Mujera Benjamin Lungaho, the North Little Rock man accused of firebombing police cars and damaging public property during protests last summer, was ordered to submit to electronic monitoring at a hearing Wednesday in federal court.
U.S. Magistrate Judge Patricia Harris warned Lungaho that continued use of marijuana would land him in jail to await trial.
Lungaho, 30, who is on home detention as a condition of his release, appeared in court by video link after U.S. probation officer Michael Umphenour submitted a report alleging repeated failures by Lungaho to complete a biometric check-in with the probation office within the required half-hour window when prompted to do so. The report listed 37 occasions between Sept. 20 and Jan. 4 in which Lungaho had failed to check in within the required time.
Umphenour's report also noted that Lungaho had submitted diluted urine specimens that tested positive for marijuana use, that he had failed to attend substance-abuse counseling on three occasions at Recovery Centers of Arkansas and that he was discharged from the program because of several failures to attend.
Assistant U.S. Attorney Stacy Williams noted that the government was not asking that Lungaho's pretrial release be revoked, but that the conditions be modified from virtual monitoring to electronic monitoring.
"I'm asking for a modification that he be placed on location monitoring because his probation officer also believes that there's some sort of issue that Mr. Lungaho does not believe that he needs to confirm when he gets home," Williams said. "And I would ask that the court admonish him not to use marijuana as he seems to keep on doing it over and over and over again, and if he does fail again, I will ask for revocation at that time."
Virtual monitoring involves a smartphone app with the user, when prompted, being required to take a photo of himself to upload to the app. The photo is compared to a photo of the subject on file to confirm identity, and the location data embedded in the photo is used to confirm the subject's whereabouts.
Umphenour explained that when prompted at random by the app, the subject has 30 minutes to check in.
Lungaho's attorney, Michael Kaiser of Little Rock, objected to the location monitoring, saying that in no instance in which Umphenour alleged Lungaho's failure to comply was his client outside the jurisdiction he was required to stay within.
"At no time has it been alleged that he was out of state or out of this jurisdiction without the permission of this court," Kaiser said. "It's completely unnecessary. He's the only defendant in this case who's on home detention despite having the same lack of criminal history. They know exactly where he is; he's a couple minutes late from checking in, but I don't think it's necessary given [Umphenour's] very candid testimony that there's no concern about him being out of jurisdiction or not where he's supposed to be."
Umphenour confirmed that Lungaho had never failed to check in when prompted, only that he sometimes checked in after the 30-minute window, which Kaiser said could be attributed to a delay in the confirmation after Lungaho had already checked in.
Kaiser asked Umphenour how many of the 37 late check-ins could be attributed to the time lag between when Lungaho received the check-in prompt and when probation officials logged into the system to verify his compliance.
"I don't have a number on that," Umphenour said. "It varies case by case."
"But you included those in this petition for revocation," Kaiser said.
"I included all of the late check-ins because they weren't included in the 30-minute window," Umphenour replied.
"You can see how someone reading this would think that he was deliberately evading you when that is not the case," Kaiser said.
"I understand that on a number of these, he checked in late," Harris interjected. "It was not extremely late, but it was after the 30 minutes. I'm not reading this as if he just blew it off completely."
Despite Kaiser's assertion that Lungaho is not a flight risk or a danger to the community, Harris ruled that he remain on home detention with virtual monitoring to be replaced by electronic monitoring, that he advise the probation office and receive preapproval of any speaking engagements and that he participate in mental health counseling.
After Kaiser's contention that Lungaho was discharged from Recovery Centers of Arkansas because it was determined that he did not have a substance abuse issue and not because he did not attend counseling sessions, the government withdrew the allegation over the discharge.
However, Harris advised Lungaho that repeated use of marijuana would result in his incarceration.
"Marijuana is illegal for use under federal law," she said. "You can't just try not to use it."
In an October indictment, Lungaho was originally charged by federal authorities with one count each of conspiracy to commit malicious property damage by use of explosive, malicious use of an explosive device to damage property, and use of an incendiary device during a crime of violence. But a superseding indictment handed up by a federal grand jury last week added 10 new counts, three of which could land him in prison for a minimum of 30 years each if he's convicted.
The superseding indictment also merged his case with those of Brittany Jeffrey, 31; Aline Espinosa-Villegas, 24; Renea Goddard, 22; and Emily Nowlin, 27, who were named in a complaint announced by the U.S. attorney's office in December.
Lungaho is now charged with three counts of conspiracy to maliciously damage and destroy property by means of fire; one count of attempt to maliciously damage and destroy a vehicle by means of fire; two counts of malicious damage and destruction of a vehicle by fire; one count of possession of a destructive device in furtherance of an attempted crime of violence; two counts of possession of a destructive device in furtherance of a crime of violence; three counts of possession of an unregistered destructive device; and one count of making a destructive device.
Lungaho has not yet been arraigned on the superseding indictment.