Opinion
Criminal Action Number 02-062, Section "L" (5)
March 14, 2002
ORDER REASONS
Before the Court is the Defendant's Motion for Review of Magistrate's Release Order and for an Expedited Hearing. The motion for expedited hearing is GRANTED and the motion is set for hearing on Wednesday, March 13, 2002. For the following reasons, Defendant's Motion for Review is DENIED IN PART AND GRANTED IN PART.
I. BACKGROUND
Defendant, Motilall L. Sudeen, was indicted on February 28, 2002, and is charged, in a 38-count indictment, with conspiracy, wire fraud, money laundering, and other crimes. On March 1, 2002, the Defendant was arrested at his home in Mississippi. Upon motion of the Government, a detention hearing was held on March 4, 2002. At that hearing, the United States Magistate Judge ordered pretrial release, subject to a $1,000, 000 bond, to be secured by cash or property. On March 7, 2002, the Defendant filed a motion to modify the financial conditions of release. An expedited hearing was held before the Magistrate Judge on March 8, 2002, and the "cash or property" portion of the bond was reduced to $706,000. Under the modified conditions of release, the balance of the $1,000,000 bond could be in the form of a personal surety.
Defendant now moves for review and modification of the Magistrate Judge's release order. The Defendant contends that he is presently able to secure a $465,000 property bond and that his children are able to satisfy the $300,000 personal surety component of the revised conditions. Defendant asserts, however, that he is unable to secure the remaining $235,000 "cash or property" obligation. Accordingly, Defendant has moved for review of the order of release and now proposes the following alternatives: 1) reduce the financial conditions to the $465,000 property bond and $300,000 personal surety presently available; or 2) permit the remaining cash or property portion of the bond to be satisfied by placing 10% of the amount in the registry of the Court; or 3) permit the remaining cash or property portion of the bond to be satisfied by the purchase of a "bail bond" secured by a corporate surety. Defendant asserts that because he does not have access to the remaining $235,000 in cash, a strict $700,000 cash or property requirement will effectively impose "a financial condition that results in the pretrial detention" of the Defendant, in violation of 18 U.S.C. § 3142(c)(2).
In reply, the Government argues that the $1,000,000 cash or property bond is necessary to assure the appearance of the Defendant. In response to the Defendant's offer to provide the $235,000 balance in the form of a commercial surety, the Government offers its own counter proposal, agreeing to accept the $1,000,000 bond in the form of a $465,000 property bond and a $535,000 commercial surety, without a personal surety component.
Citing United States v. McConnell, 842 F.2d 105, 108 (5th Cir. 1988), the Government maintains that "where a judicial officer has made a finding that a substantial bond is an essential element . . . necessary to reasonably assure a person's appearance at trial, neither the Constitution, nor the Bail Reform Act are violated simply because of the defendant's financial inability to., meet the bond." See United States' Response to Defendant Sudeen's Motion for Review of Magistrate's Release Order and for Expedited Hearing, at 9-10. The Government also offers detailed evidence in support of its argument that the Defendant poses a serious flight risk. According to the Government, the Defendant has motive and means to flee, substantial overseas contacts, a history of frequent international travel, owns, businesses in foreign countries including Guyana and the Cayman Islands, has multiple passports, at least one false passport, and several overseas bank accounts. The Government specifically opposes accepting personal sureties from Defendant's family members in lieu of cash or property, arguing that much of the Defendant's daughters net worth is comprised of "illiquid assets of questionable value." See id. at 12-15.
II. LAW AND ANALYSIS
A district court reviews a pretrial detention order de novo, and makes an independent determination of the pretrial detention or the proper conditions for release. See United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985). 18 U.S.C. § 3145(a) provides that "the motion shall be determined promptly." This review does not mandate a new evidentiary hearing, and the Court may rely on the evidence introduced before the Magistrate Judge. See United States v. Kyle, 49 F. Supp.2d 526, 527 (W.D.Tex. 1999).
The Bail Reform Act of 1984, 18 U.S.C. § 3142, governs the release or detention of a criminal defendant pending trial. Under 18 U.S.C. § 3142(c), if a judicial officer determines that release on personal recognizance or on unsecured appearance bond "will not reasonably assure the appearance of the person" or "will endanger the safety of any other person," pretrial release may be subject to the least restrictive of one or a combination of conditions. One such condition is the execution of "an agreement to forfeit upon failure to appear as required, property of a sufficient unencumbered value, including money, as is reasonably necessary to assure the appearance of the person." See 18 U.S.C. § 3142(c)(1)(B)(xi). Another available condition is the execution of"a bail bond with solvent sureties" who will agree to forfeit an "amount as is reasonably necessary to assure appearance of the person as required." See 18 U.S.C. § 3142(c)(1)(B)(xii).
The Bail Reform Act directs courts to consider several factors in determining whether there are conditions of release that will reasonably assure the presence of the defendant and the safety of other persons and the community. See 18 U.S.C. § 3142(g). These four factors include:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug;
(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 . . .
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release.
In this case, the Government asserts that consideration of these factors favors a $1,000,000 cash or property bond as a condition of the Defendant's pretrial release, but will accept a corporate surety or "bail bond" for a portion of this amount. The Government does not argue that the Defendant poses a danger to any individual or to the community, but seeks considerable financial conditions to assure the Defendant's presence at trial. The Government focuses largely on the "history and characteristics of the Defendant," in particular, the Defendant's character, financial resources, community ties, and past conduct. In support of the proposed financial condition, the Government maintains that the Defendant has "substantial motive and means to flee," including avoidance of a potential 280-year sentence and fines of more than $42 million, "strong overseas contacts" including relatives living abroad, ownership of businesses in Guyana and the Cayman Islands, multiple passports and evidence of a false passport, many overseas bank accounts and a substantial past history of complex international financial transactions.
The Government also submits that the Defendant's "character is weak." See United States Response, at 7. In support of this allegation, the Government cites his recent failure to disclose a $16 million judgment to Pretrial Services and documents which purportedly reveal possession of $500,000,000 in a Grenada bank and $382,000,000 in gold and diamonds. See id. The Government characterizes the Defendant's ties to the community as "tenuous," again citing the Defendant's motive to flee, as well as the assets the Defendant allegedly purchased with the proceeds of a fraudulent scheme. See id. at 8.
In response, the Defendant emphasizes that he is contesting the structure, rather than the amount, of the financial conditions imposed, which he claims "are dbjectively unreasonable and are impermissibly resulting in his pretrial detention." See Motion for Review of Magistrate's Release Order, at 5. The Defendant maintains that given his "history and ties to this community, there is scant basis for a finding that [he] is a flight risk." See id. The Defendant emphasizes that he has known of the pending indictment for over one year, yet has traveled abroad and returned the United States on several occasions. The Defendant also notes that he has been a United States citizen since 1980 and has no prior criminal record. According to the Defendant, "placing his children's total financial welfare at risk is adequate to assure his continued appearance" and the effect of the present financial condition is "to impose a financial condition that results in the pretrial detention of the person" in violation of 18 U.S.C. § 3142(c)(2).
The Court agrees with the Magistrate Judge's imposition of a $1,000, 000 bond as a condition of pretrial release and affirms all other conditions of pretrial release. The Court finds that the Government has presented compelling evidence to suggest that the Defendant poses a risk of flight. Thus, to the extent that the Defendant's motion seeks to reduce the total amount of the bond it is DENIED.
However, the restructuring of the bond is another issue. The Government expresses a willingness to accept a corporate surety for a portion of the bond, but wants that portion to include both the $300,000 personal surety the Defendant's children are presently prepared to provide and the remaining $235,000, for a total of $535,000. Thus, it is not the presence of a corporate surety component which is objectionable to the Government, but the amount. This is a distinction without a difference, since the total amount of the pretrial release bond remains the same, namely, $1,000,000. Furthermore, increasing the corporate surety portion of the bond would decrease the personal responsibility of the Defendant's children, and would be less likely to insure the Defendant's appearance.
III. CONCLUSION
After careful consideration of all of these factors, the Court finds that it is reasonable to allow the outstanding $235,060 portion of the $1,000,000 bond to be satisfied by a corporate surety. Accordingly, Defendant's motion is DENIED IN PART AND GRANTED IN PART. The Court adopts and imposes all other conditions of pretrial release previously ordered by United States Magistrate Judge Louis Moore, and IT IS SO ORDERED.