United States v. Schulte

21-3113 (L)
United States v. Schulte
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 3rd day of May, two thousand twenty-two.
PRESENT:
DENNY CHIN,
RICHARD J. SULLIVAN,
JOSEPH F. BIANCO,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 21-3113 (L)
JOSHUA ADAM SCHULTE,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: Joshua Adam Schulte, pro se,
Brooklyn, NY.
For Appellee: David W. Denton, Jr., Michael D.
Lockard, Won S. Shin, Assistant
United States Attorneys, for Damian
Williams, United States Attorney for
the Southern District of New York,
New York, NY.
Appeal from an order of the United States District Court for the Southern
District of New York (Jesse M. Furman, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Joshua Schulte, proceeding pro se, appeals from the district court’s
December 20, 2021 denial of his renewed application for bail. He has been
detained since December 2017, while awaiting trial and/or retrial on grand jury
charges for espionage, making false statements to FBI agents, obstruction of
justice, and contempt of court – all related to his alleged theft of classified
information from the Central Intelligence Agency (“CIA”) and unauthorized
disclosure of such information to WikiLeaks – as well as for possession of child
pornography and criminal copyright infringement.
The district court initially released Schulte on bail at his September 2017
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arraignment, but then revoked bail and remanded him to the custody of the United
States Marshals Service on December 14, 2017, after the Commonwealth of
Virginia placed a detainer on him for charges involving a sexual assault of a minor
In January 2018, the district court denied Schulte’s application to reinstate bail,
citing both the pending Virginia sexual assault charges and Schulte’s violating the
terms of his initial bail by having his roommate access computers on his behalf. In
March 2018, a panel of this Court affirmed the district court’s denial of bail and
denied Schulte’s subsequent request, addressed directly to this Court, for bail.
Since October 2018, Schulte has been subject to restrictive confinement conditions
(e.g., solitary confinement and limitations on his non-legal communications)
because of his alleged disclosure of classified information while detained.
After the district court granted his request to sever the child pornography
and criminal copyright infringement counts, Schulte was tried on the remaining
counts (i.e., those relating to his handling of classified information) in February
2020 before Judge Paul A. Crotty. The jury returned guilty verdicts on the counts
for making false statements and contempt of court but was unable to reach a
unanimous verdict on the espionage and obstruction counts, as to which a mistrial
was declared at Schulte’s request. A retrial on those counts, which was delayed
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by Schulte’s decision to proceed pro se and subsequent motion practice, is now
scheduled for June 2022.
In September 2021, Schulte renewed his bail application, arguing that
(1) “new” emails obtained in discovery showed that the FBI had engineered his
state prosecution for sexual assault to cause his bail to be revoked, and (2) the
length of his pretrial detention was unconstitutionally excessive. On December
20, 2021, the district court denied the renewed bail motion, concluding that: (1) the
emails were neither new nor material; (2) “overwhelming evidence” of
dangerousness justified Schulte’s pretrial detention; and (3) his “indisputably”
lengthy detention was not unconstitutionally excessive because the case was
complex, the government was not responsible for the length of the detention, the
charges were exceptionally serious, and the evidence of dangerousness was
overwhelming. Dist. Ct. Doc. No. 663 at 66–68 [hereinafter 12/20/2021 Transcript].
Schulte now appeals from the district court’s December 20, 2021 order. We assume
the parties’ familiarity with the underlying facts, procedural history, and issues on
appeal.
While the government normally bears the burden of justifying pretrial
detention, see United States v. Sabhnani, 493 F.3d 63, 74–75 (2d Cir. 2007), there is a
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rebuttable presumption in favor of detention in cases where, as here, there is
probable cause to believe that the defendant committed an enumerated offense
involving a minor victim, 18 U.S.C. § 3142(e)(3)(E). Once a defendant has been
ordered detained, reopening a bail hearing generally requires a finding “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)(2)(B).
This Court applies “deferential review to a district court’s bail
determination and will not reverse except for clear error.” United States v. Mattis,
963 F.3d 285, 291 (2d Cir. 2020) (citation omitted and alteration incorporated).
“The clear error standard applies not only to the factual predicates underlying the
district court’s decision, but also to its overall assessment, based on those predicate
facts, as to the risk of flight or danger presented by defendant’s release.” Id.(internal quotation marks omitted). “We will find clear error only where, on
[reviewing] the entire[ty] [of the] evidence, we are left with the definite and firm
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conviction that a mistake has been committed.” Id. (internal quotation marks
omitted and alteration incorporated). 1
We find no such error here. In denying Schulte’s renewed request for bail,
the district court concluded that there was “overwhelming evidence” of
dangerousness, “including, but not limited to, his commission of sexual assault,
his receipt and possession of child pornography, evidence of his involvement in
the sophisticated theft and dissemination of highly classified information, his
violations of protective orders, and his continued disclosures and attempted
disclosures of classified information, even from jail.” 12/20/2021 Transcript at 66.
By failing to argue in his opening brief that these factual findings were clearly
erroneous, Schulte has waived any such argument. See Norton v. Sam’s Club, 145
F.3d 114, 117 (2d Cir. 1998).
Schulte nevertheless argues that (1) pretrial detention for possession of child
pornography based on dangerousness is unconstitutional because such an offense
1
Here, we owe deference not only to the district court’s bail determinations, but also to this Court’s March
2018 decision affirming the district court’s earlier denial of bail. See United States v. Plugh, 648 F.3d 118,
123 (2d Cir. 2011) (“As a general matter, this Court will adhere to its own decision at an earlier stage of
the litigation.” (internal quotation marks omitted)). The “law of the case doctrine is subject to limited
exceptions made for compelling reasons,” such as “an intervening change of controlling law, the availability
of new evidence, or the need to correct a clear error or prevent manifest injustice.” Id. at 123–24 (internal
quotation marks omitted); see also United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000) (“We have stated
that we will not depart from this sound policy absent cogent or compelling reasons.” (internal quotation
marks omitted)).
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“is not a crime involving a minor victim” but rather is “a victimless crime,” and
(2) pretrial detention after a hung jury is unconstitutional. Schulte Br. at 20, 31.
But these arguments are meritless and find no support in the law. To the contrary,
this Court has repeatedly noted the “absurdity” of suggestions that trafficking in
“child pornography [is] anything but a serious crime that threatens real, and
frequently violent, harm to vulnerable victims.” United States v. Reingold, 731 F.3d
204, 217 (2d Cir. 2013) (citation omitted). Likewise, we have flatly rejected any
notion of a per se right “to be released on bail pending retrial,” instead making
clear that there is “no constitutional impediment to [a defendant’s] continued
detention” after the district court has granted such defendant’s motion to declare
a mistrial. United States v. Millan, 4 F.3d 1038, 1042, 1049 (2d Cir. 1993). Even
where we ourselves have reversed a defendant’s jury conviction and remanded to
the district court for retrial, we have routinely denied the prevailing defendant-
appellant’s application for bail pending retrial. See, e.g., United States v. Davidoff,
No. CR 85-100, 1988 WL 76568, at *1 (E.D.N.Y. June 30, 1988) (noting that after “the
Second Circuit . . . reversed defendant’s conviction and remanded for a new trial,”
the “Second Circuit [then] denied defendant’s application for release on bail
pending the retrial”), on remand from 845 F.2d 1151 (2d Cir. 1988).
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Schulte also contends that the length of his pretrial detention – which is now
approaching fifty-two months and will have reached nearly four-and-a-half years
by the time his retrial is scheduled to commence in June 2022 – violates due
process. While that is “indisputably a long time,” as the district court
acknowledged, 12/20/2021 Transcript at 67, we have held that “the length of
detention alone is not dispositive and will rarely by itself offend due process,”
United States v. El-Hage, 213 F.3d 74, 79 (2d Cir. 2000) (internal quotation marks
omitted). Rather, when considering “whether the length of pretrial detention has
become unconstitutionally excessive,” the district court is to weigh: “(1) its length,
(2) the extent of the prosecution’s responsibility for delay of the trial, (3) the gravity
of the charges, and (4) the strength of the evidence upon which detention was
based, i.e., the evidence of risk of flight and dangerousness.” Id. We then review
the district court’s “factual determinations for clear error” and its determinations
of the “constitutional significance of those findings, including the ultimate
determination of whether due process has been violated,” de novo. Id.Here, the second, third, and fourth El-Hage factors amply justify the length
of Schulte’s pretrial detention. As to the second factor, the record demonstrates
that the government bears little responsibility for the delay, which is largely
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attributable to Schulte’s own conduct. Moreover, we have recognized that “the
importance and complexity of [a] case and the extensive evidence” entailed in a
case can “reasonably require a lengthy period for pretrial preparation.” United
States v. El-Gabrowny, 35 F.3d 63, 65 (2d Cir. 1994). Here, the district court aptly
observed that “the nature of the charges, the nature of the evidence, and the
circumstances surrounding Mr. Schulte and his detention” have combined to
make this case “among the most complex criminal proceedings” ever to come
before that court. 12/20/2021 Transcript at 67. Notwithstanding the inherent
complexities of this case, the government has consistently sought to schedule a
retrial at the earliest available date. Accordingly, we find no reason “to place the
responsibility for the delay on the prosecution.” El-Gabrowny, 35 F.3d at 65. For
his part, Schulte has repeatedly sought adjournments of the retrial to
accommodate the “long list of things and tasks that he expects . . . to accomplish
before a retrial,” Dist. Ct. Doc. No. 427 at 9, such as his stated plan to file “at least
10 more pretrial motions” between August 2021 and the commencement of the
retrial, Dist. Ct. Doc. No. 490 at 15. Here, then, the second El-Hage factor tips
strongly against Schulte – not unlike the situation in United States v. Hill, where we
found sufficient “justification” for a five-year pretrial detention “in the inherent
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complexities of [that] . . . case, which present[ed] . . . counsel with voluminous
discovery to absorb and the court with myriad motions to address.” 462 F. App’x
125, 127 (2d Cir. 2012); see also id. (noting that, as here, “the record reflect[ed] no
intentional, unwarranted delay by the prosecution, and most of the delay [was]
attributable to the continuances requested by [defendants]”).
As to the third El-Hage factor, the district court found that “the charges
[against Schulte] – both the espionage charges, which involve the alleged theft and
dissemination of some of our nation’s most closely guarded secrets[,] and the child
pornography charges – are exceptionally serious.” 12/20/2021 Transcript at 68. Far
from being clear error, that finding is firmly supported in the record and in
relevant law. As one of our sister circuits has noted, “[e]spionage is one of this
nation’s most serious offenses.” United States v. Whitworth, 856 F.2d 1268, 1289 (9th
Cir. 1988). And as the former Deputy Director of the CIA’s Directorate of Digital
Innovation testified here, the theft of information with which Schulte is charged
“was the equivalent of a digital Pearl Harbor,” and his alleged dissemination of
such information to WikiLeaks “immediately undermined the relationships [the
CIA] had with . . . vital foreign partners, who had often put themselves at risk to
assist the [A]gency,” and “put [CIA] officers and [CIA] facilities, both domestically
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and overseas, at risk.” Dist. Ct. Doc. No. 373 at 1844. Likewise, our law leaves no
doubt that “[t]he prevention of sexual exploitation . . . of children constitutes a
government objective of surpassing importance.” New York v. Ferber, 458 U.S. 747,
757 (1982); see also Child Pornography Prevention Act of 1996, Pub. L. No. 104–208,
sec. 121, 110 Stat. 3009, 3009-26, 3009-27 (codified as amended at 18 U.S.C. § 2251)
(finding that “child pornography permanently records the victim’s abuse, . . .
causes the child victims of sexual abuse continuing harm by haunting those
children in future years,” and “inflames the desires of . . . pedophiles . . . who prey
on children, thereby increasing . . . the sexual abuse and exploitation of actual
children who are victimized as a result of the existence and use of [child
pornography] materials”).
As to the fourth El-Hage factor, we have already discussed – and endorsed –
the district court’s thorough analysis of the “overwhelming evidence,” 12/20/2021
Transcript at 66, of Schulte’s dangerousness.
In sum, we could likely conclude that the second El-Hage factor alone was
sufficient to justify Schulte’s fifty-two- to fifty-four-month pretrial detention in the
circumstances of this case. But the exceptional gravity of the charges against him
and the overwhelming evidence of his dangerousness remove any doubt. See El-
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Hage, 213 F.3d at 79. We therefore conclude that Schulte’s pretrial detention,
although lengthy, has not violated his due process rights.
We have considered all of Schulte’s other arguments on appeal and find
them to be without merit. Accordingly, we AFFIRM the district court’s order
denying his renewed bail application.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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