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United States v. Gibson

United States District Court, N.D. Indiana, Hammond Division

May 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEVON GIBSON, Defendant.

          OPINION AND ORDER

          JOSHUA P. KOLAR MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.

         This matter is before the Court on the United States of America's oral motion to detain Defendant Devon Gibson. While the appropriate legal standards are unsettled and there are facts weighing in both directions, the Court concludes that the government has failed to meet its burden of proof on the current record. After a brief summary of the hearings in this case, the Court will turn to a discussion of the legal standards this Court finds applicable before moving to an analysis of the factors that apply to all detention hearings.

         On April 17, 2019, Gibson was charged with three counts of bank fraud in violation of 18 U.S.C. § 1344(1) and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). Gibson was arrested on May 15, 2019, and his initial appearance was held the same day. The government moved for detention on the grounds Gibson is a serious flight risk under 18 U.S.C. § 3142(f)(2) and noted that pending review of Gibson's prior criminal history, it would consider also moving under § 3142(f)(1)(D). As discussed below, resolving how the government may meet its burden of proof under subsection (f)(1) versus subsection (f)(2) is necessary to rule on the detention motion. At the government's request, the Court continued the detention hearing to May 17, 2019.

         At the May 17, 2019 hearing, the government confirmed it was moving forward with its detention motion solely on the ground that Gibson is a serious flight risk under § 3142(f)(2)(A). The government also highlighted the § 3142(g)(4) factor of danger to the community. The United States Probation Officer recommended detention due to the fact that there were no conditions or combination of conditions that would reasonably assure the safety of the community or Gibson's appearance. The Court considered argument, heard proffered evidence and stated, "if this were the typical case where [it] was looking at both danger to the community and risk of flight, this would be very easy; you would be remanded to the custody of the marshal." (Hr'g Tr. vol. 1, 17:10-13, ECF No. 17).

         Gibson requested a continuance of the detention hearing to allow for a home visit to determine eligibility for electronic monitoring. After the home visit, the United States Probation Officer's ultimate recommendation for Gibson's detention remained.[1] The detention hearing was continued to May 23, 2019, at which time counsel were provided with the opportunity to address legal issues and make additional arguments. The Court indicated that it found the government had not met its burden regarding detention, Gibson was not released after the May 23, 2019 hearing, but the Court indicated how it intended to proceed, set forth conditions it found appropriate, and noted that the government would have a chance to suggest additional conditions.[2]

         The hearing was continued to May 28, 2019, for the Court to hear from a potential third party custodian and, assuming issues were resolved regarding conditions of release, the issuance of an order setting conditions of release. The government asked that the Court hold its order of release in abeyance. The Court indicated that it would hear further argument on that issue at the May 28, 2019 hearing.

         Prior to a final release order, a United States Probation Officer testified at the May 28, 2019 hearing and clarified that an earlier recommendation, which was silent as to Gibson's risk of nonappearance, was not intended to suggest that such grounds no longer justified detention. The Court indicated that this change was relevant to its earlier determination. Both parties were given an opportunity to question the United States Probation Officer and offer any additional evidence or argument. The government initially declined to do so, but did examine the United States Probation Officer after Gibson's counsel.

         After reviewing the matter further, and considering the additional testimony and argument presented on May 28, 2019, the Court issued an order setting conditions of release. The Court again found that the government failed to meet its burden of proof and imposed a number of very strict conditions of release. While Gibson earlier requested only location monitoring with a curfew, the Court ultimately determined that home detention, with location monitoring, was appropriate. Gibson's mother was questioned and will serve as a third party custodian, a task she has not undertaken in past instances where Gibson failed to appear in court. To alleviate concerns related to the potential for ongoing criminal activity, the only device capable of receiving any internet connection in Gibson's home is limited to his mother's cell phone, which is to remain in her custody at all times. Finally, Gibson's mother was not merely named a third party custodian. She also agreed to serve as a surety along with Gibson. They stand to lose $20, 000, an amount that would impose significant economic hardship should Gibson violate the terms of his release or fail to appear. As discussed below, the government's case was not without some compelling evidence. However, it seemed to rest on the notion that the defendant was simply "ineligible" for conditions without carefully considering whether it met its burden of proof that no conditions were capable of reasonably assuring Gibson's appearance as required.

         I. Standards for Pretrial Detention

         Bail pending trial has long been a part of this nation's criminal procedure. The Eighth Amendment to the Constitution of the United States prohibits excessive bail. The First Congress enacted the Judiciary Act of 1789, providing that "upon all arrests in criminal cases, bail shall be admitted, except where the punishment may be death," in which case bail was only permitted in certain circumstances. Judiciary Act, § 33, 1 Stat. 73, 91 (1789). Somewhat more recently, a 1966 law dictated pre-trial release in non-capital cases "unless the [judicial] officer determines, in the exercise of his discretion, that such a release will not reasonably assure the appearance of the person as required." Bail Reform Act, Pub. L. No. 89-465, § 3146(a) 80 Stat. 214, 214 (1966). Detailed review of this history is for another day. In short, while constitutional and statutory principles have limited bail determinations, courts always retained the power to assure the appearance of a criminal defendant and guarantee the administration of justice. The current statutory framework is the Bail Reform Act of 1984 ("Bail Reform Act").[3] Under the Bail Reform Act, judicial officers are often called upon to determine whether a defendant is a flight risk or a danger to the community. 18 U.S.C. § 3142, et seq. In some ways, this "mark[ed] a radical departure from former federal bail policy. Prior to the 1984 Act, consideration of a defendant's dangerousness in a pretrial release decision was permitted only in capital cases." United States v. Himler; 797 F.2d 156, 158 (3d Cir. 1986).

         In United States v. Salerno, the Supreme Court upheld the Bail Reform Act. Against this backdrop of a statutory scheme that prior to the Act allowed for pretrial detention based upon a defendant's risk of flight, the Supreme Court found the Act did not violate constitutional principles, noting:

The Bail Reform Act carefully limits the circumstances under which detention may be sought to the most serious of crimes. See 18 U.S.C. § 3142(f) (detention hearings available if case involves crimes of violence, offenses for which the sentence is life imprisonment or death, serious drug offenses, or certain repeat offenders),

United States v. Salerno, 481 U.S. 739, 747 (1987) (emphasis added).

         The legislative history of the Bail Reform Act, Salerno, numerous other cases, and common sense dictate that the government cannot fulfill its duty to protect the public without the ability to detain those arrested for the most dangerous crimes when that is the only way to ensure the safety of the community pending trial. Salerno, 481 U.S. at 749 ("The government's interest in preventing crime by arrestees is both legitimate and compelling."); Cf. ODonnell v. Harris Cty., Tex., 251 F.Supp.3d 1052, 1075 (S.D. Tex. 2017) ("Congress wanted to address the alarming problem of crimes committed by persons on release and to give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released." (internal quotation marks omitted)), Individuals have a "strong interest in liberty," but this interest "may, in circumstances where the government's interest is sufficiently weighty, be subordinated to the greater needs of society." Salerno, 481 U.S. at 750-51. This balancing of liberty interests versus public safety led to a narrowly crafted set of conditions under which detention is permitted. Pretrial detention can impact a defendant's ability to prepare a defense, is costly, and while not intended as punishment nonetheless cabins a defendant's freedom, imposing a hardship on both the defendant and the defendant's family. See Barker v. Wingo, 407 U.S. 514, 532-33 (1972); Schultz v. State, 330 F.Supp.3d 1344, 1374-75 (N.D. Ala. 2018), appeal docketed, No. 18-13898 (11th Cir. Sept. 13, 2018).

         Under the Bail Reform Act, courts "shall hold" detention hearings in two instances. The first instance is when the case involves any one of the enumerated serious offenses outlined in § 3142(f)(1), so called "(f)(1)" cases involving allegations of particularly dangerous criminal activity. The second instance is when one of the "serious" concerns about risk of flight or obstruction of justice are present, the so called "(f)(2)" cases. 18 U.S.C. § 3142(f)(2). Once one of these conditions is met, a hearing is held "to determine whether any condition or combination of conditions . ., will reasonably assure the appearance of such person as required and the safety of any other person and the community." Id. § 3142(f). That is, there can be no detention hearing- and therefore no detention-unless an (f)(1) or (f)(2) criterion is met.

         Even then, detention is only proper where, after a hearing, "the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Id. § 3142(e). Here, while the government has moved to detain Gibson only because the (f)(2) predicate of serious risk of flight was met, the government also argues for Gibson's detention because he is a danger to the community. The law is unclear regarding whether a judge may detain a defendant in such a case solely because the defendant is such a danger to the community that no conditions can reasonably assure public safety. That is, after holding a detention hearing on the basis that the defendant is a serious risk of flight, if a judge is convinced that the government has not met its burden of showing that there is no condition or combination of conditions that can reasonably assure the defendant's appearance as required, is that the end of the analysis, or is the judge to move on to consider danger to the community as the sole reason to detain the defendant pending trial?[4] The Court's limited review of cases suggests this is an unresolved issue. See U.S. v. Parahams, 3:13-CR-005-JD, 2013 WL 683494, at *3 (N.D. Ind. Feb. 25, 2013) (noting the issue but not resolving it because detention was warranted on other grounds). Two interpretations of the Bail Reform Act, which the Court will call the Holmes and the Himler interpretations after United States v. Holmes, 438 F.Supp.2d 1340 (S.D. Fla. 2005) and United States v. Himler, 797 F.2d 156 (3d Cir. 1986), respectively, answer this question differently.

         A. The Holmes Interpretation

         The Holmes interpretation finds that subsection (f) provides criteria that serve only as prerequisites for holding a detention hearing. 438 F.Supp.2d 1340. In this view, once a prerequisite is met, a court holds a detention hearing and may consider danger regardless of the (f) criterion under which the hearing is held. For example, the government could move for detention based on a serious risk of flight. After a hearing, the court could subsequently find that there are conditions that can reasonably assure the defendant's appearance, but also find that detention is warranted because the defendant presents a danger to the community such that no condition or combination of conditions of release could reasonably assure the safety of the community.

         This approach finds some support in the text of the Bail Reform Act. The language in subsection (f) directing a court to determine "whether any condition or combination of conditions . . . will reasonably assure ., . the safety of. . . the community" is found before the division into (f)(1) and (f)(2). Id. § 3142(f). Taking the approach in Holmes, one could argue that a plain reading of the statute directs courts to consider the safety of the community in cases where there is a serious risk that the defendant will flee-the criterion found in (f)(2)(A). Subsection (g) reinforces this reading by providing that courts should consider "the nature and seriousness of the danger to any person or the community that would be posed by the person's release." Id. § 3142(g)(4). Section (e) similarly provides,

If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, such judicial officer shall order the detention of the person before trial.

Id. § 3142(e)(1).

         A court following the Holmes interpretation could point out that Congress indicated three times-in subsections (e), (f), and (g) of section 3142-that a court, when determining whether to detain an individual, should consider the danger that the defendant poses to the community. See 438 F.Supp.2d at 1351 ("[T]his Court concludes that dangerousness as a grounds for detention is not excluded in cases involving detention hearing(s) brought under (f)(2)."); see also U.S. v. Ritter, 2:08PO00031-53, 2008 WL 345832, at *2 (W.D. Va. Feb. 6, 2008) ("I am of the opinion that the plain language of the Bail Reform Act authorizes the court to detain a defendant when the clear and convincing evidence shows that the defendant presents a danger to the community and the court finds that there are no conditions or combination of conditions which the court may impose upon the defendant which will protect the community."). While the government did not significantly develop this argument as to Gibson, its rough outline can be seen since the government moved for detention on the sole basis that there is a serious risk that Gibson will flee (an (f)(2) criterion) and also referenced the subsection (g) factor of danger to the community.

         B. The Himler Interpretation

         Another line of cases finds that courts may not consider dangerousness as a factor weighing in favor of detention when a motion for detention is made only under 18 U.S.C. § 3142(f)(2). As with the Holmes interpretation, this reading is based on a reading of the text of the Bail Reform Act. Moreover, as the Third Circuit Court of Appeals recognized in Himler, [5] to do otherwise fails to recognize the Bail Reform Act is a narrowly-drafted statute aimed at danger from "a small but identifiable group of particularly dangerous defendants." 797 F.2d 156, 160 (3d Cir. 1986) (citing S. Rep. No. 98-225, at 6-7 (1983)) (finding that danger to the community should not be considered as a ground for detention under 18 U.S.C. § 3142(f)(2)).

         Support for this reading is summarized in United States v. Chavez-Rivas, 536 F.Supp.2d 962 (E.D. Wise, 2008). Chavez-Rivas[6] found squarely that since the government's motion was brought on (f)(2) grounds, the defendant could not be detained as a danger to the community. Id. at 968-69. The Chavez-Rivas analysis noted that the Bail Reform Act authorizes detention only in seven specific circumstances, enumerated in the statute. Id. at 965-66. While these circumstances include "a serious risk that the defendant will flee," they do not include a general showing of danger to any person or to the community. Id. at 966 (citing 18 U.S.C. § 3142(f)(2)(A)). The Chavez-Rivas court found support for this conclusion in United States v. Byrd, which stated that "even after a hearing, detention can be ordered only in certain designated and limited circumstances, irrespective of whether the defendant's release may jeopardize public safety." United States v. Byrd, 969 F.2d 106, 109-10 (5th Cir. 1992); Chavez-Rivas, 536 F.Supp.2d at 966. The Byrd court further held that, in agreement with Himler and the First Circuit Court of Appeals in United States v. Ploof, 851 F.2d 7 (1988), "a defendant's threat to the safety of other persons or to the community, standing alone, will not justify pre-trial detention." 969 F.2d at 110.

         This Court places less weight on Byrd, however, because it did not squarely involve the application of (f)(2)(A). Instead, Byrd is one of many cases holding that the government cannot simply move for detention based on a danger to the community without reference to any of the prerequisites set forth in (f)(1) ...


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