Case: 12-11269 Date Filed: 09/17/2012 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11269
Non-Argument Calendar
________________________
D.C. Docket No. 3:11-cr-00058-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANDREW WINGO,
a.k.a. Andy Wingo,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 17, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Andrew Wingo appeals from the district court’s order denying his appeal for
Case: 12-11269 Date Filed: 09/17/2012 Page: 2 of 7
pretrial release and supervision under the Bail Reform Act of 1984, 18 U.S.C.
§ 3145(b). After thorough review, we affirm.
I.
In November 2011, Wingo was indicted on charges of conspiracy to defraud
the United States, money laundering, conspiracy to commit money laundering, and
interstate transportation of stolen property. At an initial appearance, a magistrate
judge released Wingo on bond pending trial. The magistrate judge imposed
several conditions of release, including that Wingo “refrain from possessing a
firearm, destructive device, or other dangerous weapons.” The magistrate judge
warned Wingo that the condition “means not in your house, not on your person,
not in your car as long as this bond is pending.”
On January 6, 2012, Wingo’s probation officer filed a Petition for Action on
Conditions of Pretrial Release, alleging that Wingo violated the conditions of his
pretrial release because he was found to be in possession of a firearm or other
dangerous weapon. At a hearing on the matter, Wingo stipulated that he “did
possess three firearms and/or dangerous weapons at his residence . . . including a
Thompson/Center Arms .50 caliber Thunder Hawk[,] . . . a Colt automatic .25
caliber handgun and a Sturm Ruger & Company, Inc. Mini 14 .233 caliber as
evidenced by the seizure of said firearms by the probation office.”
2
Case: 12-11269 Date Filed: 09/17/2012 Page: 3 of 7
Wingo’s wife testified at the hearing that she and Wingo attempted to
remove all the firearms from their home after Wingo was indicted. She explained
that Wingo suffered from dementia, insomnia, and headaches, for which he was
prescribed psychotropic medication. According to Mrs. Wingo, the medications
caused Wingo to wake at night and move things in the house around without
recalling these incidents the next morning. Mrs. Wingo also testified that she and
Wingo had three minor children living in the home, and that Wingo’s weapons
were often in plain sight. Wingo’s probation officer testified that she feared for
her safety when she visited Wingo’s home because of the number of weapons she
saw in the house.
Based on this testimony, the magistrate judge found by clear and convincing
evidence that Wingo violated the conditions of his pretrial release. The judge
expressed concern for the children’s safety considering the weapons Wingo
possessed and his mental infirmities. The judge accordingly found that no
condition or combination of conditions would assure that Wingo would not pose a
danger to the community. And the judge concluded that Wingo was unlikely to
abide by any condition imposed based on his failure to conform to the original
terms, his history of possessing an extensive weapon collection, and his mental
condition. The magistrate judge therefore revoked bond and ordered that Wingo
3
Case: 12-11269 Date Filed: 09/17/2012 Page: 4 of 7
be detained pending trial.
Wingo filed a motion for reconsideration of the order of detention, which
the magistrate judge denied. Wingo then appealed to the district court, pursuant to
18 U.S.C. § 3145(b), for review of the magistrate judge’s order. The district court
denied the appeal and affirmed the order of detention. This is Wingo’s appeal.
II.
We subject the district court’s order affirming an order of detention under
the Bail Reform Act of 1984, 18 U.S.C. § 3148(b), which presents mixed
questions of law and fact, to plenary review. United States v. Quartermaine, 913
F.2d 910, 915 (11th Cir. 1990). “Purely factual findings, however, will not be
disturbed unless they are clearly erroneous.” Id. “A finding of fact is clearly
erroneous only when a reviewing court is left with the definite and firm conviction
that a mistake has been committed.” United States v. Edmondson, 791 F.2d 1512,
1514-15 (11th Cir. 1986).
III.
Under the Bail Reform Act of 1984, a court may revoke a person’s pretrial
release if, after a hearing, the court finds “clear and convincing evidence that the
person has violated any . . . condition of release” and that “there is no condition or
combination of conditions of release that will assure that the person will not flee
4
Case: 12-11269 Date Filed: 09/17/2012 Page: 5 of 7
or pose a danger to the safety of any other person or the community; or the person
is unlikely to abide by any condition or combination of conditions of release.” 18
U.S.C. § 3148(b)(1)(B), (b)(2). To determine whether a condition or combination
of conditions of release will assure that the person will not flee or pose a danger to
another person or the community, the court must consider: (1) “the nature and
circumstances of the offense charged, including whether the offense is a crime of
violence”; (2) “the weight of the evidence against the person”; (3) “the history and
characteristics of the person,” including the person’s physical and mental
condition; and (4) “the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.” 18 U.S.C. § 3142(g).
Wingo first argues that the court erred in revoking his pretrial release
because he did not willfully violate the terms of his release. He submits that his
dementia, insomnia, and severe headaches caused him to mistakenly violate the
terms of his release. But nothing in the statute requires that the person’s violation
of a condition of release be willful. Moreover, Wingo conceded that he “did
possess three firearms and/or dangerous weapons at his residence,” which
expressly violated the term of his pretrial release that he “refrain from possessing a
5
Case: 12-11269 Date Filed: 09/17/2012 Page: 6 of 7
firearm . . . or other dangerous weapons.”1 This condition of pretrial release was
also without an intent requirement. Thus, Wingo violated the terms of his pretrial
release regardless of whether he did so willfully.
Wingo next contends that the district court erred in finding that he posed a
threat to society sufficient to warrant revocation of his pretrial release.
Specifically, he contends that neither the magistrate judge nor the district court
heard evidence establishing that he had a history or predisposition to violence
because he has never harmed anyone with his weapons. Instead, he argues, he
possessed his weapons lawfully, for sporting and protection. Even if Wingo has
never harmed anyone, however, the district court’s conclusion that Wingo posed a
danger to the community was not clearly erroneous in light of testimony that
Wingo possessed several weapons in his home despite the presence of three minor
children and the probation officer’s testimony that she feared for her safety at
Wingo’s home.
And the district court did not clearly err in finding that no condition or
combination of conditions would assure the safety of the community in light of the
1
This stipulation, to possession of “firearms and/or dangerous weapons,” dispenses with
Wingo’s argument that the Thompson/Center Arms .50 caliber rifle was not technically a
firearm. Wingo conceded that the rifle was either a firearm or a dangerous weapon, and either of
these violates the terms of his pretrial release.
6
Case: 12-11269 Date Filed: 09/17/2012 Page: 7 of 7
concerns the magistrate judge expressed. Importantly, Wingo does not challenge
the court's second finding, that he was unlikely to abide by any conditions the
judge imposed. Thus, even if the court could have imposed conditions that might
have ensured the safety of the community if Wingo complied, there is ample
evidence in the record that he would be unlikely to do so. Wingo failed to comply
with the condition that he refrain from possessing firearms or dangerous weapons
the first time. And, based on his wife’s testimony that he had dementia, insomnia,
and often exhibited behaviors that he could not control or remember, it was
reasonable for the court to conclude that he would be unlikely to comply with
additional conditions imposed.
Because we conclude that the district court did not clearly err in affirming
the magistrate judge’s order of detention, we affirm.
AFFIRMED.
7