Free Order on Motion for Bond - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

Document 1307

Filed 06/28/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 6. MICHAEL SMITH, Defendant.

ORDER ON DEFENDANT MICHAEL SMITH' S MOTION TO MODIFY BOND PENDING SENTENCING

Defendant Michael Smith has moved to modify bond conditions (Docket #1283) to permit him to travel from Spokane, Washington to Post Falls, Idaho (30-45 minutes from his home, according to the Probation Office for the Eastern District of Washington) several times a week to conduct his mortgage business. The motion has been referred to me. For the following reasons, I grant the motion as specified hereafter. Defendant has been convicted of three counts of Securities Fraud. The potential sentence for each count is five years imprisonment, a $250,000 fine or both, and three years supervised release. The government has asserted in its sentencing statement that the suggested range of imprisonment under the (now advisory) Sentencing Guidelines is 235-293 months, reduced to 180 months based on the statutory maximums and the United States Sentencing Guidelines § 5G1.1(a). He will be sentenced on September 7, 2007 before the Honorable Robert Blackburn. After Defendant' conviction, Judge Blackburn ordered the release of Defendant on May 29, s 2007, finding pursuant to 18 U.S.C. § 3143(a) that Defendant had established clear and convincing

Case 1:04-cr-00103-REB-MEH

Document 1307

Filed 06/28/2007

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evidence that he is not likely to pose a danger to the community or a risk of flight. Judge Blackburn imposed a reporting requirement of three times per week (Monday, Wednesday and Friday) to his Probation Officer, and further revoked any permission to travel interstate. Prior to that time, Defendant had been permitted to travel to various states in the Western United States to conduct his business. Finally, Judge Blackburn imposed electronic monitoring on Defendant. In opposing the motion, the government relies principally on Defendant' failure to establish s a material change in conditions or information since Judge Blackburn' order, as required by 18 s U.S.C. § 3142(f) for motions to modify pretrial conditions of release. The government' argument s is that Defendant' need to travel to Idaho was known (at least to Defendant) at the time of the s proceeding before Judge Blackburn, and Defendant failed to raise it at that time. The government also argues that Defendant has failed to establish that his need to travel to Idaho is material to the issue of whether he poses a flight risk, and suggesting that Judge Blackburn " demonstrated his obvious concern that the defendant posed a risk of flight." Government' Response at 4. s The Court finds that it can consider modification of the conditions of release pursuant to 18 U.S.C. § 3143(a), which appears to give the Court inherent authority to monitor the release of convicted persons pending their sentencing. See United States v. Davis, 826 F. Supp. 404 (D. Utah 1993) (discussing the Court' authority to reconsider presentence conditions of release). In addition, s because the conditions of release are theoretically being relaxed, the Court believes that under 18 U.S.C. 21 3145(a)(1), the government is entitled to an immediate review of this Order if it so chooses. As a matter of law, as noted above, Judge Blackburn found that, in fact, by clear and convincing evidence, the Defendant does not pose a risk of flight pending sentencing. Of course, the -2-

Case 1:04-cr-00103-REB-MEH

Document 1307

Filed 06/28/2007

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government, this Court, and the public have an interest in the Defendant appearing before Judge Blackburn on September 7, 2007 for his sentencing and potential commitment to the Federal Bureau of Prisons. However, the government did not contend, and could not logically argue, that traveling briefly and occasionally across the Washington/Idaho border increases Defendant' risk of flight in s the slightest. Indeed, under his current conditions of release, Defendant could travel to the precipice of the Canadian border without being in violation of those conditions. The Court believes that Judge Blackburn intended to revoke Defendant' ability to travel freely in the Western United States, and s under the conditions stated in the following paragraph, the Court believes that the spirit of Judge Blackburn' ruling will remain undisturbed. s The Court will permit Defendant to travel to Post Falls, Idaho no more than two times in any given week, limited to Monday through Friday. On either of those two days in any given week, Defendant shall be permitted to be outside the Eastern District of Washington only during the hours of 8:00 o' clock a.m. to 4:00 o' clock p.m. for the sole purpose of business travel to and from Post Falls, Idaho. In addition to the reporting requirements imposed by Judge Blackburn, on any day that Defendant actually travels to Post Falls, Idaho, Defendant shall report in person or by telephone (as directed by his Probation Officer) by 8:00 o' clock a.m. and between 4:00 o' clock p.m. and 5:00 o' clock p.m. In conclusion, based upon the record before me, I find that the Defendant has established by clear and convincing evidence under 18 U.S.C. § 3143 that the modification to his conditions of release with regard to travel to Post Falls, Idaho will not result in any change in the risk of flight or danger to the community. Accordingly, it is ORDERED as follows: 1. The Motion by Defendant Michael Smith Requesting Modification of -3-

Case 1:04-cr-00103-REB-MEH

Document 1307

Filed 06/28/2007

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Conditions of Bond [Filed June 20, 2007; Docket #1283] is granted as specified herein. 2. The Order on Remand Setting Conditions of Release Prior to Sentencing is hereby modified to provide that Defendant Michael Smith is allowed to travel to Post Falls, Idaho as specified herein. Defendant may travel to Post Falls, Idaho no more than two times in any given week, limited to Monday through Friday. On either of those two days in any given week, Defendant shall be permitted to be outside the Eastern District of Washington only during the hours of 8:00 o' clock a.m. to 4:00 o' clock p.m. for the sole purpose of business travel to and from Post Falls, Idaho. In addition to the reporting requirements imposed by Judge Blackburn, on any day that Defendant actually travels to Post Falls, Idaho, Defendant shall report in person or by telephone (as directed by his Probation Officer) by 8:00 o' clock a.m. and between 4:00 o' clock p.m. and 5:00 o' clock p.m. All other conditions of Defendant Michael Smith' release remain in full force and s effect.

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Dated at Denver, Colorado, this 28th day of June, 2007. BY THE COURT: s/ Michael E. Hegarty Michael E. Hegarty United States Magistrate Judge

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