Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 04-cr-00103-REB-04 UNITED STATES OF AMERICA Plaintiff, v. 4. CHARLES LEWIS, Defendant. _____________________________________________________________________ GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY CONDITIONS OF RELEASE _____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, hereby responds to defendant Lewis' Motion to Modify Conditions of Release [# 1360] 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

Document 1367

Filed 09/06/2007

Page 2 of 7

(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 ten guilty verdicts against the defendant [see # 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 restrictive modifications to his conditions of release which limited his movement from the halfway house where he currently resides to licensed healthcare providers. (See the transcript of that hearing, attached as Exhibit 1, at 10-16.) 3. 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 2

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 3 of 7

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 request is not based on new, material information. His physical ailments described in the physician's letter attached to his motion have existed since the beginning of the case. At the time of the remand hearing, Judge Blackburn was reminded of the defendant's various health conditions, including his colitis and his prostate condition. (Ex. 1 11-12.) At that time, the defendant did not object at that time to his restriction to the halfway house with access to health care providers. (Id. 14.) Neither the defendant's motion nor the physician's letter on which the defendant's request is based provides any explanation as to how his circumstances have changed. The defendant makes no allegation, for example, that his stress level is having a more pronounced effect on his health now, several months after the jury returned its verdicts, than it did at the conclusion of a trial during which he was convicted of ten felonies. The defendant's request therefore should be denied because it is not based on new information. 5. Assuming that the defendant's motion contains new information about his health, it does not contain any information addressing his burden of demonstrating by 3

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 4 of 7

clear and convincing evidence that he will be neither a flight risk nor a danger to the community, nor does it explain how his medical condition affects the factors set forth in Section 3142(g). His doctor's apparent speculation that the defendant's stress "may contribute to worsening of his colitis" and that he "may benefit from a less stressful, home confinement situation" (emphasis added) is simply insufficient justify modifying his bond. Judge Blackburn demonstrated his concern that the defendant posed a risk of flight and/or a danger to the community be re-imposing previously rescinded conditions restricting the defendant to the halfway house except for visits to health care providers. This concern was presumably based in part on the evidence at trial, which demonstrated that the defendant committed at least some of the conduct for which he was convicted while on probation for a state criminal theft conviction. The defendant has not even attempted to carry his burden of demonstrating, by clear and convincing evidence, that allowing him to live in an unsupervised environment with his daughter (who was also involved in marketing the fraudulent high-yield investment program underlying the criminal charges in this case) will not increase his likelihood or his ability to flee or to commit additional frauds. His failure to carry this burden provides a second ground for the denial of his motion. 6. Finally, the defendant's motion suggests that he is asking to remain in some form of release status, even after sentencing, pending the completion of the civil proceedings in SEC v. Capital Holdings, LLC et al., 03-cv-00923-REB. This request is premised on a factor not contemplated by the Bail Reform Act and is 4

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 5 of 7

premature. In order to remain free on bond pending an appeal, a defendant must demonstrate, by clear and convincing evidence, not just that he is not likely to flee or pose a danger to the community, but also: that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in­ (I) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. 18 U.S.C. § 3143(b)(1)(B). Nowhere does the Bail Reform Act indicate that a defendant may remain on bond, even after sentencing, so that he might more easily represent himself in civil litigation. That said, the government respectfully suggests that, to the extent the defendant is requesting a bond pending appeal, any ruling on this request should be deferred until the time of his sentencing for a ruling by the judge who presided over the trial and is best positioned to make the findings required by Section 3143(b)(1)(B). THEREFORE, the government respectfully requests that defendant Lewis' Motion to Modify Conditions of Release [# 1360] be denied.

5

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 6 of 7

Respectfully submitted this 6th day of September, 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]

6

Case 1:04-cr-00103-REB

Document 1367

Filed 09/06/2007

Page 7 of 7

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 6th day of September, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO MODIFY CONDITIONS OF RELEASE 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]

7