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Case 3:09-cr-00247-P Document 249 Filed 03/04/11 Page 1 of 8 PageID 941

IN THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA §


§
vs. § No. 3:09-CR-247-P
§
EUGENE J. LOCKHART, JR. (01) §

GOVERNMENT’S SECOND MOTION


TO REVOKE CONDITIONS OF PRETRIAL RELEASE

TO THE HONORABLE JUDGE JORGE SOLIS:

The United States of America, by and through the United States Attorney for the

Northern District of Texas, moves to revoke the conditions of pretrial release of

defendant Eugene J. Lockhart, Jr. (Lockhart) and would show the Court as follows:

I. Case Chronology

On September 1, 2009, a federal grand jury in the Northern District of Texas,

Dallas Division, returned an indictment charging Lockhart and other defendants with

various mortgage fraud related offenses, including the offenses of conspiracy to commit

wire fraud and bank fraud, bank fraud and wire fraud, as well as aiding and abetting in

the commission of those offenses. On January 4, 2011, a third superseding indictment

was returned. A total of eleven defendants have been charged in this indictment. Five

defendants have entered pleas of guilty and are expected to testify. The remaining six

defendants are scheduled to go to trial on Monday, March 28, 2011.

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A. Initial Appearance - Order Setting Original Conditions of Release

On September 3, 2009, Lockhart was arrested. Later that same day,

Lockhart made his initial appearance, was arraigned and entered a plea of not

guilty before United States Magistrate Judge Jeff Kaplan. At this initial

appearance, both Judge Kaplan and Lockhart signed the “Order Setting Conditions

of Release.” Page One of this order included three standard conditions of release.

Judge Kaplan ordered Lockhart to be released subject to the following Standard

Condition No. 1:

(1) The defendant shall not commit any offense in violation of federal, state or
local law while on release in this case.

Also included in Judge Kaplan’s order under the heading “Additional Conditions

of Release,” which imposed additional relevant conditions of release, to include:

Paragraph 7(a):

The defendant shall report to the Pretrial Services Agency as directed.

Paragraph 7(o):

The defendant shall refrain from the excessive use of alcohol.

In the “Acknowledgment of Defendant”, Lockhart stated that he was aware of the

conditions of release.

B. First Motion to Revoke Conditions of Release - July 9, 2010

On July 9, 2010, the government filed a motion to revoke Lockhart’s

conditions of release. The motion to revoke alleged that Lockhart violated his

conditions of release by: (1) testing positive for cocaine in May of 2010; and

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(2) failing to follow instructions to submit urine specimens as part of a random

urinalysis call in system. On at least nine different days during the May-June 2010

time period, Lockhart willfully disobeyed instructions by failing to call the

notification line as required by his pretrial services officer.

On July 9, 2010, evidence was presented at a contested hearing before

United States Magistrate Judge Renee Harris Toliver. Following presentation of

evidence and argument by counsel, Judge Toliver declined to revoke Lockhart’s

conditions of release.

C. Additional Conditions of Release - Set July 12, 2010

Three days after the July 9 revocation hearing, Lockhart was required to

read and sign a document entitled “Pretrial Release Reporting Instructions”. One

of the items listed under the heading “Additional Instructions” included:

You shall not commit a federal, state, or local offense during the period
of release. You shall inform the Probation/Pretrial Services Officer
immediately if you are charged with an offense. (emphasis added)

At the bottom of this document, right above Lockhart’s signature, appears a


section entitled “Defendant’s Statement”, which states as follows:

I understand the above stated instructions and understand that failure to


comply will be reported to the Court and may result in the revocation
of my bond and my detention pending the outcome of my case.
Signed / Eugene Lockhart 7/12/10. (emphasis added)

II. Evidence that Lockhart Violated Conditions of Release

While subject to the terms and conditions of pretrial release, Lockhart violated the

above-referenced conditions by the conduct described below:

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On October 10, 2010, at about 2:55 a.m., an Addison Police Department patrol

officer approached Lockhart’s vehicle. At that time, Lockhart occupied the back seat of

his vehicle. When initially approached, Lockhart failed to comply with the uniformed

patrol officer’s verbal commands to Lockhart to remain in the vehicle. Lockhart also

failed to comply with subsequent verbal commands to Lockhart to sit on the ground near

Lockhart’s vehicle. The patrol officer at the scene also made the following observations

about Lockhart’s condition and demeanor: red, watering and blood shot eyes; slurred

speech; unsteady balance; and a strong odor of alcohol on his breath. Lockhart was

arrested for the offense of public intoxication.

On October 12, 21, 26 and 28, 2010, defendant Lockhart telephonically reported to

his pretrial services officer as instructed. However, during these multiple required

contacts, Lockhart willfully disobeyed the additional instructions given to Lockhart on

July 12, 2010. Lockhart refused to comply with these instructions when he chose not to

immediately report his arrest. In order to avoid any risk of having his bond revoked,

Lockhart chose to conceal from pretrial services not only his October 10, 2010 arrest but

also his October 19, 2010 court appearance and finding of guilt by the municipal judge.

During October of 2010, Lockhart violated his conditions of release by:

1) Lockhart’s excessive use of alcohol on October 10, 2010;

2) Lockhart’s commission of the criminal offense of public intoxication, a

violation of Section 49.02 of the Texas Penal Code - as evidenced by a municipal

judge’s Judgment of Deferred Disposition (which included the judge finding

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defendant Lockhart guilty of the offense of public intoxication); and

3) Lockhart’s continuing failure to immediately report his October 10, 2010 arrest

to his pretrial services officer.

On October 19, 2010, a Motion for Deferred Adjudication was filed on behalf of

Lockhart in the case of State of Texas vs. Eugene Lockhart, Jr., Cause Number

2010008780, in Municipal Court No. 1, Town of Addison, County of Dallas, Texas. The

document appeared to be signed on October 19, 2010 by either Lockhart or for an

attorney on behalf of Lockhart. The signature does not appear to be that of Lockhart, and

appears to have been signed by an unidentified attorney.

On October 19, 2010, a Judgment of Deferred Disposition was signed by Addison

Municipal Judge Larry Dwight.

On October 21, 2010, it appears that Judge Dwight dismissed this case, stating that

the Order of Deferral was complied with. This dismissal was done at the request of

Lockhart’s unidentified attorney.

On November 23, 2010, Lockhart’s pretrial services officer discovered during a

routine criminal records check that Lockhart had been arrested by Addison Police for

public intoxication on October 10, 2010.

On December 16, 2010, Lockhart’s pretrial services officer confronted Lockhart

with his recent Addison arrest and his failure to immediately report that arrest. Lockhart

first denied being arrested by Addison Police. However, after being questioned further,

Lockhart admitted that he was arrested by Addison Police on October 10, 2010. Lockhart

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also told his pretrial services officer that his attorney told Lockhart that he did not have to

ever report this arrest to his pretrial services officer, since Lockhart’s attorney was

working to have Lockhart’s arrest and entire court records expunged.

III. Conclusion

Based upon the foregoing conduct, defendant Lockhart has violated the following

conditions of release:

From Judge Kaplan’s Original Order Setting Conditions of Release -

! Standard Condition Number One - to not commit a new offense

! Additional Conditions of Release - paragraphs 7(a), requiring that Lockhart

report to pretrial services as directed, and paragraph 7(o), requiring that Lockhart

refrain from the excessive consumption of alcohol

From the Additional Conditions of Release set July 12, 2010 -

! to not commit a new offense

! to immediately inform pretrial services if Lockhart charged with an offense

Lockhart violated his conditions of release in at least three ways:

a) Lockhart consumed excessive amounts of alcohol;

b) Lockhart failed to immediately report (and for two months thereafter he

continued to conceal) that he had been arrested and charged with an offense

(public intoxication); and

c) Lockhart committed an new state offense (public intoxication) while on release.

Lockhart disregarded the instructions of his pretrial services officer when he chose

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not to immediately report his arrest by Addison police and subsequent court action. The

motive for Lockhart’s deception and concealment is obvious. Lockhart chose to conceal

his arrest and court action in an effort to avoid facing any risk that Lockhart would have

his bond revoked and that Lockhart be detained pending trial. Lockhart has clearly

demonstrated his unwillingness to abide by the terms of release originally set by Judge

Kaplan and additional conditions imposed by Judge Toliver. Based upon Lockhart’s

conduct detailed above, it is reasonable to conclude that there is no condition or

combination of conditions of release that will assure the appearance of Lockhart as

required, as well as assure the safety of any other person and the community.

Based on the foregoing, and pursuant to 18 U.S.C. § 3148(b), the government

requests that this Court revoke Lockhart’s conditions of pretrial release. The government

further requests that this matter be set for a hearing as soon as possible so that further

evidence may presented in support of this motion to revoke.

Respectfully submitted,

JAMES T. JACKS
UNITED STATES ATTORNEY

S/ David L. Jarvis
DAVID L. JARVIS
Assistant United States Attorney
State Bar No. 10585500
1100 Commerce Street, Third Floor
Dallas, Texas 75242-1699
Telephone: 214.659.8729
Facsimile: 241.767.4104
Email: david.jarvis@usdoj.gov

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CERTIFICATE OF CONFERENCE

I hereby certify that on March 4, 2011, the undersigned conferred with Jay

Ethington, counsel for defendant Lockhart, regarding this motion. Mr. Ethington is

opposed to the Count granting the Government’s Second Motion to Revoke Conditions of

Release.

S/ David L. Jarvis
DAVID L. JARVIS
Assistant United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that on March 4, 2011 I electronically filed the foregoing

document with the clerk of court for the U.S. District Court, Northern District of Texas,

using the electronic case filing system of the court. The electronic case filing system sent

a “Notice of Electronic Filing” to the following attorneys of record who have consented

in writing to accept this Notice as service of this document by electronic means:

Jay Ethington, attorney for defendant Eugene J. Lockhart, Jr.

S/ David L. Jarvis
DAVID L. JARVIS
Assistant United States Attorney

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