United States v. Minor ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 6, 2006
Charles R. Fulbruge III
Clerk
No. 06-60903
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL S. MINOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:03-CR-120-1
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Before King, Higginbotham, and GARZA, Circuit Judges.
PER CURIAM:*
Appellant Paul S. Minor, an attorney at law, is being
detained without bail pending trial on charges generally alleging
that he conspired with and bribed two Mississippi state-court
judges. Minor was originally released on $10,000 personal
recognizance bond. However, Minor’s release was revoked and he
was ordered detained, based on the district court’s findings that
he had violated the terms and conditions of his pretrial release
by unauthorizedly being out of range of his electronic monitoring
equipment. The court found further that Minor is unlikely to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60903
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abide by any condition or conditions of release and that no
condition or conditions of release will assure that Minor will
not pose a danger to the community. Minor appeals and we affirm
the detention order.
On appeal, “[t]he district court’s detention order must be
sustained if it is supported by the proceedings below.” United
States v. Aron, 904 F.2d 221, 223 (5th Cir. 1990)(citations and
quotation marks omitted). This is “a narrow standard of review
that we have equated to the abuse of discretion standard.”
United States v. Barker, 876 F.2d 475, 476 (5th Cir.
1989)(citations and quotation marks omitted). “This court
reviews the factual basis for the order revoking release under
the clearly erroneous standard.” Aron, 904 F.2d at 223.
Minor contends that the district court abused its discretion
by concluding that he was unlikely to abide by any condition or
combination of conditions of release as provided by 18 U.S.C.
§ 3148(b), based on two instances of being out of range of his
electronic monitor. He argues that the court should have
considered the intermediate remedy of criminal contempt.
The statute provides that a “judicial officer shall enter
an order of revocation and detention if, after a hearing, the
judicial officer” (1) finds, by clear and convincing evidence,
that a defendant violated a condition of release (other than a
new violation of federal, state, or local law) and (2) finds that
the defendant “is unlikely to abide by any condition or
No. 06-60903
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combination of conditions of release.” 18 U.S.C. § 3148(b).
“[A] district court’s finding that a defendant will not abide by
any conditions of release may be established by a preponderance
of the evidence.” Aron, 904 F.2d at 224.
The statute clearly provides that these findings alone are
sufficient to justify revocation and detention; a court need not
also find that the defendant will flee or pose a danger to the
community. See 18 U.S.C. § 3148(b)(setting out required findings
in the disjunctive; see also Aron, 904 F.2d at 224 (noting that
the district court had relied on a finding that the defendant was
unlikely to abide by conditions of release, “rather than upon the
presumption that” he would pose a danger to the community).
The district court previously found that Minor presented a
danger to the community based on his alcohol abuse. There is
evidence that supports the district court’s finding that after
lengthy inpatient treatment, Minor defied and tested the court’s
conditions of pretrial release, which had been tailored to
protect the public and to prevent him from abusing alcohol.
Minor’s unauthorized September 5, 2006, meeting with a hurricane
expert at a restaurant serving alcohol not only raised issues
concerning his substance abuse problems, it also showed his
deception of the court and his disregard of the order of August
24, which states that there were to be no exceptions to the
electronic monitoring unless ordered by the court.
No. 06-60903
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Minor knew and understood how to seek the court’s approval
to leave his residence, as he had twice successfully asked the
court to allow him to attend medical appointments with his wife.
Both times, Minor submitted his request in writing and was later
informed that the court had granted the request. Minor himself
testified that he knew that the court’s failure to act on a
request operated as a de facto denial of that request.
Thus the record adequately supports the district court’s
conclusion that Minor violated his conditions of release and
would be unlikely to abide by any condition or combination of
conditions of release. Therefore, under 18 U.S.C. § 3148(b), the
court did not abuse its discretion in revoking Minor’s pretrial
release and remanding him to custody.
Such a result is indicated by § 3148(b), contrary to Minor’s
suggestion that the matter could have been handled as one of
criminal contempt, pursuant to § 3148(c). Section 3148(c)
provides only that a “judicial officer may commence a prosecution
for contempt, under [18 U.S.C. 401] if the person has violated a
condition of release.” It does not advert to the situation in
which a defendant is found to be unlikely to abide by any
condition or conditions of release.
AFFIRMED.