United States v. Paul Manafort, Jr. , 897 F.3d 340 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided July 31, 2018
No. 18-3037
UNITED STATES OF AMERICA,
APPELLEE
v.
PAUL JOHN MANAFORT, JR.,
APPELLANT
On Appeal of a Pretrial Detention Order
(No. 1:17-cr-00201-1)
Frank P. Cihlar, Richard W. Westling, and Thomas E.
Zehnle were on appellant=s Memorandum of Law and Fact.
Andrew Weissman and Scott A.C. Meisler, Attorneys, U.S.
Department of Justice, were on appellee=s Memorandum of
Law and Fact. Michael R. Dreeben and Adam C. Jed,
Attorneys, U.S. Department of Justice, entered appearances.
Before: TATEL, GRIFFITH and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: We consider an appeal of a
pretrial detention order issued after revoking release due to the
2
defendant’s alleged commission of new crimes of witness
tampering while released. We affirm.
I.
On October 27, 2017, the United States, by and through a
Grand Jury convened by Special Counsel Robert S. Mueller,
III, indicted Appellant Paul Manafort on nine criminal charges,
including conspiracy against the United States, money
laundering, failure to file reports of foreign bank and financial
accounts, acting as an unregistered agent of a foreign principal
in violation of the Foreign Asset Registration Act (“FARA”),
and making false and misleading statements. See Indictment,
United States v. Manafort, No. 17-cr-201 (D.D.C. Oct. 30,
2017), ECF No. 13. Following his arrest and arraignment, the
District Court released Appellant to home confinement with
various conditions. See Order Setting Conditions for High
Intensity Supervision Program, United States v. Manafort, No.
17-cr-201 (D.D.C. Oct. 30, 2017), ECF No. 9. Among the
conditions, the release order stated that Appellant was “not to
commit any criminal offense” while on release, and “a rearrest
for any offense based upon probable cause may be grounds for
revoking [] release.” Id. at 2. This condition – to not commit
any further crimes – was imposed yet again when his release
conditions were modified a few weeks later. See Order, United
States v. Manafort, No. 17-cr-201 (D.D.C. Dec. 15, 2017), ECF
No. 95.
As discussed below, the alleged violation of this release
condition is the core of this appeal.
In the meantime, the District Court issued a “gag order,”
which commanded all parties involved in the case “to refrain
from making further statements to the media or in public
settings that are ‘substantially likely to have a materially
3
prejudicial effect on this case,’” without objection. Order
(“Gag Order”) at 1, United States v. Manafort, No. 17-cr-201
(D.D.C. Nov. 8, 2017), ECF No. 38 (quoting Gentile v. State
Bar of Nev., 501 U.S. 1030, 1076 (1991)). In a filing relating
to conditions of release, the Government proffered that
Appellant had violated the Gag Order by “ghostwriting an
editorial . . . regarding his political work for Ukraine.” See
Gov.’s Opp’n to Def.’s Mot. to Modify Conditions of Release
at 2, United States v. Manafort, No. 17-cr-201 (D.D.C. Dec. 4,
2017), ECF No. 73. On December 5, the District Court ordered
Appellant to show cause why he had not violated the Gag
Order. See Minute Order, United States v. Manafort, No.
17-cr-201 (D.D.C. Dec. 5, 2017). Appellant responded that he
merely had “edited” the op-ed “to ensure its accuracy” and that
the Ukrainian editorial was unlikely to reach an American
audience, so it did not pose a substantial likelihood of a
materially prejudicial effect. See Def.’s Reply Mem. to Gov.’s
Opp’n to Mot. to Modify Conditions of Release and Resp. to
Minute Order, United States v. Manafort, No. 17-cr-201
(D.D.C. Dec. 7, 2017), ECF No. 79. The District Court
discharged the show-cause order, but noted that it would “view
similar conduct in the future to be an effort to circumvent and
evade the requirements” of the Gag Order. Status Conference
Tr. at 12, United States v. Manafort, No. 17-cr-201 (D.D.C.
Dec. 11, 2017), ECF No. 112. The District Court also stated
that it would consider the issue of the editorial “in connection
with [its] consideration of the bond issue.” Id.
The investigation of Appellant apparently continued,
because the Special Counsel filed a superseding indictment
against Appellant on February 23, 2018. See Superseding
Indictment, United States v. Manafort, No. 17-cr-201 (D.D.C.
Feb. 23, 2018), ECF No. 202. The February 23 Superseding
Indictment included new details about how Appellant allegedly
acted as an unregistered agent of a foreign principal and related
4
offenses. Specifically, the indictment alleged that Appellant
and his associates retained former senior European politicians,
which they referred to as the “Hapsburg group,” to advocate on
behalf of certain Ukrainian principals by conducting “outreach
to United States politicians and press” and by “lobbying in the
United States.” Id. ¶¶ 29-30.
The indictment in our District Court is not the only federal
criminal case pending against Appellant. On February 22,
2018, the Special Counsel filed a separate superseding
indictment against Appellant in the United States District Court
for the Eastern District of Virginia, alleging tax evasion, failure
to report foreign assets, and bank fraud. United States v.
Manafort, No. 18-cr-83 (E.D. Va. Feb. 22, 2018), ECF No. 9.
(Apparently venue for these charges does not lie in the District
of Columbia, and Appellant declined to waive venue. See
Appellee’s Br. 6 n.4.) The District Court for the Eastern
District of Virginia entered a pretrial release order on March 9,
2018, which contained a condition not found in the District of
Columbia release orders, namely that Appellant “must avoid
all contact, directly or indirectly, with any person who is a
victim or witness in the investigation or prosecution of the
defendant.” Order (“EDVA Stay-Away Order”) at 3, United
States v. Manafort, No. 18-cr-83 (E.D. Va. Mar. 9, 2018), ECF
No. 25.
This brings us to the events directly underlying the instant
appeal. On June 4, 2018, the Government moved to revoke
Appellant’s release and remand him into custody pending trial
pursuant to 18 U.S.C. § 3148. See Gov.’s Mot. to Revoke or
Revise Def.’s Current Order of Pretrial Release, United States
v. Manafort, No. 17-cr-201 (D.D.C. June 4, 2018), ECF No.
315. The Government argued that Appellant violated the terms
of his release “by attempting to tamper with potential
witnesses” in violation of 18 U.S.C. § 1512(b)(1). Id. at 1. The
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core allegations of the Government’s motion related to “[t]wo
individuals who were principals of a public-relations company
[that] acted as intermediaries between Manafort, [an associate
then identified as Person A], co-defendant Richard Gates, and
the Hapsburg group.” Id. at 4. The Government contended that
Appellant “repeatedly contacted” these two witnesses –
Persons D1 and D2 – “in an effort to secure materially false
testimony concerning the activities of the Hapsburg group.” Id.
at 5. As detailed in FBI Agent Brock Domin’s declaration,
filed with the Government’s revocation motion, the
Government alleges that Appellant attempted to contact D1 and
D2 on multiple occasions from February 24, 2018, to April 4,
2018. Decl. in Supp. of Gov’s Mot. to Revoke or Revise Def.’s
Current Order of Pretrial Release (“Domin Decl.”), United
States v. Manafort, No. 17-cr-201 (D.D.C. June 4, 2018), ECF
No. 315-2. These attempts included a call to D1 in which
“Manafort stated that he wanted to give Person D1 a heads-up
about Hapsburg,” a message Appellant sent to D1 via an
encrypted application transmitting a link to a news story about
the February 23 Superseding Indictment with a note that “[w]e
should talk. I have made clear that they worked in Europe,”
and text messages from Person A to D1 and D2 conveying that
“P want[ed] to give [D1] a quick summary that he says to
everybody (which is true) that our friends never lobbied in the
US, and the purpose of the program was EU.” Domin Decl.
¶¶ 14-17. Other messages conveyed Appellant’s interest in
contacting D1 and D2. Id. ¶ 18.
Significantly, both D1 and D2 told Agent Domin that the
Hapsburg group lobbied in the United States, not just in
Europe. Id. ¶¶ 19-20. Thus, “D1 understood [Appellant’s]
messages to be an effort to ‘suborn perjury.’” Id. ¶ 19.
Similarly, D2 understood Appellant’s outreach as an effort to
get D1 to tell the members of the Hapsburg group that if they
“were contacted by anyone, they should say that their lobbying
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. . . work was exclusively in Europe,” id. ¶ 20, even though that
was not true.
A few days after filing the motion to revoke Appellant’s
release, the Special Counsel filed a second Superseding
Indictment. Superseding Indictment, United States v.
Manafort, No. 17-cr-201 (D.D.C. June 8, 2018), ECF No. 318.
The June 8 Superseding Indictment named Appellant’s
associate Konstantin Kilimnik as Person A, who coordinated
with D1 regarding lobbying for Ukraine, and it charged
Appellant and Kilimnik with obstruction of justice and
conspiracy to obstruct justice in violation of 18 U.S.C.
§ 1512(b)(1) (“witness tampering”). Id.
Appellant opposed the Government’s efforts to detain him.
He argued that the accusations of witness tampering rested “on
the thinnest of evidence” because the alleged communications
did not “reflect an intent to corruptly influence a trial witness.”
Def.’s Opp’n to Gov.’s Mot. to Revoke or Revise the Current
Order of Pretrial Release at 1-2, United States v. Manafort, No.
17-cr-201 (D.D.C. June 8, 2018), ECF No. 319. Rather,
Appellant insisted that the few substantive communications
were “entirely consistent with Mr. Manafort’s stated position
and repeated assertion of his innocence.” Id. at 4. Appellant
also argued that he was not precluded from communicating
with anyone, including possible witnesses, by the District of
Columbia release orders, and he was unaware of which
individuals would be potential witnesses in any event. Id. at
7-8.
After convening a hearing and allowing extensive
argument by both sides, the District Court granted the
Government’s motion and ordered Appellant detained. See
June 15, 2018 Hr’g Tr. (“Hr’g Tr.”), United States v. Manafort,
No. 17-cr-201 (D.D.C. June 15, 2018), ECF No. 329. The
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District Court stated its findings and conclusions on the record,
and it supplemented the oral findings by written memorandum
opinion later that day, incorporating the reasons stated at the
hearing. See Order of Detention (“Mem. Op.”) at 1, United
States v. Manafort, No. 17-cr-201 (D.D.C. June 15, 2018), ECF
No. 328.
First, the District Court concluded that the Grand Jury’s
indictment of Appellant on witness-tampering charges gave
rise to a finding under 18 U.S.C. § 3148(b)(1)(A) of “probable
cause to believe that the person has committed a Federal, State,
or local crime while on release.” See Hr’g Tr. at 19; Mem. Op.
at 11. The court noted that the “commission of a crime” was
the only potential violation of a condition of release that “[had]
been put before [the District Court],” Hr’g Tr. at 19, and so
rested the § 3148(b)(1) finding solely on the commission of a
subsequent offense while on release. The District Court
declined to “get into any assessment of the strength or the
deficiencies of the evidence that’s been presented” because the
Grand Jury indictment was conclusive as to probable cause. Id.
at 18.
The finding of probable cause that Appellant committed
an offense while on release gave rise to a “rebuttable
presumption” “that no condition or combination of conditions
will assure that the person will not pose a danger to the safety
of any other person or the community.” Id. at 19. Because
Appellant “did supply some exhibits” regarding the
witness-tampering charges, the District Court found, “given the
low threshold here, that [Manafort] ha[d] come forward with
some evidence to rebut the presumption.” Id. at 23; Mem. Op.
at 15. However, the presumption remained a relevant factor in
the District Court’s assessment of the danger Appellant may
pose to the safety of the community. Hr’g Tr. at 22; Mem. Op.
at 15. The District Court also discussed the possibility that the
8
witness contacts at issue violated the EDVA Stay-Away Order,
and it explained its concerns regarding Appellant’s November
2017 activity in editing the Ukrainian editorial while restricted
by the Gag Order, which it considered “skating close to the
line.” Hr’g Tr. at 49-51.
Weighing this information, the District Court made two
findings under 18 U.S.C. § 3148(b)(2). First, the District Court
concluded under § 3148(b)(2)(A) that no combination of
conditions could assure that Appellant would not pose a danger
to the safety of the community if he remained on release. 1 The
court reasoned that the witness-tampering charges indicate that
Appellant poses a danger to the safety of the community
through “harm to the administration of justice; harm to the
integrity of the courts.” Mem. Op. at 17. While these risks are
“abstract,” the court explained, the charges represent “a corrupt
attempt to undermine the integrity and truth of the fact-finding
process upon which our system of justice depends.” Id.
Moreover, the potential harm relates to the “danger that the
defendant will commit another crime of any nature while he is
on release.” Id. Weighing “the nature of allegations in the
superseding indictment and the evidence supplied in support of
the government’s motion . . . and the clear impact the
1
The District Court did not state by what standard of proof it made
this finding, and we can resolve this appeal without delving into that
issue. Cf. United States v. Simpkins, 826 F.2d 94, 96 (D.C. Cir. 1987)
(detention based on communal safety reviewed to determine if
supported by clear and convincing evidence, while detention based
on risk of flight reviewed to determine if supported by a
preponderance of the evidence). Nonetheless, district courts would
be well advised to state the standard of proof being employed on the
record in future circumstances, just in case. Cf. United States v.
Nwokoro, 651 F.3d 108, 111-12 (D.C. Cir. 2011) (per curiam)
(remanding for further explication of reasoning where explanation in
detention order was insufficient).
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statements had on the recipient, who reported them to the
prosecution as an attempt to suborn perjury,” with the
presumption arising from the Grand Jury’s finding of probable
cause for the witness-tampering charges, the court concluded
“that there are no conditions that would assure that the
defendant will comply with the most fundamental condition of
release under the Bail Reform Act: that he not commit a
Federal, State, or Local crime during the period of release.” Id.
at 19.
Second, the District Court held that Appellant could not
“be trusted to comply with the Court’s directives” with respect
to any conditions of release. See Hr’g Tr. at 51; Mem. Op. at
17, 19. The District Court reasoned that “[i]t would be entirely
impractical and ineffective to demand the surrender of
[Manafort’s] cell phone or to disconnect his internet service at
home,” due to the difficulty of monitoring to ensure
compliance. Mem. Op. at 17. The District Court further
explained that it was “very troubled” that some of the alleged
contacts with witnesses were made after the EDVA Stay-Away
Order was in place, noting that it would “consider the
defendant’s adherence to that Court’s admonitions in
determining whether it can place its trust in the defendant.” Id.
at 18. Finally, the court considered Appellant’s request for “the
issuance of an order [listing witnesses] that would absolutely
be clear enough for him to follow.” Id. In the District Court’s
view, such an order would be unworkable: “there is a real risk
that the defendant will interpret any list naming certain
individuals as license to contact any other individuals involved
in the investigation. The Court cannot draft an order that is
specific enough to cover every possible future violation of the
United States Code, and it should not have to.” Id. at 18-19.
On this rationale, the District Court held that “it could not find,
as the statute requires that it must, that defendant Manafort
10
would abide by [any additional] conditions” of release. Id. at
19.
Having made the required findings under 18 U.S.C.
§ 3148(b), the District Court ordered Appellant detained.
Manafort appealed the District Court’s detention order ten
days later. He sought release pending his appeal under Federal
Rule of Appellate Procedure 9(a)(3), which this Court denied.
We now address Appellant’s merits appeal.
II.
The District Court relied solely on probable cause of
Appellant’s commission of a crime to find that Appellant was
subject to revocation of his release under § 3148(b)(1)(A).
That finding is not contested here. The District Court then
made each of the two § 3148(b)(2) findings, that the proposed
package of release conditions would not assure the safety of the
community under § 3148(b)(2)(A), and that Appellant is
unlikely to abide by any conditions of release under
§ 3148(b)(2)(B). Appellant challenges each of these findings.
Either finding provides an independent basis for detention, so
upholding either finding is sufficient to uphold the District
Court’s detention order.
Appellant asserts that both findings are reviewed for clear
error, Appellant’s Br. 9-10, and the Government does not
disagree, Appellee’s Br. 12-13, 19. We employ the clear error
standard of review because both parties ask us to do so, though
we note that the standard of review for the determination that a
defendant is unlikely to abide by any conditions of release
11
remains an open question in this Court. 2 Because we find no
clear error in the District Court’s finding that Appellant is
unlikely to abide by any conditions of release, we affirm and
therefore do not reach the challenge to the dangerousness
finding.
Appellant attacks three underlying factual bases upon
which the District Court found that Appellant would be
unlikely to abide by any conditions the District Court might
craft: (1) the June 8 Superseding Indictment against Appellant
for witness tampering; (2) Appellant’s potential violation of the
2
Although we have previously characterized a finding of
dangerousness in a detention determination as a finding of fact to be
reviewed for clear error, United States v. Smith, 79 F.3d 1208, 1209
(D.C. Cir. 1996) (per curiam) (citing Simpkins, 826 F.2d at 96), we
have never addressed detention based upon a finding that the
defendant was unlikely to abide by conditions of release. Other
circuits have taken varying approaches to review of detention orders.
Some treat the ultimate determinations of dangerousness, risk of
flight, or likelihood of abiding by conditions of release as factual
findings to which a clear error standard of review applies. See United
States v. English, 629 F.3d 311, 319 (2d Cir. 2011); United States v.
Clark, 865 F.2d 1433, 1437 (4th Cir. 1989) (en banc); United States
v. Gotti, 794 F.2d 773, 779 (2d Cir. 1986). Others have applied what
has been described as “independent review” with some deference to
the district court. United States v. O’Brien, 895 F.2d 810, 814 (1st
Cir. 1990); United States v. Portes, 786 F.2d 758, 762 (7th Cir.
1985). Still other courts defer to the district-court factual findings,
but treat “conclusions based on such factual findings,” including the
necessity of detention, as mixed questions of fact and law, reviewed
de novo. See United States v. Howard, 793 F.3d 1113, 1113 (9th Cir.
2015) (citing United States v. Hir, 517 F.3d 1081, 1086-87 (9th Cir.
2008)); accord United States v. Stone, 608 F.3d 939, 945 (6th Cir.
2010) (reviewing “the ultimate question whether detention is
warranted” de novo). We leave resolution of these thorny questions
for another day when they are fully presented and briefed.
12
Stay-Away Order issued in his separate case pending in the
Eastern District of Virginia; and (3) Appellant’s actions in
relation to the Gag Order issued by the District Court in the
DDC case. Appellant’s Br. 18, 19-20, 20-22.
We agree with Appellant that the District Court’s implicit
finding that his communications violated the EDVA
Stay-Away Order is problematic. At the detention hearing, the
District Court viewed the EDVA Stay-Away Order as
sufficiently broad to cover any potential witnesses in the
EDVA or DDC cases, Hr’g Tr. at 50, and the written detention
ruling, after characterizing the EDVA Stay-Away Order as
“clear and unambiguous,” suggested that Appellant had not
adhered to that order, Mem. Op. at 18. For several reasons, we
disagree.
First, the statutory scheme supports a narrow reading of
stay-away orders. Congress specified that a release order
“include a written statement that sets forth all the conditions to
which the release is subject, in a manner sufficiently clear and
specific to serve as a guide for the person’s conduct.” 18
U.S.C. § 3142(h)(1) (emphasis added). The statutory
requirement for clarity accords with the familiar rule that the
court should not punish someone for violating an order if the
terms of that order are unclear. Cf. Armstrong v. Exec. Office
of the President, Office of Admin., 1 F.3d 1274, 1289 (D.C. Cir.
1993) (reversing a civil contempt finding because of ambiguity
in the order). The language in the EDVA Stay-Away Order is
at the very least ambiguous with respect to whether the
prohibition on contact with “any person who is a victim or
witness in the investigation or prosecution” prohibits contact
with potential witnesses to conduct underlying charges brought
in a separate case in another jurisdiction. And any ambiguity
in the EDVA Stay-Away Order should be construed against the
Government, not Appellant.
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Second, the statutory provision authorizing stay-away
orders focuses on the specific offense pending before that court
at that moment. Section 3142 provides, as a potential condition
of release, a requirement that the defendant “avoid all contact
with an alleged victim of the crime and with a potential witness
who may testify concerning the offense.” 18 U.S.C.
§ 3142(c)(1)(B)(v) (emphases added). The use of the definite
article “the” before “crime” and “offense” suggests a narrow
reading of pretrial release orders, confined to witnesses to the
alleged conduct charged in the particular case for which the
defendant has sought pretrial release. That same definite article
is incorporated into the EDVA release order. EDVA
Stay-Away Order at 3 (Appellant “must avoid all contact,
directly or indirectly, with any person who is a victim or
witness in the investigation or prosecution of the defendant”
(emphasis added)). Thus, it would be natural for anyone,
including Appellant, to believe that the no-contact provision is
applicable only to the particular charges brought in the EDVA
case. While we agree that the Stay-Away Order could
plausibly be read to cover witnesses in the District of Columbia
case, such a reading is not clear and unambiguous.
Third, we find it significant that the Government never
contended below that Appellant violated the EDVA
Stay-Away Order. If the no-contact provisions of the order
clearly applied to Appellant’s conduct, it seems quite curious
that the Government never said so below. (The Government
attempts to do so now, see Appellee’s Br. 20, but because it did
not raise this argument before the District Court, it is forfeited.)
The context of the hearing indicates that the District Court
concluded that the EDVA Stay-Away Order covered witnesses
in the District of Columbia case. See Hr’g Tr. at 31 (asking
Appellant if it is his “position that he could call witnesses in
14
this [District of Columbia] case, but not witnesses in that
[EDVA] case?”). Further, the District Court construed D1 and
D2 to be witnesses in the District of Columbia case, because all
of the discussion centered around Appellant’s attempts to
discuss their testimony about the then-new allegations related
to the unregistered-foreign-agent charges in the February 23
Superseding Indictment in the District of Columbia. Thus, the
District Court found that Appellant violated the EDVA
Stay-Away Order by contacting witnesses in the District of
Columbia case, not witnesses in the EDVA case. This finding
was error.
But what impact does this error have on the ultimate
finding that Appellant is unlikely to abide by conditions of
release in the future? When reviewing under the clear error
standard, “we do not weigh each piece of evidence in isolation,
but consider all of the evidence taken as a whole.” Barhoumi
v. Obama, 609 F.3d 416, 424 (D.C. Cir. 2010) (quoting Awad
v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010)).
Despite the District Court’s finding that Appellant violated
the terms of the EDVA Stay-Away Order, that error does not
undermine the District Court’s ultimate conclusion. Given the
District Court’s consideration of all of the information before
it and its other subsidiary findings, we are not “left with the
definite and firm conviction that a mistake has been
committed” in the District Court’s finding under
§ 3148(b)(2)(B), in light of “the entire evidence.” See
Barhoumi, 609 F.3d at 423 (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
We find no clear error in the District Court’s ultimate
finding that “there are no conditions that would assure that the
defendant will comply with the most fundamental condition of
release under the Bail Reform Act: that he not commit a
15
Federal, State, or local crime during the period of release.”
Mem. Op. at 19. This finding was based on Appellant’s course
of conduct throughout the “six months” he had remained
released in the District of Columbia case and Appellant’s
“abuse[] [of] the trust placed in” him by the District Court
during that time. Hr’g Tr. at 51. That course of conduct
included Appellant’s decision to push the envelope by
contributing to an op-ed in a foreign newspaper while under the
Gag Order and his repeated communications with potential
witnesses, personally and through an intermediary. “[A]ll of
this” conduct, which the District Court chronicled in detail
during the hearing, “affect[ed] [the District Court’s] judgment
about whether [Appellant] can be trusted to comply with the
Court’s directives.” Id. The District Court did not clearly err
by finding Appellant was unlikely to do so.
The conduct that loomed largest – in both the briefing on
the revocation motion and in the District Court’s findings – was
the evidence suggesting Appellant had committed a crime
while on release. The District Court found that if Appellant
had committed a new crime even while ordered not to commit
a new crime, it was likely to happen again. The District Court
observed that there was no way to prevent Appellant from
accessing devices that would enable him to contact witnesses
while released, Mem. Op. at 17, and thus no way to ensure that
further witness tampering would not occur in the future unless
he were detained. After all, the communications with D1 and
D2 were only discovered by the Government because the
witnesses reported them; otherwise, they likely would have
gone undetected. The District Court’s core conclusion was that
even if it entered an order commanding Appellant not to
commit further crimes, and even if the order listed every
offense in the U.S. Code, it would not be effective because
Appellant would attempt to circumvent it. Id. at 18-19. It was
also not lost on the District Court that Appellant had been
16
warned about “skating close to the line” with respect to the
potential violation of the Gag Order, Hr’g Tr. at 50, and yet
Appellant failed to heed those warnings and went right past the
line with the alleged witness tampering.
While it is true that the District Court also considered the
communications to be a violation of the EDVA Stay-Away
Order, we do not find clear error after reviewing the entirety of
the District Court record. The ultimate § 3148(b)(2)(B) finding
was that Appellant was unlikely to abide by any conditions the
District Court might impose, including the “most fundamental
condition of release . . . that he not commit [additional]
crime[s] during the period of release.” Mem. Op. at 19. The
District Court’s treatment of the EDVA Stay-Away Order was
merely part of the icing; the cake had already been baked.
We find Appellant’s remaining arguments to be without
merit. Therefore the District Court’s detention order is
Affirmed.