United States District Court, N.D. California, San Jose Division
ORDER DENYING UNITED STATES' APPLICATION FOR
REVIEW AND REVOCATION OF RELEASE ORDER [Re: ECF 92]
LAB SON FREEMAN United States District Judge
11, 2016, Magistrate Judge Nathanael Cousins ordered
Defendant Alfred Georgis (“Georgis”) released
pending trial with conditions including residence in a
halfway house. ECF 18. The parties agreed upon restrictions
to be placed on the bond. Id. Although the
Government opposed release, it did not appeal the 2016 order.
On May 2, 2017, over the Government's objection, Judge
Cousins modified conditions of pretrial release and ordered
Georgis to be released from the halfway house to a residence
in San Jose with electronic location monitoring. See
generally Hr'g Tr., ECF 66. That same day, the
United States filed an application to stay the release order,
which this Court granted through May 3, 2017. ECF 56, 58.
After a hearing on the application for a stay, the Court
declined to impose a further stay. ECF 62. On May 31, 2017,
Georgis was taken into Immigration and Customs Enforcement
(“ICE”) custody based on a 2006 removal order.
ECF 92. On June 9, 2017, the Government requested that the
Court revoke its prior release order, issue an arrest warrant
for Georgis to be remanded to United States Marshals Service
(“USMS”) custody, and order Georgis to be
detained pending trial. ECF 74. At a hearing on June 14,
2017, Judge Cousins denied the Government's request. ECF
Government now requests that this Court revoke Judge
Cousins' original release order from May 11, 2016 and
order that Georgis be detained pending trial. ECF 92. Though
the Government concedes that it did not immediately appeal
the original release order, it contends that it has
previously submitted facts regarding Georgis' risk of
flight and now presents new evidence, including his current
ICE custody and imminent removal. Id. The Government
argues that Georgis' imminent removal from the country
heightens his risk of flight. Id. In response,
Defendant states that under the Bail Reform Act of 1984, 18
U.C.S. § 3142, the Court cannot consider an ICE detainer
when determining whether to revoke pretrial release. ECF 93.
Court conducts a de novo review of the Magistrate
Judge's decision to detain Georgis. United States v.
Lopp, No. 4-15-cr-00373-YGR-1, 2015 WL 5139367, at *2
(N.D. Cal. Sept. 1, 2015) (citing United States v.
Koenig, 912 F.2d 1190, 1192-93 (9th Cir. 1990)).
“In general, the Bail Reform Act . . . requires that
‘a person facing trial' be released ‘under
the least restrictive condition or combination of conditions
that will reasonably assure the appearance of the person as
required.'” Id. (citing United States
v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985));
see generally 18 U.C.S. § 3142.
obtain an order of detention, the government must show that a
defendant poses a flight risk or a danger to the community .
. . .” Lopp, 2015 WL 5139367, at *2 (citing
Motamedi, 767 F.2d at 1405). “In order to meet
its burden, the government must show by a preponderance of
the evidence that the defendant is a flight risk or show by
clear and convincing evidence that he or she is a danger to
the community.” Id.
Ninth Circuit has held that “[t]he factors that a court
should consider in determining whether a particular defendant
should be released under pretrial supervision or confined
pending trial are set forth in 18 U.C.S. § 3142(g), and
immigration status is not listed as a factor.”
United States v. Santos-Flores, 794 F.3d 1088, 1090
(9th Cir. 2015) (citing 18 U.S.C. § 3142(e)(2)-(3), (f))
(finding that the district court erred in relying on the
existence of an ICE detainer and the probability of the
defendant's immigration detention and removal from the
United States to find that no condition or combination of
conditions would reasonably assure the defendant's
appearance pursuant to 18 U.C.S. § 3142(e)). In
Santos-Flores, the Ninth Circuit reasoned that
“the district court's decision to detain
Santos-Flores pending trial based on the possibility of his
detention or removal by immigration authorities . . . [was]
contrary to the express language of the Bail Reform
Act.” Id. at 1091. Moreover, the court noted
that “a number of district courts have persuasively
explained, the risk of nonappearance referenced in 18 U.S.C.
§ 3142 must involve an element of
volition.” Id. (emphasis added)
court determines whether a defendant should be detained or
released pretrial, the Bail Reform Act provides that the
decision may be reopened at any time before trial:
if the judicial officer finds that information exists that
was not known to the movant at the time of the hearing and
that has a material bearing on the issue whether there are
conditions of release that will reasonably assure the
appearance of such person as required and the safety of any
other person and the community.
18 U.C.S. § 3142(f).
hearings before this Court, the Government argued that
Georgis poses a heighted risk of flight based on his imminent
removal. The Government contends that if Georgis is released,
he would flee to avoid removal and prosecution. The
Government did not address Georgis' danger to the
community although in its brief, the Government continues to
argue that Georgis does pose a danger to the community. In
response, the Defendant noted that the only issue before the
Court is the Government's application for review and
revocation of Judge Cousins' release order. Defendant
argued that under the Bail Reform Act, the Court cannot
consider an ICE detainer in determining whether to revoke
pretrial release, and therefore the Government has not
presented any change in circumstances that would pose a
material bearing on the Court's decision.
hearing arguments on the matter, the Court concludes that it
is not proper to consider removal from the United States as a
factor affecting Georgis' risk of flight, and that the
Court must separate Georgis' detention by ICE from the
Government's request for pretrial detention. Augmenting
this decision is the fact that Georgis has a history of
compliance with his pretrial release conditions, despite two
minor technical violations that were immediately remedied.
And, although the Government makes much of the fact that
Georgis initially misled them with respect to his legal
status in the United States, Georgis has known that he was
subject to removal since 2006 and has continued to appear at
all court proceedings.
the Government stipulated that the conditions imposed by the
Court would reasonably assure the appearance of Georgis as
required on May 11, 2016, the Government must now show by a
preponderance of the evidence that circumstances have changed
in such a way that would heighten Georgis' flight risk.
Because the Court cannot consider Georgis' detention or
removal by immigration authorities under the Bail Reform Act,
and because the Government has not proved by a preponderance
of the ...