United States District Court, N.D. California
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 ...