Opinion
NO. 4:01-CR-053-A
April 25, 2002
MEMORANDUN OPINION and ORDER
Came on for consideration the motion of defendant, PETER ADE NGUFOR, to reconsider revocation of pretrial release. The court, having considered the motion, the record, and applicable authorities, finds that the motion should be denied.
I. History of the Proceedings
On March 14, 2001, defendant was charged in a two-count indictment with unlawfully and knowingly embezzling one firstclass letter intended to be conveyed by mail, in violation of 18 U.S.C. § 1709 (Count 1), and with unlawfully possessing a Capital One Visa credit card issued to another person which had been stolen from the United States mail, knowing that said credit card had been stolen, in violation of 18 U.S.C. § 1708 (Count 2). On February 22, 2002, defendant made his first appearance before United States Magistrate Judge Charles Bleil. Judge Bleil appointed the Federal Public Defender for the Northern District of Texas to represent defendant. He ordered defendant to pay $400 toward his attorney's fees in four monthly installments of $100 each, commencing March 5, 2002. He also set conditions of release, including the condition that defendant surrender any passport to the U.S. District Clerk's office.
On March 1, 2002, defendant appeared before the court for arraignment. At that time, the court discovered that defendant had not turned in his passport as required by his conditions of release. When the court inquired as to why the passport had not been surrendered, defendant gave conflicting and inconsistent answers. The court ordered defendant into custody for violation of his conditions of release.
Later on March 1, 2002, defendant filed a motion to reconsider revocation of his pretrial release. The motion stated that defendant's passport, which had been mailed from Maryland by a family member, had been received that very day at defendant's home. At the end of the day, defendant's passport, issued by the country of Cameroon, was turned over to the District Clerk.
On March 6, 2002, the court held a hearing on defendant's motion to reconsider revocation of pretrial release. Both defendant and his wife were sworn and testified at the hearing, as did the Pretrial Services officer. The officer's testimony was that defendant failed to report immediately after the Marshal released him, as he had been ordered to do. The officer left messages for defendant at his home and work and defendant never returned the calls. The officer had to go to defendant's home to meet with him. On March 1 before arraignment, defendant told the officer he was still looking for his passport and did not know where it was. Defendant, on the other hand, testified that he knew on February 26 that his sister in Maryland had his passport issued by the Republic of Cameroon and that he had left it at her house when he visited there. He further testified that he is a naturalized United States citizen and that he had been issued a U.S. passport. He said that the U.S. passport had expired. The court recessed the hearing to give defendant an opportunity to supplement the record with information regarding his citizenship and whether he had a United States passport.
On March 8, 2002, defendant filed a supplemental motion to reconsider the revocation of his pretrial release. The motion had as an attachment a fax transmission to the Pretrial Services officer from the United States Department of State Office of Passport Policy and Advisory Services stating that defendant was issued a United States passport on December 3, 1993, and that the passport would expire on December 2, 2003. The motion additionally stated that defendant's wife had given defendant's counsel defendant's original certificate of naturalization issued on September 2, 199:3, in the Northern District of Texas.
On March 12, 2002, J. Warren St. John entered his appearance as counsel for defendant. By order signed March 14, 2002, the court granted the motion of the Federal Public Defender to withdraw and substituted Mr. St. John as counsel for defendant.
By order signed March 13, 2002, the court denied defendant's motions to reconsider his revocation of pretrial release. The court noted that even though defendant had two passports, one issued by the Republic of Cameroon and the other issued by the United States, as of the morning of March 1, 2002, he had not surrendered either of them, thus violating one of his conditions of supervised release. Additionally, defendant had given false information to the Pretrial Services officer on the morning of March 1, 2002, and to the court on the subject of the whereabouts of his passports.
By order signed April 3, 2002, the court noted that defendant had not made any of the $100 payments toward his attorney's fees as ordered by Judge Bleil. The court ordered that defendant be prepared to show cause at trial on April 15, 2002, why actions should not be taken against him because of his noncompliance with Judge Bleil's order. On April 10, 2002, defendant filed a response to the order, stating that he "has been unable to pay said attorney's fees." Def.'s Resp. to Order to Show Cause at 2. The insinuation was that defendant had been unable to pay the attorney's fees because he was in custody, not because he lacked the resources to do so.
On April 10, 2002, the District Clerk received defendant's United States passport.
On April 12, 2002, defendant appeared for rearraignment, entering a plea of guilty as to Count 1 of the indictment. By order signed April 12, 2002, the court ordered that the matter of whether defendant should be sanctioned for his noncompliance with the February 22, 2002, order of the Magistrate Judge regarding payment of attorney's fees be held in abeyance pending sentencing. On April 24, 2002, defendant paid the $400 into the registry of the court.
II. The Test for Release Pending Sentence
Now that defendant has pleaded guilty, the burden is on him to show 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. Specifically,
(a) Release or Detention Pending Sentence. (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. § 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c)18 U.S.C. § 3143 (a).
III. Whether Defendant Can Meet The Test
Defendant's motion fails to recognize that he is now subject to the test set forth in § 3143(a). He simply urges that now that he has finally complied with the conditions of release by turning in his passports and paying the $400, the court should reconsider the revocation of his pretrial release. Even assuming defendant "presents no indication that he will present a danger to the community, any other person, or is likely to flea the jurisdiction of the Court," the test is not met. In fact, there is nothing to even hint that the required showing could be made. Instead, defendant has shown by his actions that he is unwilling or incapable of meeting requirements imposed on him. Further, his testimony on every occasion he has been before the court has been untruthful and deceptive.
IV. ORDER
For the reasons discussed herein,
The court ORDERS that defendant's motion to reconsider revocation of pretrial release be, and is hereby, denied.