Free Response in Opposition - District Court of Colorado - Colorado

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

Document 1292

Filed 06/25/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 04-cr-00103-REB-06 UNITED STATES OF AMERICA Plaintiff, v. 6. MICHAEL SMITH, Defendant. _____________________________________________________________________ GOVERNMENT'S RESPONSE TO MOTION TO MODIFY BOND PENDING SENTENCING _____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, hereby responds to defendant Smith's Motion to Modify Bond Pending Sentencing [# 1283] and requests that the motion be denied for the reasons that follow: 1. The Bail Reform Act of 1984 requires a court to order the detention of a convicted defendant unless that defendant can carry the burden of demonstrating "by clear and convincing evidence that [he] is not likely to flee or pose a danger to the safety of any other person or the community if released . . . ." 18 U.S.C. § 3143(a); United States v. Affleck, 765 F.2d 944, 946 (10th Cir. 1985). A defendant must carry this burden with reference to the factors set out in Section 3142(g), including: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;

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

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(2) the weight of the evidence against a person; (3) the history and characteristics of the person, including ­ (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence . . .; and (C) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. § 3142(g). Danger to the community, for the purposes of this statute, includes "danger that the defendant might engage in [non-violent] criminal activity to the detriment of the community." United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989) (quoting legislative history for the Bail Reform Act). 2. On May 29, 2007, at the conclusion of a remand hearing after the jury returned three guilty verdicts against the defendant [# 1277], Judge Blackburn ruled that the defendant had carried his burden of demonstrating that he was neither a flight risk nor a danger to the community, but only with modifications to his conditions of release which severely restricted his liberty. (A transcript of that hearing is attached as Exhibit 1.) Judge Blackburn modified the defendant's bond to include conditions that required him to report to his supervising probation officer three times a week and to be subject to in-home detention secured by electronic monitoring. (Ex. 1, p. 28) Concerning the former condition, Judge Blackburn noted that, "If the defendant flees, he only gets a 48-hour head start." (Id.) Judge Blackburn also ruled that "to the extent that Mr. Smith has been permitted interstate travel, that is revoked, annulled, and rescinded effective 2

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forthwith." (Id.) 3. The defendant cites no authority to support his request for a modification of his bond conditions. Although the Bail Reform Act contains no provision which specifically addresses requests for modification of bond pending sentencing, in general, the statute allows for the reconsideration of an order regarding bond only: if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release such as will reasonably assure the appearance of such person and required and the safety of any other person and the community. 18 U.S.C. § 3142(f). The Tenth Circuit has affirmed that a party's possession of new, material information is the only circumstance which allows the review of an initial detention order by the same judicial officer. United States v. Cisneros, 328 F.3d 610, 614-15 (10th Cir. 2003). There is no reason to conclude that this provision is not also applicable to a bond order pending sentencing. 4. The defendant's motion does not satisfy the initial threshold by even alleging that it is based on information that was not known to him at the time of the remand hearing. There is every reason to believe, however, that the "business reasons" on which the motion rests were known to the defendant at that time, particularly because he links the motion to a pre-conviction bond condition which allowed him to travel for what appear to be the same business reasons. His motion should be denied because it is not based on new information. 5. Assuming that the defendant's "business reasons" for traveling to Idaho do constitute new information, the defendant's motion also fails to explain how 3

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

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those reasons are material to the questions of whether he will pose a flight risk or a danger to the community or how they affect the factors set forth in Section 3142(g). The stringent conditions imposed by Judge Blackburn demonstrated his obvious concern that the defendant posed a risk of flight. The defendant has not even attempted to carry his burden of demonstrating, by clear and convincing evidence, that allowing him interstate travel will not increase the likelihood or his ability to flee. His failure to carry this burden provides a second ground for the denial of his motion. THEREFORE, the government respectfully requests that defendant Smith's Motion to Modify Bond Pending Sentencing [# 1283] be denied. Respectfully submitted this 25th day of June, 2007. TROY A. EID United States Attorney

s/Matthew T. Kirsch Matthew T. Kirsch Wyatt B. Angelo Assistant United States Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected] [email protected]

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

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 25th day of June, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO MOTION TO MODIFY BOND PENDING SENTENCING with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected]

Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, Esq. [email protected]

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected]

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