UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-095-01-SM

Cushaw Barnett

O R D E R

On December 13, 2012, defendant appeared for a bailrevocation hearing pursuant to 18 U.S.C. § 3148. 

A request to revoke bail is governed by 18 U.S.C. § 

3148(b), which provides in part:

The judicial officer shall enter an order of 

revocation and detention if, after a hearing, the 

judicial officer--

(1) finds that there is-

(A) probable cause to believe that the person has 

committed a Federal, State, or local crime while 

on release; or

(B) clear and convincing evidence that the person 

has violated any other condition of release; and

(2) finds that--

(A) based on the factors set forth in section 

3142(g) of this title, there is no condition or 

combination of conditions of release that will 

assure that the person will not flee or pose a 

danger to the safety of any other person or the 

community; or

(B) the person is unlikely to abide by any 

condition or combination of conditions of 

release. 

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18 U.S.C. § 3148 (b)(1)-(2). The government has the initial 

burden to establish the violation under 18 U.S.C. § 3148 (b)(1). 

If the government establishes probable cause to believe the 

defendant committed a new felony offense on release, a 

rebuttable presumption arises that no condition or combination 

of conditions will assure that the person will not pose a danger 

to the safety of any other person or the community. 18 U.S.C. § 

3148(b)(2). Otherwise, the government typically has the burden 

to prove by a preponderance of the evidence the requirements of 

section 3148 (b)(2)(A) or (B). United States v. Aron, 904 F.2d 

221, 224 (5th Cir. 1990); United States v. Poinsett, 953 F. 

Supp. 37, 38 (N.D.N.Y. 1997). 

Background

At the time of the violations alleged by the government, 

defendant was out on bail pending a supervised release 

revocation hearing scheduled for January 22, 2013. The 

undersigned magistrate judge previously released defendant on 

conditions following a lengthy, contested hearing that took 

place on October 10, 2012 (“October hearing”). At the October 

hearing, defendant demanded the right of self-representation. 

After a detailed colloquy, the court granted that request but 

appointed Attorney Michael Ramsdell as stand-by counsel. Also 

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at the October hearing, the government argued for defendant’s 

detention, asserting that defendant was hostile to the court’s 

authority and jurisdiction and would not abide by any conditions 

of release. For the reasons stated on the record at that 

hearing, the court released defendant after defendant assured 

the court that, despite his views about his sovereignty and the 

court’s lack of jurisdiction over him, he would abide by 

conditions of release and understood that his release was 

conditioned on obedience to the court’s orders.

On December 7, 2012, the government filed a “Report of Bail 

Violation” (doc. no. 139) and sought a warrant for defendant’s 

arrest. The court issued the warrant and defendant was brought 

before the court for the December 13 hearing. 

Defendant’s Removal from the Courtroom

Before the hearing even began, defendant started screaming 

directives toward the court. After it became clear that 

defendant would not stop yelling, the court took a short recess. 

After the recess, defendant exhibited the same behavior and 

would not stop yelling despite the court’s demands for order. 

The court then informed defendant that if he persisted to 

obstruct the proceedings, the court would order his removal from 

the courtroom, hold the hearing in his absence, and appoint 

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Attorney Ramsdell to represent him at the hearing. Defendant 

continued to yell. The court ordered his removal and took a 

second brief recess. During the recess, the court inquired of 

the the U.S. Marshals Service about the availability of a oneway video feed from the courtroom to defendant’s cell. After a

video feed was established, the court began the hearing anew.

Based upon defendant’s conduct, the court inquired about 

defendant’s mental competence. Having supervised defendant 

since his release on his 2005 convictions, Probation Officer 

Daniel Gildea is extremely familiar with defendant. Officer 

Gildea expressed no concerns regarding defendant’s mental 

competence, although he acknowledged that defendant’s conduct 

exhibited more hostility to the court than he had previously 

witnessed from defendant. Attorney Ramsdell has had previous 

contact with defendant and is likewise familiar with him. 

Attorney Ramsdell assured the court that, in the event he 

developed any concerns regarding defendant’s competence, he 

would alert the court. In light of the court’s prior contact 

with defendant at the October hearing, as well as the statements 

of both Officer Gildea and Attorney Ramsdell at this hearing, I 

find that defendant’s conduct does not appear related to mental 

illness. Although his courtroom demeanor was defiant, rude, and 

seemingly irrational, his conduct appears directly related to 

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his unfounded but deeply-held belief that the court has no 

jurisdiction or authority over him.

Bail Revocation Hearing

At the hearing, Attorney Ramsdell did not contest the 

government’s evidence that defendant had committed multiple bail 

violations. Based upon the facts alleged in Officer Gildea’s 

memorandum (doc. no. 139), I find that the government satisfied 

both prongs of 18 U.S.C. § 3148(b)(1).

On the question of whether to revoke defendant’s bail, the 

government argued in the affirmative, asserting that defendant 

was unlikely to abide by any condition or combination of 

conditions of release. See 18 U.S.C. § 3148(b)(2)(B). Attorney 

Ramsdell argued that, while defendant offered no evidence that 

he was likely to abide by conditions of release, defendant was 

neither a danger nor a flight risk. Attorney Ramsdell asked the 

court to continue the bail-revocation hearing for approximately 

one week to give defendant a “cooling-off” period. Attorney 

Ramsdell asserted that such a “cooling-off” period would allow 

defendant the opportunity to regroup and argue persuasively to 

the court that he will abide by conditions of release. The 

government did not concur in Attorney Ramsdell’s request for a 

continuance.

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For the reasons explained orally from the bench during the 

hearing, the court revoked defendant’s bail and ordered his 

detention pending his January 22 hearing. The court’s decision

rests on the undisputed evidence that defendant is unlikely to 

obey any order(s) of this court that he perceives as imposing a

restriction on his liberty. The bail-revocation statute 

contemplates the possibility of amending a bail order and 

releasing a defendant

[i]f the judicial officer finds that there are 

conditions of release that will assure that the person 

will not flee or pose a danger to the safety of any 

other person or the community, and that the person 

will abide by such conditions . . . .

18 U.S.C. § 3148(b) (emphasis added). Here, the court finds 

that defendant will not abide by any conditions, such as the 

conditions of his supervised release, that he views as a 

restraint of his liberty. 

For all of the reasons stated on the record, the court 

finds that the government met its burden, under either prong of 

18 U.S.C. § 3148(b)(1), of establishing a bail violation. The 

court further finds that defendant is unlikely to abide by any 

condition or combination of conditions of release, see 18 U.S.C. 

§ 3148(b)(2)(B), and that revocation of bail is warranted. The 

conditions of release are therefore revoked.

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Accordingly, it is ORDERED that defendant be detained. 

He is committed to the custody of the Attorney General or her 

designated representative for confinement in a corrections 

facility separate, to the extent practicable, from persons 

awaiting or serving sentences or being held in custody pending 

appeal. Defendant shall be afforded a reasonable opportunity 

for private consultation with defense counsel. On order of a 

court of the United States or on request of an attorney for the 

government, the person in charge of the corrections facility 

shall deliver defendant to the United States Marshal for the 

purpose of an appearance in connection with a court proceeding.

SO ORDERED.

__________________________

Landya B. McCafferty

United States Magistrate Judge

Date: December 14, 2012

cc: Cushaw Barnett, pro se

Michael D. Ramsdell, Esq.

Debra M. Walsh, Esq.

U.S. Probation

U.S. Marshal

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