897 F.3d 340
D.C. Cir.2018Background
- Paul Manafort was indicted in D.D.C. (Oct. 2017) and released on conditions including a prohibition on committing any crime while on release and a separate D.D.C. gag order limiting public statements.
- A separate EDVA superseding indictment (Feb. 2018) produced a pretrial release order requiring Manafort to avoid contact with any victim or witness in that EDVA prosecution.
- The Special Counsel filed a motion (June 4, 2018) seeking revocation of Manafort’s D.D.C. release under 18 U.S.C. § 3148, alleging Manafort attempted to tamper with witnesses (18 U.S.C. § 1512(b)(1)) via communications with two PR intermediaries (D1, D2) and through an associate later identified as Kilimnik.
- The district court found probable cause (based on the grand jury superseding indictment) that Manafort committed a crime while on release, invoked the rebuttable presumption against release, and concluded (under § 3148(b)(2)) that (A) no conditions would assure community safety and (B) Manafort was unlikely to abide by any conditions.
- The district court ordered detention; Manafort appealed. The D.C. Circuit affirmed, resting on the finding that Manafort was unlikely to abide by conditions (§ 3148(b)(2)(B)).
Issues
| Issue | Plaintiff's Argument (U.S./Government) | Defendant's Argument (Manafort) | Held |
|---|---|---|---|
| Whether probable cause that Manafort committed a crime while on release supports revocation under 18 U.S.C. § 3148(b)(1)(A) | Grand jury indictment and evidence of communications with D1/D2 establish probable cause of witness tampering | Manafort did not act corruptly; communications reflect defense/innocence and did not show intent to suborn perjury | Probable cause finding uncontested and accepted by court; district court relied on it |
| Whether any combination of conditions could assure community safety under § 3148(b)(2)(A) | Witness-tampering charges and alleged prior evasive conduct pose threat to administration of justice; detention necessary | Conditions (e.g., targeted no-contact list) could address risk; D.C. release orders did not bar all communications | Court did not reach this issue as dispositive; upheld detention on separate ground but discussed risk to integrity of proceedings as persuasive |
| Whether Manafort is unlikely to abide by any conditions under § 3148(b)(2)(B) | Course of conduct (gag-order editing, repeated contacts with witnesses directly and via intermediary) shows unwillingness to follow court directives | Evidence thin; ambiguity in EDVA stay-away order; government forfeited arguing EDVA violation; Manafort unaware who would be witnesses | D.C. Circuit affirmed; no clear error in district court’s finding that Manafort is unlikely to abide by any conditions; sufficient to sustain detention |
| Whether the district court erred in treating violation of the EDVA stay-away order as a basis for detention | EDVA order’s no-contact language can be read broadly to cover witnesses; violation relevant to credibility/compliance | EDVA order ambiguous as to covering witnesses in separate D.D.C. case; government did not raise violation below; construing ambiguity against government | Court found district court erred to the extent it relied on an EDVA violation, but that error was harmless given the totality of conduct; detention affirmed |
Key Cases Cited
- Gentile v. State Bar of Nev., 501 U.S. 1030 (discussion of substantial likelihood of materially prejudicial publicity)
- Armstrong v. Exec. Office of the President, Office of Admin., 1 F.3d 1274 (ambiguity in orders undermines contempt enforcement)
- Barhoumi v. Obama, 609 F.3d 416 (reviewing factual findings as whole under clear-error standard)
- Awad v. Obama, 608 F.3d 1 (same)
- United States v. U.S. Gypsum Co., 333 U.S. 364 (standard for reviewing agency/factfinding error)
- United States v. Simpkins, 826 F.2d 94 (detention standard; communal safety review)
- United States v. Smith, 79 F.3d 1208 (treatment of dangerousness as factual finding)
- United States v. Nwokoro, 651 F.3d 108 (need for adequate district-court explanation)
- United States v. English, 629 F.3d 311 (circuit approaches to review of detention findings)
- United States v. Clark, 865 F.2d 1433 (clear-error treatment of detention facts)
- United States v. Gotti, 794 F.2d 773 (detention factual-review precedent)
- United States v. O’Brien, 895 F.2d 810 (independent review approach)
- United States v. Portes, 786 F.2d 758 (review framework for detention)
- United States v. Howard, 793 F.3d 1113 (treatment of ultimate detention question)
- United States v. Hir, 517 F.3d 1081 (mixed question approach to detention)
- United States v. Stone, 608 F.3d 939 (review of ultimate detention conclusion)