United States District Court, D. Arizona
ORDER
Honorable Diane J. Humetewa United States District Judge
Defendant
is charged with five-counts of Interstate Communications,
Containing Threat in violation of 18 U.S.C. § 875(c) and
two-counts of Cyberstalking in violation of 18 U.S.C.
§§ 2261A(2) and 2261(b). (Doc. 10). On October 3,
2019, Magistrate Judge Michelle H. Burns held a detention
hearing pursuant to 18 U.S.C. § 3142 and ordered
Defendant be detained as a flight risk. (Doc. 9). Judge Burns
issued the detention order after hearing the Government's
proffer of evidence and found:
Defendant has ties, and travels to a foreign country.
Defendant has worked overseas in Singapore for 7 years and
his wife is from Malaysia. Defendant has also worked in
China, Malaysia, Russia and Indonesia. Defendant made
statements to law enforcement that he has no intention of
remaining in the United States. Defendant's criminal
history includes convictions for resisting arrest, hit and
run, and aggravated assault on a law enforcement officer.
Defendant is [charged] sic with numerous felony counts of
making violent threats against Rust Consulting and three
Cricket Wireless executives.
(Id.). Defendant Nees appeals Judge Burns'
detention Order.
A.
Standard of Review
The
Court reviews a Magistrate Judge's detention decision
de novo. United States v. Koenig, 912 F.2d
1190, 1192-93 (9th Cir. 1990). The Court must
“review the evidence before the magistrate” along
with any additional evidence submitted by the parties and
“make its own independent determination whether the
magistrate's findings are correct, [.]”
((Id. at 1193).
The
government bears the burden of showing by a preponderance of
the evidence that the defendant poses a flight risk, and by
clear and convincing evidence that the defendant poses a
danger to the community. Unites States v. Gebro, 948
F.2d 1118, 1121 (9th Cir. 1991). To determine
whether there are conditions of release that will reasonably
assure the appearance of the defendant as required and the
safety of others, the Court shall take into account
information concerning (1) the nature and the circumstances
of the defendant's charges; (2) the weight of the
evidence against the defendant; (3) the history and
characteristics of the defendant, including his character,
physical and mental condition, family ties, employment,
financial resources, length of residence in the community,
community ties and past conduct, history relating to drug or
alcohol abuse, criminal history, and record concerning
appearance at court proceedings. See 18 U.S.C.
§ 3142(g). The weight of the evidence is the least
important factor. United States v. Townsend, 897
F.2d 989 (9th Cir. 1990). “Only in rare circumstances
should release be denied, and doubts regarding the propriety
of release should be resolved in the defendant's favor.
Gebro, 948 F.2d at 1121, citing United States v.
Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985).
The
Court has reviewed the Defendant's Motion for De Novo
Review of Detention Order (Doc. 15), the Government's
Response with attachments (Doc. 21) and the Defendant's
Reply (Doc. 25). The Court has also reviewed the detention
hearing transcript (Doc. 18) and the Pretrial Service
Office' [“PTS”] Sealed Bail Report and
Addendum. (Docs. 3 and 7). Defendant agrees that the
Court's consideration of the aforementioned obviates the
need for an evidentiary hearing. (See Doc. 24). Upon
a de novo review of the aforementioned and applying
the applicable law, the Court determines that the Government
falls short of its burden of proof as to flight risk and
danger, and that there are conditions that will reasonably
assure the Defendant's appearance at all judicial
proceedings.
B.
Analysis
At the
outset, the Court notes that the Government sought to detain
Defendant as a flight risk and not as a danger.[1] (See
Doc. 18 at 5:16-21)(“[M]ostly the United States is
asking . . . for detention as to flight”). In its
Response, the Government reiterated that the Court
“could analyze danger, yet will still focus its
argument . . . on Nees presenting a risk of flight[.]”
(Doc. 21 at 7). Nonetheless, the Court has reviewed the
Indictment and the Government's proffer of
Defendant's conduct related to the pending charges and
finds that, without more, the Government has not presented
clear and convincing evidence that Defendant poses a danger
to others. The Court's finding, in no way, diminishes the
seriousness of the allegations - sending threats to persons
and a business through electronic communication - as alleged
here. The Court does consider, however, that there are
conditions that it can use to fashion an Order to diminish
any potential future communications to the alleged
victims.[2]
At the
detention hearing, the Government offered the following
proffer as to Defendant being a flight risk: “he
resided overseas; he is married to an overseas national; he
resided over there for seven years; his passport was not
located during the search.” (Doc. 18 at 5). In its
Response, the Government reiterated the same arguments,
adding that Defendant lived in Singapore for seven years and
that he and his wife have traveled to Thailand and Singapore
together. (Doc. 21 at 8). Defendant's overseas travel and
employment is corroborated by his spouse. (Sealed Doc. 7).
Defendant
acknowledges that he has lived and worked in other countries;
however, he argues that he currently “has a good job
with a solid income here in Phoenix. (Doc. 15 at 18). The PTS
Bail Report includes that Defendant is employed and has been
employed with a company for one-and-one-half years. In
addition, Defendant's ties with other countries appears
to be abated given that his wife, and stepson, now reside
with him in Phoenix. (Doc. 15 at 18)(Exh. 1)[3]. In addition, at
the hearing, the Defendant was not in possession of his
passport. Defendant now agrees to relinquish his passport to
further quell any argument that he may flee the United
States.
At the
hearing, the Government also proffered that its agents would
testify that the Defendant told them “his wife is no
longer going to want to live in the United states, and
he's not going to want to either.” (Doc. 18 at 6).
The Defendant provided a transcription of the conversation
where Defendant made such statement to the government's
agents which the Court has reviewed. (Doc. 25 at 3). Reading
the fuller conversation, the Court concurs with Defendant
that his statements, when put in context, do not evince a
threat to flee; rather, they show Defendant's concern
that his circumstances will affect his wife's desire to
live in the United States and that he is “not
sure” he would want to either. Considering that
Defendant's wife is not a proficient English speaker, she
possesses a green card, she does not drive and that he is the
primary support for her and her son, it is understandable why
Defendant would make such statement. Obviously, Judge Burns
did not have the benefit of considering the fuller interview.
In
support of their detention request, the Government also
proffered multiple statements by Defendant expressing didtain
for or against court orders and did not care about court
procedures. (Doc. 18 at 7). Yet, a review of his prior
criminal cases show that he did appear and resolve those
matters pursuant to court orders. (Sealed Doc. 3). Espousing
...