United States District Court, D. South Dakota, Western Division
ORDER DENYING MOTION FOR RECONSIDERATION OF
WOLLMANN UNITED STATES MAGISTRATE JUDGE
Matthew Kurtenbach was charged on April 18, 2017, in an
Indictment with Distribution of a Controlled Substances and
Possession with the Intent to Distribute a Controlled
Substance in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(C). A Writ of Habeas Corpus ad Prosequendum was
entered on April 20, 2017, as Mr. Kurtenbach was serving a
state court sentence and was being held in state custody at
the South Dakota Community Work Center in Yankton, South
Dakota. (Doc. 7 and Doc. 8).
1, 2017, Mr. Kurtenbach filed a motion to quash the writ and
requested that he be allowed to appear via videoconferencing
and remain in state custody so he could attend his upcoming
parole hearing. (Doc. 14). Mr. Kurtenbach appeared in person
at an initial appearance and arraignment on May 1, 2017. The
court denied as moot the motion to quash. (Doc. 14). Mr.
Kurtenbach entered not guilty pleas and a detention hearing
was held. At the detention hearing, the government asserted
the defendant should be detained in federal custody. Mr.
Kurtenbach argued that he should be returned to state custody
and indicated that he was willing to waive his rights under
the anti-shuttling act. The court detained Mr. Kurtenbach.
Kurtenbach filed a motion to reconsider the detention order.
(Doc. 23). The government opposes the motion. (Doc. 31).
Additional related filings are Mr. Kurtenbach's reply
memorandum (Doc. 35), Mr. Kurtenbach's supplemental
motion (Doc. 54), and Mr. Kurtenbach's request for
ruling. (Doc. 60).
Reopening the detention hearing.
court previously determined that Mr. Kurtenbach is a danger
to the community and a risk of flight. However, he seeks to
reopen the detention hearing. Mr. Kurtenbach argues that he
should be allowed to present evidence that returning him to
state court custody constitutes a condition that will assure
the safety of the community and assure Mr. Kurtenbach's
presence at further proceedings. The government opposes the
court readdressing the issue of detention on the grounds that
no new evidence exists to merit reopening the detention
U.S.C. § 3142(f)(2)(B) provides that “[t]he
hearing may be reopened, before or after a determination by
the judicial officer, at any time before trial 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.” The court finds that Mr. Kurtenbach offers
no new information that didn't exist or wasn't known
to him at the time of the hearing. Therefore, the court will
not reopen the detention hearing. However, for purposes of
supplementing the oral record at the detention hearing, the
court will set forth its legal and factual basis for
detaining Mr. Kurtenbach.
of flight and danger the community
Bail Reform Act, 18 U.S.C. § 3142, governs the pretrial
release of defendants in federal district court. In
determining whether to release or detain Mr. Kurtenbach, the
court is required to consider the following:
(1) the nature and circumstances of the offense charged,
including whether the offense . . . involves a controlled
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person ...