United States v. Quan Howard , 793 F.3d 1113 ( 2015 )

FILED
FOR PUBLICATION JUL 17 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10259
Plaintiff - Appellee, D.C. No. 5:14-cr-00390-LHK-1
(PSG)
v. Northern District of California,
San Jose
QUAN PHAM HOWARD,
Defendant - Appellant. ORDER
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted to Motions Panel July 17, 2015
Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.
PER CURIAM:
This is an appeal from the district court’s revocation of appellant’s pretrial
release order. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C.
§ 1291.
We review the district court’s factual findings concerning the danger that
appellant poses to the community under a “‘deferential, clearly erroneous
standard.’” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting
United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The conclusions
based on such factual findings, however, present a mixed question of fact and law.
Hir, 517 F.3d at 1086. Thus, “the question of whether the district court’s factual
determinations justify the pretrial detention order is reviewed de novo.” Id. at
1086-87 (citations omitted).
The district court may enter an order of revocation and detention if, after a
hearing, the court: (1) finds that there is either “probable cause to believe that the
person has committed a Federal, State, or local crime while on release” or “clear
and convincing evidence that the person has violated any other condition of
release”; and (2) finds that “based on the factors set forth in [18 U.S.C. § 3142(g)],
there is no condition or combination of conditions of release that will assure that
the person will not flee or pose a danger to the safety of any other person or the
community” or “the person is unlikely to abide by any condition or combination of
conditions of release.” 18 U.S.C. § 3148(b)(1) & (2).
The nature of the conduct on which the district court based the revocation
order is not clear from the record. In particular, it is not clear whether the district
court found that there is probable cause to believe that appellant has committed a
crime while on release. Nor is it clear whether the district court found that there is
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clear and convincing evidence that appellant violated any other condition of
release. We therefore remand the matter to the district court for clarification and
for further findings, to the extent further findings are necessary.
REMANDED.
The mandate shall issue forthwith.
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Counsel Listing
Daniel L. Barton, Nolan Barton Bradford & Olmos LLP, Palo Alto, California, for
Defendant-Appellant.
Michelle Rodriguez, Special Attorney to the U.S. Attorney General, United States
Department of Justice, Eastern District of California, Sacramento, California, for
Plaintiff-Appellee.
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FILED
JUL 17 2015
MOLLY C. DWYER, CLERK
KOZINSKI, Circuit Judge, concurring: U.S. COURT OF APPEALS
I join my colleagues in remanding for further findings. But, I’m troubled by
the condition of release that defendant has been found to have violated. As a
condition for staying out of jail pending trial, defendant was ordered to “have no
contact with any employee of the USPS except his supervisors,” and the order was
later expanded to prevent him from “mak[ing] contact with any postal service
employees, former or current.” Defendant’s counsel unwisely consented to these
conditions, but they strike me as unjustified and probably unconstitutional.
According to our law, there are only two considerations the district court
may take into account in determining whether to release a defendant, and what
condition to impose on such release: (a) ensure that he is not a flight risk; and (b)
ensure that he is not a danger to the community. 18 U.S.C. § 3142(c)(1).
Preventing the defendant from talking to individuals who are potential witnesses at
trial falls into neither of these categories. It certainly does not show a propensity to
flee nor, of itself, is it evidence of being a danger to the community. Merely
talking to a potential witness, even about the subject of his likely testimony, is not
illegal. The government does this again and again with every potential witness, as
long and as often as it wishes. It seems wholly inappropriate and unfair to give the
government unhindered access to witnesses yet throw the defendant in the slammer
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for doing the same. Defendant, no less than the government, has a legitimate
interest in discussing the case with the witnesses, testing their recollections and
helping them articulate the events in terms favorable to his case. When the
government does this, we call it witness prep; there is no justification for calling it
witness tampering when the defendant does precisely the same.
It is possible, of course, that one side or the other will step beyond witness
preparation and onto witness intimidation or tampering. Both the defendant and
the government can be guilty of such practices. See Alex Kozinski, Preface:
Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc., at iii, vii, xxiii n.117
(2015). But I see no justification for precluding only one side from talking to the
witnesses. Defendants should not be presumed to engage in witness tampering or
intimidation; only if there is actual proof of tampering or intimidation should the
district judge get involved. Here there is no such proof. All we’ve been told is
that, as to one witness, defendant suggested a version of the facts consistent with
his theory of the case. As the district court found, “Mr. Howard . . . [was] putting
pressure on a potential witness. It may not be saying lie. It may not be saying
testify X, Y, Z, but I think that is pressure on a potential witness.” The district
court seems to define “putting pressure” as any discussion with the witness of his
potential testimony. This is far too broad.
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I see nothing wrong with Howard’s behavior. If he is not encouraging
witnesses to lie or testify in particular ways, how is this “pressure”? Why isn’t he
entitled—just as well as the government—to test the witness’s memory and let him
know the facts as he (Howard) remembers them? If this amounts to pressuring
witnesses, it is far less than the pressure the government often puts on witnesses
when it tries to prep them to testify in its favor. The government does such things
all the time. Id. If we’re going to call what defendant did here tampering, I doubt
there are more than a handful of prosecutors or police in the land who have not
been guilty of witness tampering.
Judges have no dog in this fight. Our duty is to apply the rules fairly and
equally to both sides. If Howard is to be prevented from talking to the post office
witnesses, then there must be an equal prohibition applied to the government. But
if the government is going to be allowed to talk to the witness, defendant must
have equal access. It’s only fair.
I would therefore disapprove—and disregard—any condition on Howard’s
liberty that is not tied closely two the two statutory requirements for the granting of
pretrial release, and any condition involving access to evidence of witnesses that is
not enforced with equal vigor against the government—unless there is a specific
showing that the defendant has engaged in witness intimidation or tampering, as
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those terms are strictly defined by the criminal laws prohibiting such conduct. The
government here has shown nothing close, so I would order Howard released at
once pending further fact-finding by the district court.