United States v. Quan Howard

This is an appeal from the district court’s revocation of appellant’s pretrial release order. We have jurisdiction pursuant to 18 U.S.C. § 3145 (c) and 28 U.S.C. § 1291 .

We review the district court’s factual findings concerning the danger that appellant poses to the community under a “ ‘deferential, clearly erroneous standard.’ ” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir.2008) (quoting United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The conclusions based on such factual findings, however, present a mixed question of fact and law. Hir, 517 F.3d at 1086 . Thus, “the question of whether the district court’s factual determinations justify the pretrial detention order is reviewed de novo.” Id. at 1086-87 (citations omitted).

The district court may enter an order of revocation and detention if, after a hearing, the court: (1) finds that there is either “probable cause to believe that the person has committed a Federal, State, or local crime while on release” or “clear and convincing evidence that the person has violated any other condition of release”; and (2) finds that “based on the factors set forth in [ 18 U.S.C. § 3142 (g)], there is no condition or…

concurring:

I join my colleagues in remanding for further findings. But, I’m troubled by the condition of release that defendant has been found to have violated. As a condition for staying out of jail pending trial, defendant was ordered to “have no contact with any employee of the USPS except his supervisors,” and the order was later expanded to prevent him from “mak[ing] contact with any postal service employees, former or current.” Defendant’s counsel unwisely consented to these conditions, but they strike me as unjustified and probably unconstitutional.

According to our law, there are only two considerations the district court may take into account in determining whether to release a defendant, and what condition to impose on such release: (a) ensure that he is not a flight risk; and (b) ensure that he is not a danger to the community. 18 U.S.C. § 3142 (c)(1). Preventing the defendant from talking to individuals who are potential witnesses at trial falls into neither of these categories. It certainly does not show a propensity to flee nor, of itself, is it evidence of being a danger to the community. Merely talking to a potential witness, even about the subject of his likely…

FILED

FOR PUBLICATION JUL 17 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10259

Plaintiff - Appellee, D.C. No. 5:14-cr-00390-LHK-1 (PSG) v. Northern District of California, San Jose

QUAN PHAM HOWARD,

Defendant - Appellant. ORDER

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted to Motions Panel July 17, 2015

Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.

PER CURIAM:

This is an appeal from the district court’s revocation of appellant’s pretrial

release order. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C.

§ 1291.

We review the district court’s factual findings concerning the danger that

appellant poses to the community under a “‘deferential, clearly erroneous standard.’” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting

United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The conclusions

based…