Aрpellant Onuoha Nwokoro appeals the decision of the district court to detain him prior to trial. He seeks reversal so that he will be immediately released on his personal recognizance. Consistent with the requirements of the Bail Reform Act, 18 U.S.C. § 3142, we conclude that a limited remand, not reversal, is necessary.
The Bail Reform Act requires that a pretrial detention order “includе written findings of fact and a written statement of the reasons for the detention.” 18 U.S.C. § 3142(i)(l). There is no such order here. In
United States v. Peralta,
At the pretrial detention hearing, the district court stated, upon hearing testimony from an Internal Revenue Service agent and the arguments of the parties’ counsel, that:
The Court has heard more than enough evidence ... to conclude [that appellant] has substantial assets in Nigeria. The court has heard more than enough evidence to be convinced that he could take neсessary steps at any time to get portions of those assets to help him facilitate his leaving this country.
May 10, 2011 Tr. 37:3-8. The district court also stated that:
[Appellant] has moved to Africa. He has moved hundreds — well based on the representations I have heard from the Government and the documents I have seen here, I have wire transfers totaling over $280,000 and an Agent testified to ... a million dollars in receipts in a two-year period [referring to appellant’s tax preparation services’ gross receipts in 2005 through 2007].
Id.
37:15-20. The district court further noted that appellant at the time of his
The Court finds that the Defendant is indeed a substantial flight risk. The Court finds ... that there is no combination of conditions that could possibly protect this Court’s interest in having him appear here before this Court.... The Court finds that he is a flight risk and that he should be detained pending the outcome of this case.
Id. 38:9-17.
The question presented by the transcript is whether the recorded findings, even if not in the form required by the Bail Reform Act, are sufficient to support the conclusion that appellant’s pretrial detention is necessary in order to assure his presence at trial. In
Simpkins,
The likelihood of conviction is very high and given the severe mandatory sentеnce [the defendant] faces, I believe the potential to flee, rather than to stand trial, is probable and therefore also conclude that the pretrial detention of the defеndant is required in order to assure the safety of the community as well as to preclude the risk of flight to avoid prosecution for these charges..
Whether appellant is a “serious” flight risk, 18 U.S.C. § 3142(f)(2), is not readily apparent from the district court record. Other than noting that aрpellant “has moved to Africa,” May 10, 2011 Tr. 37:14, and that appellant had transferred substantial assets to Nigeria and he could possibly take steps to retrieve those assets, id. 37:3-8, 14, the district court made nо factual findings. Neither did the district court demonstrate that it considered many of the facts apparent from the record before it.
For example, the district court did not mention any of the faсts favoring appellant’s pretrial release. When given the opportunity to flee the area, appellant has not. He does not presently have assets under his control in the United Stаtes (his bank account in the United States has been frozen), and he does not have possession of his U.S. or Nigerian passports (which are in government custody)
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with which to leave this country, much less to еnter Nigeria. He has never failed to appear in court when notified, and he has never failed to check in with the Pretrial Services Agency as he was previously required to do on a weekly basis. Indeed, after the magistrate judge dismissed the initial criminal complaint against him, appellant made no apparent attempt to flee prior to his arrest on a new indictment five days later. Appellant was released on his own recognizance two days later and again made no apparent attempt to flee between then and the detention hearing four weеks
The district court similarly failed to explain what weight (if any) it accorded facts favoring pretrial detention. It is apparent from the district court record that appellant currently has negligible ties to the District of Columbia area community: he has no job other than his work at the homeless shelter and occasional day labor jobs. Although appellant is a naturalized U.S. citizen — he came to the United States in 1982, obtained a college degree from a U.S. college, married, hаd four children, and lived and worked in the Washington, D.C. area for more than twenty years, establishing a tax preparation business at one time, and his wife and children continue to live in the area — he now hаs no home here other than the homeless shelter. Neither does he apparently have any family or friends who have indicated an interest in posting bond for him or allowing him to live with them in this area. And thеre is evidence that appellant has substantial connections to Nigeria, by virtue of birth and the transfer of funds over the course of three years, ending in 2007. Neither did the district court mention the strength or weakness of the government’s evidence that appellant allegedly aided and assisted in the preparation of false tax returns. Nor did the district court credit or reject the government’s argument that the sophisticated nature of appellant’s alleged crimes made him less likely to return for trial to face the charges against him.
At this point the district court’s reasoning is terse and conclusory, and its factual findings regarding appellant’s resources in Nigeria, his ability to retrieve those resources, and his ability to leave the United States appear in part to be without foundation in the record. Moreover, unlike the non-U.S. citizen defendant in
United States v. Xulam,
Together these circumstances indicate that the district court failed to make the required assessment with respect to release or detеntion, and to adequately memorialize its determination in the form of written or oral on-the-record “findings of fact and a [ ] statement of the reasons for the detention,” 18 U.S.C. § 3142(i )(1); supra note 1. Its factual finding and reasoning are insufficient to demonstrate that it considered all information available concerning the statutory factors and made a reasoned decision that appellant constituted a “serious risk” of flight, 18 U.S.C. § 3142(f), and that no “condition or combination of conditions” could “reasonably assure” it that he would appear for trial, id. Consequently, this court is not apprised of why the district court concluded on the record before it that thе government had met its burden that appellant presented a “serious” risk that he would flee prior to trial, id. § 3142(f)(2)(A), or its burden of proving that no condition or combination of conditions could reasonably assure the appearance of appellant at trial, id. § 3142(e)(1).
Because the district court has failed to conform to the requirements of the Bail Reform Act, 18 U.S.C. § 3142(g),
(i)(l),
we must remand the case for the district court
Notes
. Rule 9(a) was subsequently amended, in accord with our decision in Peralta, to provide that thе district court must “state in writing, or orally on the record,” the reasons for releasing or detaining a defendant in a criminal case. Fed. R.App. P. 9(a).
. The government seized appellant's Nigerian pаssport, which was on his person at the time of his arrest. Appellant voluntarily sent his U.S. passport to the U.S. State Department for renewal prior to his arrest. The govern-merit has since confirmed that appellant’s U.S. passport is in its custody and that a criminal hold has been placed on reissuance of the passport.