*1 TATEL, Circuit Judges. UNITED of America STATES ORDER Barry PER CURIAM. Kani XULAM Steven Citron A/K/A Citron, Appellant. Sereno A/K/A Upon consideration of motion pending appeal release of a de- No. 96-3055. order, thereto, tention opposition and the reply, United States Court of it is
District of Columbia Circuit. ORDERED that the District Court’s de- order be revoked for the tention reasons stated in the accompanying memorаndum.
The Clerk is directed to issue forthwith to the District copy Court certified of this order in lieu of a formal mandate. WALD, GINSBURG, Before: TATEL, Judges. Circuit Opinion for the Court filed PER CURIAM.
Dissenting opinion filed Judge GINSBURG.
PER CURIAM: appeal This from an order of detention trial under 18 U.S.C. 3142 raises troubling quantum issues as to the of evi- necessary dence prior to detain an individual to trial on the “no condition or combination of will as- presencе sure” the at future appellant, This a Kurd from has been an international hu- man worker District resident years Columbia for over three and a well- known and admired member of the national rights community. human He has crimi- but charged has mak- ing a false passport applica- statement in a short, 1988. In arriving after here visa, from temporary Canada on a student applied for рass- and obtained an American port convicted, under a false If name. likely faces a maximum sentence of six sentencing guide- months under the federal Immigration lines. The and Naturalization (“INS”) Service has served notice that it is undertaking investigation may re- appellant’s possible sult in deportation and a detainer to take effect * Judge Ginsburg would the motion for the reasons stated in his dissent. deny
442 nature; evi- weight the of the nonviolent judge and the dis- magistrate The release.1 dence; of the history and characteristics the government, court, motion on trict character, ties, including his person, the his detention ordered in the com- length of residence employment, solely as a of California District Central conduct, ties, past crimi- munity, danger to posed no risk, conceding he flight appearances; history, of court and record At the any its citizens. community or the poses to the danger the the hearing has time, pretrial a present community if released. the California before scheduled been in the every category mentioned requires release Act Bail Reform The statute, primе candidate appellant this was judicial trial unless a prior to aof defendant charge carried His nonviolent for release. conditions or com that no determines officer imprisonment under maximum six months will “rea exist which of conditions bination he had no criminal sentencing guidelines; per the sonably appearance the assure was (1994). appear; to he 3142(c) or record failure record § Under the 18 U.S.C. son.” circle of employed and a wide had seeks de Act, government when the com close friends the acquaintances and ground that he the of an individual on tention “spiritual” and munity as to his who testified flight, standard it must the poses a risk of government integrity; and the “intellectual” of the evidence.” satisfy “preponderаnce ais to the acknowledged posed no threat that he F.2d 96 Simpkins, 826 States United Indeed, admit must, community. the district court (D.C.Cir.1987). preponderance That facing only the criminal if he were no ted that course, issue: that go to the ultimate appearing] might be charge, [of those “chances conditions —either set combination Nonetheless, dis any good.” Act itself or Bаil Reform out pend judge refused to release him judge might trict court magistrate or that others him, “reasonably” ing trial. What militated assure that the useful —can find view, government wit judge’s that the was appear for trial. U.S.C. will might facing depor be 3142(c). ness testified that Act out a number of § sets as a Kurd he ap to where may to ensure tation be used which conditions that alia, court also believed remaining persecuted. including, inter pearance, ... go any other ends to address agrees to “he will to designated person who custody of a especially rights], any [of cause Kurdish report [the] to viola supervision and assume condition; possibility there’s a maintaining he now realizes em when of a release reason, deported.” For that plаce could be abiding ployment; restrictions way be “no judge concluded that there would travel; regular on a reporting basis or abode up can lock agency; third-party custodian] him [a designated law enforcement to a leaving.” Obviously him from curfew; executing or restrain a bail complying with a troubled, magistrate to he added that bond; final condition and a catch-all appellant presented after trans judge “reason whom magistrate or deems “may very well decide portation California ably necessary” appearance. 18 to assure 3142(c). disagree this court has with the decision 3142(g) of the § Section Act U.S.C. my “nothing in decision should made” and considered out the factors sets magistrate] suggest deciding [the Califоrnia judge whether magistrate or jurisdiction fully ... not have he does will available then of bond.” It consider the issue was appearance: the nature and defendant’s alleged offense, clearly the crime —the particularly its circumstances about representations to make to the Court appellant released in the In the event that order, to takе may request the INS intends whether of this wake custody. a detainer agency holding appellant The fact justice criminal now necessarily will period does not mean of the alien for hours, "maintain custody by INS if permit be taken into forty-eight order to as- exceed sumption Supplemental Appellee’s Court.” Memoran- custody by the Service." C.F.R. Opposition Appellant’s Motion for Re- 242.2(a)(4). dum in supplemental In a memorandum Pending Appeal, 4at n. 1. lease that it states "has to this identity Second, passport, false he claimed to obtain a any or all of the conditions listed presumed case, he is above were innocent —and the available in this but there is nó indication in Turkey magis of his record that the possibility trate or the judge’s judge fully district court decision. fueled *3 explored the by commitments offered appel why There are several we do not reasons lant’s or appellant’s proffer witnesses provided legiti those factors believe alone willing that he was to abide whatever ordering pretrial for mate detention. imposed. conditions the court United Cf. First, govern we are not convinced that the Jackson, v. States 845 F.2d 1265-66 showing ment satisfied its burden a risk of (5th Cir.1988) (pretrial detention order va Friedman, flight. United States Cf. cated for failure adequately to consider stat (2d Cir.1988) 48, 49-50 (vacating pre F.2d utory factors relevant to determination detention on grounds govern that whether conditions are sufficient to assure flight; ment had not established risk of al court). appearance appellant’s One of wit though charges sending receiving for and nesses, Krommer, Sister Patricia testified serious, pornography child were chance of “absolutely” that she would willing flight prior was reduced crimi absence appellant’s ensure return court. When ability lack of known asked, then “And what kinds of assistance employment, ties); and and you regard?”, could offer she an Hinder, States v. 797 F.2d 161— United “Well, all, swered: first of I keep would (3d Cir.1986) (reversing pretrial detention daily. contact with him I provide would order because did not show transportation. risk If appear he needed to evidence; flight by preponderance court, even bring I would him in. I would be though clearly capable happy defendant was of ob to monitor his day.” whеreabouts each identification, taining witness, false as Kathryn Porter, demonstrated A second Cameron by prior involving conviction for president crime fraud an international human (the identification, family organization Alliance) past ulent ties and Rights rec Human appearing required ord of in court as and wife of an eight-term Republican dimin risk). Congressman, flight Porter, John Appellant’s ished defendant’s Edward and strong advocating Congressional commitment to founder co-chair of the his Kurd Caucus, States, Rights Human cause in offered a ish the United cited room in her home, stating that definitely she “most enhancing flight, district court as his risk of willing appellant’s would” to ensure against, seem to re would militate not in favor of, to court turn and that flight, only way she “would have no pursue since the can hesitancy responsible custodian, to be or or publicly, that cause is within the human legal whatever —whatever correct term rights community, disappearing and or flee I hesitancy.” is. would have no Joseph ing permanently impotent would render him Eldridge, Lawyers’ director of the Commit that respect. regarded How would he be Rights, for tee Human ap also testified on instance, community, in that if he violated pellant’s behalf. custodians, trust of his third-party or bonds or pledged forfeited assets his Yet, magistrate judge concluded that level, practical release? On a more gov testimony any '“[t]heir was devoid of facts away passports ernment taken all his and from which [the could find that court] [the documents, it unlikely go travel so is he could any monitoring [ap- witnesses] have means of addition, if far even he wished to. as pellant’s] Perhaps signif- whereabouts. most above, explained has itself ad icantly, nothing in the witnesses’ regarding appellant’s dressed concerns suggests that defendant would be amenable flight by risk lodging detainer supervision by any of them.” The district appellant, permits his retention for 48 finding, noting court reiterated that “it released, hours after he is leave, otherwise ordered clear if chose to accused point, agency may at that opt to take Porter and [Ms. Krommer] Sister pending deportation However, stop him.” attorney 242.2(c). 8 C.F.R. proffered, accepted and the district court lifestyle trial, fact that his entire despite thе “completely will- accurate, appellant was stay in strongly suggest he will of release and mission the conditions with ing comply indeed, nun, (if, Pat charged misdeed place, Sister with work Porter, falsify whoever or information Krommer, Kathryn guilty) was to or is found comply require coun- would in order to remain passport the court else to return release and provisions try.2 the conditions fleeing.” In intentions of He has no of 1984were not intended Reform Act Bail reputa- their harm to immense view appellant. apply to such Ms. Porter Krommer and tions Sister several court referred flee and were to if suffer would were notion that times to the *4 comply he would with proffer appellant’s stop him. supervisors him, upon imposed of release any conditions coursé, every That, is true of defendant of by prepon- prove a failed government conditions; it is also not released condition or that “no of the evidence derance determining for authorized law standard “reasonably of conditions” would combination appropriate. is pretrial detention whether in 18 appearance assure” that will speaks of conditions Section 3142 3142(e). § U.S.C. guaran- “reasonably” appearance, not H.Rep. 1030, outstanding deporta- Cong., is no No. 98th Finally, there it. See also tee Moreover, appellant. (1984), against reprinted this in 1984 15 2d Sess. 3142(d) for a specific provision 3182, (acknowledging has a fea- section 3198 U.S.C.CA.N. a defendant who ten-day temporary hold on is a evеn “where there sibility citizen, gov- during which time the a flight”). not here The record substantial risk attorney notify appropriate is to ernment enough satisfy the than contains more against the they may act so that officials test, enough assurance “reasonable” 18 U.S.C. if choose. preponderance of the evidence a to show 3142(d)(1)(B). time, “[i]f After that § will assure that no of conditions combination person or declines to fails take official appearance. the defendant’s ..., person be treated shall Thus, normally despite large discretion provisions of the other with accordance area, trial court in this we accorded the [3142],notwithstanding appli- this section order of detention.3 revoke the cability provisiоns of law....” of other 3142(d)(2). § When U.S.C. GINSBURG, Judge, dissenting: temporary did not move here 3142(d), legiti- it does not seem section under charged making stands specter of a now introduce the mate for it to application in passport a a false statement on through door deportation the back possible According § 1542. violation of U.S.C. principal reason detention. as a Agent De- Special of a Service, Security in 1986 partment of State a conclude serious cannot but We procured passport a of- made here. A first-time has been error Barry person, Steven name of a deceased a nonviolent crime with accused of fender upon a court docu- based Citron. mem- strong ties name, change he was attеsting to a ment supervise community willing to of that bers time in the name passport, a new issued court finds manner the his release yet residences, In 1993 he obtained Citron. designated Sereno necessary, including in the name of in, this time curfews, pending passport, another reporting is incarcerated a government has advised us that changes for the subsequently as to sel made twо 2. name He Wednesday, passport hearing authorities—the is scheduled for he notified appellation being politically significant a one district last We therefore revoke the 1996. Gurion, comparable Ben to Malcolm X or David entirely than re- rather court's detention order adopted leaders mission-oriented names proceedings, another mаnding for since further cultures. other for the District of hearing the District Court simply the Cali- interfere with would Columbia currently being recognize We fornia Coun- Central District of California. held Xulam, again purported based a Kani court’s order of my detention. Do colleagues change During of name. a search of defen- something know that the district court does office, agents dаnt’s recovered Turkish They not? Yes: know that this “internation- passport photograph with a of defendant and rights human al worker” and advocate for card, security Canadian social both the Kurds of deported who name of Namet Gunduez. where, Turkey claims, he would be not, persecuted, would apparently Because the defendant is sub- trial, pursuit flee in personal safety and ject illegal alien —the opportunity continue his human investigation INS has instituted an work from eapitol, another because that a detainer him —and has a would do “immense reputation” [the] harm ability to obtain demonstrated false travel acquaintances of the two who vouchsafed his documents, sug- and other the Government appearancе. nothing This is more than a gested the risk he would flee is suffi- leap of faith part my on the colleagues. ciently high pend- that he should be detained trial, ing pursuant to 18 U.S.C. 3142. The The court devotes most opinion of its hearing held at which the claim that the district court could have made the best record he could *5 devised “some combination of conditions” cal- support proposition of the that he should be ibrated the defen- custody released the of certain would not faith, dant leap flee—another it willing citizens capacity. serve in that seems, for proposed the defendant no such granted court then the Government’s deten- conditions, combination of the district court request ground tion on the that “no condition exists, conсluded none Ap- and the Court of or combination of conditions” of release could peals itself upon is silent what that combina- reasonably assure that the defendant would event, tion be. having made appear required hearings. as for future argument, the court then revokes the As for the the two witnesses detention order unconditionally, thereby supervise relеase, offered to who defendant’s conferring upon the defendant more relief explained judge length the district at some justify than the court has tried to and indeed why he inadequate considered their offers to more than the requested. has defendant assure the appearance. defendant’s Basical- at defendant least proposed he be rе- having ly, first that the defendant concluded leased into custody of one of his two likely is the court found that “those acquaintances. By omission, the court has ... persons stop him.” rejected slight by even that concession expressed only the concerns not Moreover, Magistrate Judge who com- the Government but piled upon record which the district court district as wеll. acted —and who had also concluded that no condition or combination of conditions of re- explains The court decision to its “revoke adequate following lease would be —made district entirely court’s detention (1) findings persons of fact. Both of the who remanding rather than proceed- for further defendant, custody offered to assume ings” as an effоrt to interfering avoid the third opposi- witness who testified in proceedings now in California. Re- detention, tion to his acquaintance have “an leasing the defendant to the of his They [with him] which is superficial.” did sponsors, however, proposed, would not name, not know “his other names he has interfere with the proceedings California at used, where he is from and where his Morеover, apparent compla- all. the court’s immigration is....” Nor did know his cency ability about the Government’s to re- (2) “[N]othing status. testi- witnesses’ custody of tain the defendant California is mony suggests that defendant would be ame- First, hearing unwarranted. the California supervision by any nable to of them.” already once, stayed has and we have
Nonetheless, way knowing Court of completed; no it will be when knowledge could, firsthand of the defendant interim the he ar- witnesses, or of his revokes the gues, Second, the inclination expired.
detainer has depor- defendant’s pursue the
of the INS responsi- to our entirely irrelevant is
tation does
bility to assure deporta- possible contemplation
flee expressly de- Third, court the district
tion. mag- judgment of the California
ferred to the
istrate; to affirm the district if were we even therefore, would still the Government yet another obliged make its case or, necessary, to invoke whatever
forum permitted under arrangements are Immigra- provisions Act. Naturalization it them- my colleagues take
Why for the defen- advocates to become
selves zealously represented coun-
dant —who mystery to me. One own—is
sel of his clear, though: In
thing view within what court was well
the district large acknowledges is “the discretion
court in this
normally accorded
area.” *6 FORMAN, Appellee/Cross-
Eric W.
Appellant, CO., LTD., AIR LINES
KOREAN
Appellant/Cross-Appellee. 95-5230, 95-5231.
Nos. Court
United States Circuit.
District of Columbia 12,
Argued April 1996.
Decided Rehearing
Rehearing Suggestion for July 1996.* Bane Denied
En * Rehearing In Banc. participate the order on Judge Henderson did not