United States v. Stewart ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4537
TERRY W. STEWART,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-01-11)
Submitted: August 15, 2001
Decided: September 6, 2001
Before WILLIAMS, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Terry W. Stewart, Appellant Pro Se. B. Frederic Williams, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. STEWART
OPINION
PER CURIAM:
Terry W. Stewart appeals the district court’s denial of release pend-
ing trial. Stewart was indicted for participating in a fifty-six million
dollar Ponzi scheme. He was charged with multiple counts of conspir-
acy and mail and wire fraud, money laundering conspiracy, and multi-
ple money laundering transactions. It is alleged that Stewart provided
sham trusts to hide the involvement of the operators and investors in
the Ponzi scheme from governmental oversight, including the IRS.
Stewart also taught seminars on how participants can hide themselves
and their assets from disgruntled spouses or business partners.
A hearing was held before a magistrate judge in the Western Dis-
trict of North Carolina, on June 21, 2001. The magistrate judge
released Stewart on bond and electronic monitoring, imposing other
various conditions. Stewart was thereby released. On June 26, 2001,
the Government filed a motion for review of the magistrate judge’s
release order pursuant to 18 U.S.C. § 3145(a). A hearing was subse-
quently held on July 2, 2001. Stewart proceeded pro se at both hear-
ings. At the July hearing, the district court heard argument from both
parties, reviewed transcripts from other relevant hearings, and
received testimonial and documentary evidence. Based on its review,
the district court concluded that Stewart posed a substantial risk of
flight, and accordingly revoked Stewart’s release on bond. Stewart
now appeals the district court’s order entered to this effect.
On appeal, Stewart claims that the July 2, 2001, hearing held by the
district court did not comport with 18 U.S.C. § 3142, of the Bail
Reform Act. Specifically, Stewart asserts that the court ignored the
statutory criteria for bail pending trial and instead allowed the Gov-
ernment to conduct a mini-trial of his guilt based on speculation. He
further claims that the district court judge harbored a bias against him
because Stewart had a career in the military.
This appeal is governed by Fed. R. App. P. 9, which provides that
the district court must state in writing or orally on the record the rea-
sons for an order regarding a criminal defendant’s detention. Further-
more, the district court must make its decision regarding release in
UNITED STATES v. STEWART 3
accordance with the applicable provisions of 18 U.S.C. §§ 3142,
3143, and 3145(c). The court of appeals is instructed to promptly
determine the appeal on the basis of the papers, affidavits, and parts
of the record that the parties present or the court requires.
When the district court acts on a motion to revoke or amend a mag-
istrate judge’s pretrial detention order, the district court acts de novo
and must make an independent determination of the proper pretrial
detention or conditions of release. United States v. Rueben, 974 F.2d
580, 585-86 (5th Cir. 1992). On appeal, the question becomes
whether the evidence as a whole supports the conclusions of the pro-
ceedings below. United States v. Trosper, 809 F.2d 1107, 1111 (5th
Cir. 1987). The standard of review for pretrial detention orders under
18 U.S.C. § 3145(c) is one of independent review, with "deference to
the determination of the district court." United States v. O’Brien, 895
F.2d 810, 814 (1st Cir. 1990); see also United States v. Tortora, 922
F.2d 880, 882-83 (1st Cir. 1990) (noting that this standard cedes par-
ticular respect to the lower court’s factual determinations).
Section 18 U.S.C. § 3142(e) of the Bail Reform Act, which governs
release or detention pending trial, dictates that if, after holding a hear-
ing, the court finds that no "condition or combination of conditions
will reasonably assure the appearance of the person as required, and
the safety of any other person and the community," such court shall
order the detention of the person before trial. The factors to be consid-
ered in determining whether to release a defendant pending trial are
set forth in 18 U.S.C. § 3142(g) and include: (1) nature and circum-
stances of the offenses charged; (2) the weight of the evidence against
the person; (3) the history and characteristics of the person, including
family ties, the person’s character, ties to the community, and crimi-
nal history; and (4) the nature and seriousness of the danger to any
person or the community that would be posed by the person’s release.
For pretrial detention to be imposed on a defendant, the lack of rea-
sonable assurance of either the defendant’s appearance or the safety
of others or the community, is sufficient; both are not required. Reu-
ben, 974 F.2d at 586. With regard to the risk of flight as a basis for
detention, the government must prove by a preponderance of the evi-
dence that no combination of conditions will reasonably assure the
defendant’s presence at future court proceedings. United States v.
4 UNITED STATES v. STEWART
Hazime, 762 F.2d 34, 37 (6th Cir. 1985); see also United States v.
Medina, 775 F.2d 1398, 1402 (11th Cir. 1985) (noting that, under the
Act, the clear and convincing evidence standard applies only to a
determination that "no condition or combination of conditions will
reasonably assure the safety of any other person and the community").
In this case, at the conclusion of the hearing, the court stated that
after hearing all the evidence presented and the totality of the circum-
stances, it concluded that Stewart posed a substantial flight risk. Cog-
nizant of its duty to report its consideration of the various factors, in
its order the court listed the following reasons for its conclusion: (1)
of the fifty-six million dollars allegedly obtained through the Ponzi
scheme, only five million had been recovered; (2) a portion of the
unrecovered assets surreptitiously obtained through the Ponzi scheme
allegedly was transferred to offshore banks; (3) Stewart is familiar
with and currently maintains at least one offshore bank account; (4)
consistent with the allegations in the indictment that the Defendants
used gold coins to launder the proceeds of the Ponzi scheme, approxi-
mately one hundred thousand dollars in currency, largely in gold
coins, was recovered from the residence; (5) Stewart frequently used
an alias when traveling; (6) Stewart is allegedly one of three principal
actors in the Ponzi scheme; and (7) the other two principal actors in
the Ponzi scheme (neither of whom was granted bond) have entered
into plea agreements with the Government and are providing assis-
tance in the prosecution of this case.
After reviewing the relevant materials, we conclude that the district
court complied with the terms of the Bail Reform Act by considering
the relevant factors and including its written findings of fact and a
written statement for the reasons for the detention. Hence, Stewart’s
argument is without merit. We further find that the district court’s
conclusion that Stewart posed a risk of flight is supported by a pre-
ponderance of the evidence. Given Stewart’s use of aliases in the past
and his extensive knowledge of ways to evade the Government, it is
not likely that any condition or combination of conditions would rea-
sonably assure his appearance. As to Stewart’s allegation of the dis-
trict court judge’s bias against military career individuals, the
assertion is conclusory and wholly unsupported.
Accordingly, we affirm the district court’s order revoking Stew-
art’s release. We dispense with oral argument because the facts and
UNITED STATES v. STEWART 5
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED