United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER CONTINUING TRIAL AND
DENYING MOTIONS FOR REVIEW OF DETENTION
N. PARRISH UNITED STATES DISTRICT COURT JUDGE.
Government has charged Jacob Kingston, Isaiah Kingston, Lev
Dermen, Rachel Kingston, and Sally Kingston with a variety of
offenses related to an alleged scheme to illegally obtain
over $500 million in renewable fuel tax credits. Jacob,
Isaiah, and Lev have been detained pending trial since their
initial appearances on August 24, 2018. Rachel and Sally were
added to this case on January 22, 2019 and have been granted
pretrial release. A trial for Jacob, Isaiah, and Lev is
currently scheduled for May 13, 2019.
the court is a motion filed by Rachel and Sally to continue
the trial and set a combined trial date for all five
defendants for July 25, 2019. [Docket 185]. Jacob stipulates
to the motion. Isaiah and Lev oppose the motion. The court
GRANTS the motion to continue the combined trial and sets a
firm trial date of July 29, 2019.
before the court are motions for review of detention filed by
Isaiah and Lev. [Docket 189, 208, 226]. These defendants
argue that new information and due process concerns require
their release from detention pending trial. The court DENIES
the motions for review of detention.
the court also reviews the detention status of Jacob, Isaiah,
and Lev under 18 U.S.C. § 3164. Pursuant to this
statute, the court determines that these defendants shall
remain in detention until the completion of the combined
CONTINUANCE OF THE TRIAL DATE AND EXCLUSON OF TIME
Findings of Fact
upon all of the filings of the parties in this case, the
evidentiary hearings before Judge Wells, and the hearings
held on February 19, 2019 and March 4, 2019, the court makes
the following findings:
Government alleges that the defendants engaged in a complex
and multi-year fraud scheme to defraud the United States out
of more than $511 million in renewable fuel tax credits. The
Government also alleges that the defendants laundered the
proceeds of the scheme.
August 1, 2018, the Government filed a sealed indictment as
to Jacob, Isaiah, and Lev. On August 23, 2018, Jacob and
Isiah were arrested in the District of Utah. On the same day,
Lev was arrested in the Central District of California. These
defendants were ordered to be detained pending trial. On
September 4, 2018, a magistrate judge in the Central District
of California ordered that Lev be removed to the District of
September 18, 2018, this court denied Isaiah's motion for
review of his detention. The court found that Isaiah had both
a motive and the means to flee the country and determined
that there was no combination of conditions that would
reasonably assure his appearance at trial.
October 9, 2018, this court also denied Lev's motion for
review of his detention. The court similarly found that Lev
was a flight risk and that no combination of conditions would
reasonably assure his appearance at trial.
on October 9, 2018, the court excluded the time between
August 24, 2018 and December 5, 2018 from the 70-day
calculation under the Speedy Trial Act. The court determined
that this matter is complex within the meaning of 18 U.S.C.
§ 3161(h)(7)(B)(ii). The court set a trial date of
February 11, 2019 for Jacob, Isaiah, and Lev.
November 20, 2018, the Government filed its first superseding
indictment, which added new counts against Jacob and Isaiah.
early December 2018, the parties disagreed about whether the
February 11, 2019 trial should be continued. In a brief filed
on December 7, 2018, the Government argued that the trial
should be continued. Because Jacob's counsel had a
conflicting trial scheduled in the Eastern District of New
York, he also requested a continuance of the trial date.
Isaiah and Lev, however, filed briefs opposing any
continuance of the February 11, 2019 trial date because of
their detention status.
December 21, 2018, the court continued the trial until May
13, 2019. The court excluded the time between December 5,
2018 and May 13, 2019 from the 70-day calculation under the
Speedy Trial Act. The court excluded the time as to Jacob
under 18 U.S.C. § 3161(h)(7). After weighing the three
Vo g l factors mandated by the Tenth Circuit, the
court also excluded the time as to Isaiah and Lev under
§ 3161(h)(6). Additionally, the court analyzed whether
the defendants should be released from pretrial detention
under the 90-day rule found in 18 U.S.C. § 3164. The
court determined that, at minimum, the time between August
24, 2018 and December 5, 2018 should be excluded from the
90-day calculation because, until that date, no party had
“zealously pursued a speedy trial.” Because 90
non-excluded days had not elapsed, the court ruled that the
automatic review provision of § 3164(c) had not yet been
January 15, 2019, counsel for Jacob notified the court that
his trial in the Eastern District of New York had been
continued and that he could not attend the trial scheduled to
begin on May 13, 2019. Despite his counsel's lack of
availability, Jacob did not move to continue the trial date.
January 22, 2019, the Government unsealed the second
superseding indictment. This indictment added new counts
against Jacob, Isaiah, and Lev. It also added two new
defendants: Rachel and Sally. The Government did not seek
pretrial detention for Rachel and Sally. The Government
instead sought $10 million bonds for these defendants. The
magistrate judge denied the Government's request that
Rachel and Sally be required to post bonds and they were
released on conditions.
February 14, 2019, Rachel and Sally filed a joint motion to
continue the May 13, 2019 trial date until July 25, 2019.
They argued that because they were new to the case, their
counsel could not be ready for trial by May 13. Jacob
stipulated to the motion to continue. Isaiah and Lev objected
to the motion to continue.
February 19, the court held a status conference regarding the
trial date. The court ordered the Government and the detained
parties to brief § 3164 as it relates to their pretrial
detention. The parties filed their briefs by February 24,
a detention hearing held on March 4, 2019, Lev's counsel
revealed that he had accepted a new criminal client who has a
six-week trial scheduled to begin April 29, 2019 in the
Eastern District of New York City. Thus, despite Lev 's
earlier objection to a continuance of the currently scheduled
May 13, 2019 trial date, his counsel is no longer able to
appear at a trial held on this date.
This matter involves novel questions of law regarding
renewable fuel tax credits including the biodiesel mixture
credit, the renewable diesel mixture credit, the alternative
fuel credit, and the alternative fuel mixture credit.
Second Superseding Indictment charges a total of 46 counts
against five defendants. These counts allege an intricate
scheme involving the international transportation of fuel and
the transfer of funds among a number of domestic and foreign
Discovery in this case is voluminous, consisting of
approximately 500 GB and approximately 850, 000 items.
Additionally, the government has made 116 banker's boxes
of seized hard copy material and a number of electronic
devices available for defense counsel's review. The
government has also produced 1.3 TB of pole cam footage.
Finally, approximately 145 GB of unfiltered search warrant
material has been provided to the defendants for review.
Rachel and Sally's counsel received an external hard
drive from the Government containing the initial discovery on
February 12, 2019. They represent that they need more time to
review this discovery.
Jacob's counsel is scheduled to begin a trial in the
Eastern District of New York on April 29, 2019. Jacob's
counsel represented that he will not be available for trial
in this matter until the third week of June.