Opinion
CASE NO. CR2-10-230(1).
September 29, 2010
ORDER
This matter is before the Court on the Government's motion for detention of the Defendant pending trial. The motion is opposed by the Defendant.
Under 18 U.S.C. § 3142(f)(2), the Government bears the burden of establishing that (a) the defendant poses a serious risk of flight, or (b) there is a serious risk that the defendant will obstruct justice. The same section also requires that a judicial officer may not order pretrial detention unless, by clear and convincing evidence, the evidence establishes "no condition or combination of conditions will reasonably assure the safety of any other person and the community."
The Court has also considered the factors set forth in 18 U.S.C. § 3142(g), which include:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including —
(A) the person's 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 or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law.
Upon consideration of the above, it is the Order of this Court, as incorporated in this document, together with the terms and conditions of the attached Exhibit A, that:
1. The Defendant shall be incarcerated at his home and shall be restricted to his residence with no exceptions. He shall be subject at all times to electronic monitoring verifying his presence in the residence. He shall remain incarcerated until a land-line telephone is installed at his residence and the electronic monitoring equipment is operational.
2. Defendant shall not conduct any business, solicit funds, accept monies or properties of any kind from others or otherwise engage in any business transactions by mail, computer, telephone, in-person, or any other means during the term of this Order.
3. Defendant will not use a computer for financial transactions of any kind, including credit-card purchases, loans or payments, or on-line banking or investment transactions.
4. In addition to the restrictions in Paragraph 3, Defendant shall only use a computer under the following conditions:
a). Only one computer will be permitted in the Defendant's residence;
b). The Defendant shall only use the computer between 9:00 a.m. and 11:00 a.m. and between 7:00 p.m. and 9:00 p.m.
c). Every person living in the Defendant's residence who intends to use or does use the computer shall submit to a biometric identification (fingerprinting) and each such person may only use the single computer in the home by presenting the biometric identification upon log-in and on a continuous basis during use of the computer.
d). The pretrial services officer shall cause to be installed on the computer software that will limit Defendant's access to financial sites (banks, credit card companies, stock traders, and other financial institutions) and allow real-time as well as stored observation of websites visited by the Defendant. The pretrial services officer may at any time inspect the computer, software and hardware. This paragraph is intended to restrict the Defendant and subject him to monitoring as to his use of the computer; it is not so intended as to others in his home, provided such persons do not attempt to assist the Defendant in unauthorized use of the computer.
5. The pretrial services officer may at any time inspect the Defendant's incoming or outgoing mail.
6. In addition to these special restrictions, the Defendant is also subject to the terms and conditions set forth in attached Exhibit A.
The Defendant will meet with his attorney only upon prior approval of the pretrial services officer and upon such conditions as she may reasonably impose.
IT IS SO ORDERED.
9-29-2010 DATE Eastern Columbus ORDER SETTING CONDITIONS OF RELEASE 42 U.S.C. § 14135a (if blank, to be notified) Place Date and Time Release on Personal Recognizance or Unsecured Bond ADDITIONAL CONDITIONS OF RELEASE (only if above is organization) (only if above is an organization) Custodian or Proxy Date Pretrial Services as directed 21 U.S.C. § 802 Curfew. Home Detention. Home Incarceration. except for medical necessities and court appearances or other activities specifially approved by the court.
ADVICE OF PENALTIES AND SANCTIONS
TO THE DEFENDANT:YOU ARE ADVISED OF THE FOLLOWING PENALTIES AND SANCTIONS:
Violating any of the foregoing conditions of release may result in the immediate issuance of a warrant for your arrest, a revocation of your release, an order of detention, a forfeiture of any bond, and a prosecution for contempt of court which could result in imprisonment, a fine, or both.
If you commit a federal offense while on release, you will receive an additional consecutive prison term of not more than ten years if the offense is a felony and not more than a year if the offense is a misdemeanor
It is a crime punishable by up to ten years in prison, and a $250,000 fine, or both, to: obstruct a criminal investigation; tamper with a witness, victim, or informant; retaliate or attempt to retaliate against a witness, victim, or informant; or intimidate or attempt to intimidate a witness, victim, juror, informant, or officer of the court. The penalties for tampering, retaliation, or intimidation are significantly more serious if they involve a killing or attempted killing.
If, after release, you knowingly fail to appear as the conditions of release require, or to surrender to serve a sentence, you may be prosecuted for failing to appear or surrender and additional punishment may be imposed. If you are convicted of:
(1) an offense punishable by death, life imprisonment, or imprisonment for a term of fifteen years or more — you will be fined not more than $250,000 or imprisoned for not more than 10 years, or both;
(2) an offense punishable by imprisonment for a term of five years or more, but less than fifteen years — you will be fined not more than $250,000 or imprisoned for not more than five years, or both;
(3) any other felony — you will be fined not more than $250,000 or imprisoned not more than two years, or both;
(4) a misdemeanor — you will be fined not more than $100,000 or imprisoned not more than one year, or both.
A term of imprisonment imposed for failure to appear or surrender will be consecutive to any other sentence you receive. In addition, a failure to appear or surrender may result in the forfeiture of any bond posted.
Acknowledgment of the Defendant
I acknowledge that I am the defendant in this case and that I am aware of the conditions of release. I promise to obey all conditions of release, to appear as directed, and surrender to serve any sentence imposed. I am aware of the penalties and sanctions set forth above. Defendant's Signature Address City and State Telephone Number
_______________________________________________ _______________________________________________ _______________________________________________ _______________________________________________ Directions to the United States Marshal 9-29-2010 Judicial Officer's Signature Printed name and title () The defendant is ORDERED released after processing. ( ) The United States marshal is ORDERED to keep the defendant in custody until notified by the clerk or judge that the defendant has posted bond and/or complied with all other conditions for release. If still in custody, the defendant must be produced before the appropriate judge at the time and place specified. Date: ___________________________________________________ ___________________________________________________