United States v. Pauline Bauer

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-3068 September Term, 2021
1:21-cr-00386-TNM-2
Filed On: January 24, 2022
United States of America,
Appellee
v.
Pauline Bauer,
Appellant
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Consolidated with 21-3082
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Wilkins, Rao, and Jackson, Circuit Judges
JUDGMENT
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the memoranda of law and fact filed by the parties.
The court has determined that the issues presented occasion no need for an opinion.
See D.C. Cir. Rule 36. It is
ORDERED AND ADJUDGED that the district court’s September 17, 2021 oral
order revoking appellant’s pretrial release and ordering her detained and the district
court’s September 24, 2021 oral order denying appellant’s first motion for
reconsideration be affirmed. The district court did not err in revoking appellant’s pretrial
release and ordering her detained based on its findings that clear and convincing
evidence showed that appellant had violated two conditions of her pretrial release, see
18 U.S.C. § 3148(b)(1)(B), and that she was unlikely to abide by any condition or
combination of conditions of release, see id. § 3148(b)(2)(B).
Appellant’s arguments against detention are unavailing. First, appellant argues
that the underlying conditions of release she was found to have violated are invalid
because they either were not the least restrictive conditions necessary to reasonably
assure her appearance, see id. § 3142(c)(1)(B), or were not adequately explained by
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-3068 September Term, 2021
the district court, see id. § 3142(h)(1). Even assuming appellant’s challenges are timely
and therefore properly before the court, we discern no error given appellant’s repeated
insistence that the district court lacked jurisdiction over her and the thorough
explanation of the conditions provided by both the district court and the magistrate
judge.
Second, appellant argues that detention pursuant to § 3148, absent prior
findings authorizing detention in the first instance under § 3142, violates due process
and the Eighth Amendment. Appellant did not raise this argument in the district court.
Accordingly, our review is for plain error. See Fed. R. Crim. P. 52(b); see also United
States v. Sheffield, 832 F.3d 296, 311 (D.C. Cir. 2016). Appellant cannot show plain
error because neither this court nor the Supreme Court has addressed whether
detention under § 3148 in such circumstances can violate the constitution. See United
States v. Olano, 507 U.S. 725, 734 (1993) (“A court of appeals cannot correct an
error . . . unless the error is clear under current law.” (emphasis added)); United States
v. Brown, 892 F.3d 385, 393 (D.C. Cir. 2018). It is
FURTHER ORDERED AND ADJUDGED that the appeal from the district court’s
November 15, 2021 order deferring consideration, pursuant to Federal Rule of Criminal
Procedure 37(a)(1), of appellant’s second motion for reconsideration be dismissed for
lack of jurisdiction. Appellant asserts no basis for this court’s jurisdiction to review the
order deferring consideration, and she does not address the order in her memorandum
of law and fact. In any event, the order is not appealable under 28 U.S.C. § 1291 or 18
U.S.C. § 3145, nor is it appealable under the collateral-order doctrine. See Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after the
resolution of any timely petition for rehearing or petition for rehearing en banc. See
Fed. R. App. P. 41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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