Of Attorneys for Defendant 

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

v.

DAVID LEE FRY,

Defendant.

Case No. 3:16-CR-00051-13-BR

DEFENDANT’S MOTION TO 

REOPEN DETENTION HEARING

Hearing Requested

Defendant, David Lee Fry, hereby submits this motion to reopen the detention 

hearing pursuant to 88 U.S.C. § 3142(f) (detention hearing may be reopened “if the 

judicial officer finds that information exists that was not known to the movant at the time 

of the hearing and that has a material bearing on the issue whether there are conditions 

of release that will reasonably assure the appearance of such person as required and 

the safety of any other person and the community.”)

Defendant was denied release by Magistrate Judge Stacie F. Beckerman on 

March 4, 2016. (Docket Nos. 240, 241). On April 4, 2016, Judge Robert E. Jones 

denied defendant’s Motion to Revoke the detention order. (Docket Nos. 364, 414).

Case 3:16-cr-00051-BR Document 751 Filed 06/21/16 Page 1 of 4
Page 2 – DEFENDANT’S MOTION FOR RECONSIDERATION OF 

DETENTION STATUS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW

1000 S.W. BROADWAY, #1500

PORTLAND, OREGON 97205

(503) 228-0497

Defendant asks the court to reconsider his detention status based on the 

following changed circumstances that have come to pass since the Court last 

considered defendant’s detention status. 

First, the Court has granted Defendant’s Motion to Dismiss Count Three of the 

Indictment which had alleged a violation of 18 U.S.C. § 924(c) (carrying or possessing a 

firearm in relation to a crime of violence). (Docket No. 671). The Court ruled that Count 

One, which was the alleged “crime of violence” in Count Three, categorically was not a 

crime of violence. 

This ruling affects defendant’s detention status in two ways. First, because of 

Count Three, there was a rebuttable presumption that “no condition or combination of 

conditions will reasonably assure the appearance of the person as required and the 

safety of the community.” 18 U.S.C. § 3142(e)(3)(B). However, now that Count Three 

has been dismissed, this presumption no longer applies. Also, the ruling that the 

Conspiracy alleged in Count One is not a “crime of violence” tips the “factor” analysis of 

§ 3142(g) in defendant’s favor, because it can no longer be said that defendant is 

charged with a crime of violence.

1

The second changed circumstance is the fact that defendant no longer is on 

probation in the state of Ohio. Defendant had received a one year probationary 

sentence for misdemeanor offenses on June 19, 2015. The state simply has allowed 

that probation to expire rather than seek to extend probation based on the criminal 

activity alleged here. 

 

1 The definition of “crime of violence” as used in § 3142(g), set forth at 

§ 3156(a)(4), is identical to the definition of “crime of violence” in § 924(c)(3). Judge 

Brown ruled that the Conspiracy to Impede Federal Officers alleged in Count One was 

not a “crime of violence” as that term is defined in § 924(c)(3). 

Case 3:16-cr-00051-BR Document 751 Filed 06/21/16 Page 2 of 4
Page 3 – DEFENDANT’S MOTION FOR RECONSIDERATION OF 

DETENTION STATUS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW

1000 S.W. BROADWAY, #1500

PORTLAND, OREGON 97205

(503) 228-0497

Next, the plea agreements recently appearing in the docket give rise to a concern 

that the duration of pre-trial detention may outpace any sentence he might receive in 

this matter in the event of a jury finding of guilt. Defendant intends to go to trial on 

September 7. The government has stated that its case-in-chief will last three to four 

weeks; thus, the entire trial could last two months or longer, by which time defendant 

will have been in custody for nine months. In contrast, several defendants in this matter 

have entered into plea agreements that call for sentences ranging from straight 

probation to six months’ of home confinement. In light of the likely sentence Mr. Fry 

faces if found guilty, continued and prolonged pretrial detention violates his right of Due 

Process protected by the Fifth Amendment to the United States Constitution. See 

United States v. Gelfuso, 838 F.2d 358 (9th Cir. 1988) (recognizing a due process limit 

on the length of pretrial detention, requiring a consideration of the length of confinement 

in conjunction with the extent to which the prosecution bears responsibility for the 

delay); see also United States v. Aileman, 165 F.R.D. 582 (N.D. Cal. 1996) (reading 

Gelfuso as not requiring a showing of government delay to establish a Due Process 

claim of prolonged pretrial detention). 

Finally, defendant would note that he is the only defendant of the last four 

defendants to leave the refuge who remains in custody. Sean and Sandra Anderson 

and Wayne Banta all have been released. Because his undisputed conduct is no more 

serious than those defendants, defendant maintains that he should be released as well. 

In addition to the foregoing, defendant would rely on all of the points and 

authorities he previously cited in support of his release as well as the psychological 

evaluation submitted under seal. 

Case 3:16-cr-00051-BR Document 751 Filed 06/21/16 Page 3 of 4
Page 4 – DEFENDANT’S MOTION FOR RECONSIDERATION OF 

DETENTION STATUS

HOEVET OLSON HOWES, PC

ATTORNEYS AT LAW

1000 S.W. BROADWAY, #1500

PORTLAND, OREGON 97205

(503) 228-0497

To conclude, defendant asks the Court to reopen the detention hearing and to

release defendant from custody pending trial.

DATED this 21st day of June, 2016.

HOEVET OLSON HOWES, PC 

 s/ Per C. Olson

Per C. Olson, OSB #933863

Attorney for Defendant David Fry

Case 3:16-cr-00051-BR Document 751 Filed 06/21/16 Page 4 of 4