United States v. Chen

          ORDER RE MOTION TO REVOKE ORDER REMOVING LOCATION MONITORING DKT. NO. 40

          EDWARD J. DAVILA, UNITED STATES DISTRICT JUDGE

         On January 23, 2019, the Defendant made an initial appearance before Magistrate Judge Virginia DeMarchi on a complaint charging him with a violation of 18 U.S.C. § 1832(a)(2), Theft of Trade Secrets. Dkt. No. 4. A detention hearing was held on January 24, 2019. Dkt. No. 5. On January 25, 2019, the Defendant was ordered released from custody on a $500,000 bond secured by $400,000 in real property and $100,000 in cash. Dkt. Nos. 6, 7. Other conditions of release included pretrial supervision, a travel restriction to the Northern District of California, surrender of Defendant’s passport and GPS monitoring to ensure compliance with location restrictions and a curfew. On February 7, 2019, Defendant was arraigned and entered a plea of not guilty. Dkt. No. 16.

         On October 2, 2019, Pretrial Services submitted a request to remove the GPS location monitoring condition and Magistrate Judge DeMarchi set a bail review hearing for October 15, 2019. Dkt. No. 34. On October 15, after hearing from all parties, Magistrate Judge DeMarchi issued a ruling granting Pretrial Services’ request and ordered the removal of Defendant’s GPS location monitoring condition over the Governments objection. Dkt. No. 35. Judge DeMarchi granted a 24-hour stay to allow the Government to seek district court review of the Order. This court granted a stay of Judge DeMarchi’s Order, set a briefing schedule for the parties and set a hearing date of December 9, 2019. Dkt. No. 39. Subsequently, on October 29, 2019, the Government filed a Motion for Revocation of Order Removing Location Monitoring as a Condition of Release. Dkt. No. 40. Defendant filed his Opposition on November 11, 2019. Dkt. No. 41. The Court then held a hearing on the Government’s Motion for Revocation on December 9, 2019. Dkt. No. 43.

         The Government requests revocation of Judge DeMarchi’s pretrial release order (Dkt. No. 7), arguing that Defendant is a serious flight risk. The Government has no objection to the removal of the curfew condition. For the reasons stated below and on the record at the hearing on December 9, 2019, the Court finds (1) the Government has not shown by a preponderance of the evidence that the Defendant is a serious flight risk and (2) Magistrate Judge DeMarchi’s order removing the GPS monitoring condition for pretrial release was therefore proper. Accordingly, the Government’s Motion is DENIED.

         I. BACKGROUND

         Defendant was indicted in January 2019, with a single count of Theft of Trade Secrets 18 U.S.C. § 1832(a)(2). The general allegations are that he was previously employed as an engineer with Apple beginning in June of 2018. He was an engineer on one of Apple’s propriety projects. By December 2018, he was on a performance improvement plan (PIP) and had been placed under increased supervision because of poor performance. He was observed taking photographs in a secured workspace in violation of company policy and Apple began an internal investigation. Dkt. No. 40.

         Apple’s investigation revealed that the Defendant had over two thousand files containing Apple proprietary and confidential material including photographs of secure databases. Id. On January 11, 2019, Apple discovered that Defendant had applied to a competitor of Apple based in China. Apple suspended Defendant and revoked his access to Apple properties and network. Seven days after he was suspended, Defendant booked a roundtrip flight from SFO to Shanghai, China. Defendant notified Apple of his intent to travel to China and Apple asked him to delay his travel, which he agreed to do. The complaint in this case was signed by Judge DeMarchi on January 22, 2019. Dkt. No. 1. Defendant was arrested on January 23, 2019, as he was preparing to leave San Jose for SFO airport. Id. During an FBI interview Defendant admitted that he deleted substantial amounts of photographs forwarded from his work email account to his personal email account in an “emotional moment” after being confronted by Apple regarding his behavior. Id.

         II. LEGAL STANDARD

         This Court reviews de novo a magistrate judge’s order regarding pretrial detention. United States v. Koenig, 912 F.2d 1190, 1192 (9th Cir. 1990) (“There are ample reasons, then, for concluding that the district court’s review of a magistrate’s detention order is to be conducted without deference to the magistrate’s factual findings.”)

         Pursuant to the Bail Reform Act of 1984, 18 U.S.C. §§ 3141, et seq., persons facing trial are to be released under the least restrictive condition or combination of conditions that will “reasonably assure” the appearance of the person as required and the safety of the community. See 18 U.S.C. § 3142(c)(2); United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991); United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985). “Only in rare circumstances should release pending trial be denied, and doubts regarding the propriety of release should be resolved in the defendant’s favor.” Gebro, 948 F.2d at 1121 (citing Motamedi, 767 F.2d at 1405). On a motion for pretrial detention, the Government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk, and by clear and convincing evidence that the defendant poses a danger to the community. Gebro, 948 F.2d at 1121; Motamedi, 767 F.2d at 1406–07.

         Section 3142(g) of the Bail Reform Act contains the following factors to evaluate whether there are any conditions of release that will “reasonably assure” a defendant’s future appearances and the safety of the community. 18 U.S.C. § 3142(g). These factors include: (1) the nature and circumstances of the offense charged; (2) the weight of the evidence against the defendant; (3) the history and characteristics of the person including: (A) the defendant’s character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and (4) the nature and seriousness of the danger to any person or the community that would be posed by the defendant’s release. United States v. Winsor, 785 F.2d 755, 757 (9th Cir. 1986); Motamedi, 767 F.2d at 1407. “Of these factors, the weight of the evidence is the least important, and the statute neither requires nor permits a pretrial determination of guilt.” Gebro, 948 F.2d at 1121 (citing Winsor, 785 F.2d at 757); see also Motamedi, 767 F.2d at 1408. Evidence of guilt is relevant only in terms of the likelihood that the defendant will fail to appear or will pose a danger to the community. Winsor, 785 F.2d at 757. After a 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.S.C. § 3142(f).

         III. DISCUSSION

         In its Motion and at the hearing on December 2, 2019 (“the Hearing”), the Government argued that Judge DeMarchi’s order for pretrial release of Defendant should be revoked solely on “flight risk” grounds and did not argue that Defendant poses a danger to the community. The ...