United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
P. KOLAR MAGISTRATE JUDGE UNITED STATES DISTRICT COURT.
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.
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.
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).
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. 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.
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.
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
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.
Standards for Pretrial Detention
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"). 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.
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
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)
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).
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.
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? 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.
The Holmes Interpretation
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
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).
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
The Himler Interpretation
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,  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. §
for this reading is summarized in United States v.
Chavez-Rivas, 536 F.Supp.2d 962 (E.D. Wise, 2008).
Chavez-Rivas 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.
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) ...