UNITED STATES v. EBONKA (2024)

ORDER

(Docket No. 52)

Pending before the Court is a joint motion to modify Defendant's conditions of pretrial release with respect to travel restrictions. Docket No. 52. For the reasons discussed below, the motion is DENIED without prejudice.

I. BACKGROUND

On July 19, 2022, a federal grand jury sitting in Las Vegas, Nevada issued an indictment charging Defendant with 13 counts of health care fraud in violation of 18 U.S.C. § 1347. Docket No. 1. On July 21, 2022, the Court held a detention hearing at which the Government emphasized its concern as to Defendant's flight risk. Hearing Rec. (7/21/2022) at 4:02 – 4:03 p.m. The Court released Defendant pending trial subject to conditions, including that he surrender his passports and limit his travel to the District of Nevada, unless approved by Pretrial Services. Docket No. 12 at 3; see also Hearing Rec. (7/21/2022) at 4:04 p.m.

On February 1, 2024, the parties filed a stipulation to modify the terms of Defendant's release. Docket No. 47; see also Docket No. 49 (corrected image). Defendant sought therein to reobtain his passports and to be allowed to travel internationally to visit his mother in Nigeria and to attend to “business interests” in the Democratic Republic of Congo. Docket No. 49 at 2. The request indicated that there is now need for that travel since the parties recently stipulated to continue trial, such that the pretrial period has lasted longer than the parties anticipated. See id. at 2. The request indicated that sufficient justification exists to assuage concerns as to Defendant's flight risk because he has complied with his pretrial conditions to date. See id.

On February 6, 2024, the Court held a hearing and denied the stipulation without prejudice. See Docket Nos. 50, 51. The Court identified a number of concerns, including that Defendant's mother's condition was not meaningfully described, Defendant's Congolese business interests were vaguely described and were not identified in the earlier Pretrial Services report, and no explanation had been provided as to why compliance with pretrial conditions constitutes a basis to modify those same conditions, rather than being viewed as showing that the conditions have been effective to date. Docket No. 51 at 1-2.

On May 2, 2024, Defendant filed a joint motion with the Government again seeking to modify his travel conditions to allow domestic and international travel. Docket No. 52.¹ The joint motion indicates that Defendant has complied with his pretrial conditions to date, including appearing for the prior hearing. Id. at 3. The joint motion indicates that Defendant would like to visit his mother because she is “approximately” 86 years of age and that she has “hypertension, diabetes, and glaucoma.” Id. at 6. The joint motion also indicates that Defendant would like “the opportunity to address” potential misappropriation of funds by a business partner for a company that Defendant owns. Id. at 6 n.5.²

Trial is set for July 15, 2024. Docket No. 46.

II. STANDARDS

Pretrial detention decisions are guided by the Bail Reform Act. See 18 U.S.C. § 3142. Where neither release on a full personal recognizance bond nor detention are warranted, the Court is tasked with imposing the least restrictive release conditions that will “reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(c)(1)(B); see also United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). Such restrictions may include, inter alia, limits on travel. 18 U.S.C. § 3142(c)(1)(B)(iv). The factors to be considered in determining whether there are appropriate conditions of release include: (1) the nature and seriousness of the offense charged; (2) the weight of the evidence; (3) the defendant's character, physical and mental condition, family and community ties, past conduct, history relating to drugs and alcohol abuse, and criminal history; and (4) the nature and seriousness of the danger to another person or the community posed by defendant's release. 18 U.S.C. § 3142(g).

Neither the Bail Reform Act nor the Federal Rules of Criminal Procedure establish procedures or standards for modification of pretrial conditions. Instead, the governing provision indicates simply that the Court “may at any time amend the order to impose additional or different conditions of release.” 18 U.S.C. § 3142(c)(3). As the word “may” connotes, the Court is vested with “broad ․ discretionary power” in deciding a motion to modify conditions of pretrial release. See United States v. McGill, 604 F.2d 1252, 1255 (9th Cir. 1979); see also United States v. Cook, 428 F.2d 460, 461 (5th Cir. 1970) (per curiam). Courts have routinely held that a motion to modify conditions of pretrial release amounts to a motion to reopen the detention hearing. See United States v. Phua, No. 2:14-cr-00249-APG-PAL, 2015 WL 127715, at *1-2 (D. Nev. Jan. 8, 2015); see also, e.g., United States v. Gay, No. 4:20-cr-40026-JES-JEH, 2020 WL 5983880, at *3 (C.D. Ill. Oct. 7, 2020) (collecting cases from within the Ninth Circuit). Hence, a motion to modify conditions of pretrial release is subject to a threshold requirement of showing that “new information exists that was not previously known or presented at the detention hearing.” Phua, 2015 WL 127715, at *2; see also 18 U.S.C. § 3142(f).³ Indeed, a different approach would lead to absurd results, including that “a [d]efendant could file endless petitions to modify his conditions․ Courts do not ordinarily allow parties to file a motion previously denied over and over again, yet without the threshold showing required in Section 3142(f)(2), nothing in the statute precludes a defendant from doing so․” Gay, 2020 WL 5983880, at *3.

A number of decisions provide further guidance regarding evaluation of motions to modify conditions of pretrial release. Case law abounds that a defendant's compliance with the current conditions of pretrial release is not in and of itself grounds to modify those conditions:

It is presumed that the defendant will abide by the conditions imposed and his demonstrated ability to do so is what allows him to remain on pretrial release. The fact that Defendant has complied with his conditions of release is what allows him to remain out of custody and is not new information that has a material bearing on his conditions to reopen the detention hearing.

United States v. Kube, No. 1:19-cr-00257-NONE-SKO, 2020 WL 1984178, at *5 (E.D. Cal. Apr. 27, 2020) (citing United States v. Hare, 873 F.2d 796, 799 (5th Cir. 1989)); see also United States v. Esposito, 354 F. Supp. 3d 354, 360-61 (S.D.N.Y. 2019); United States v. Ross, No. 3:23-c4-128-TAV-JEM, 2024 WL 1890087, at *4 (E.D. Tenn. Apr. 30, 2024); United States v. Chambers, No. 23-20009-DDC, 2023 WL 8254523, at *2 (D. Kan. Nov. 29, 2023); United States v. Johnson, No. 2:21-cr-00707-WJM, 2022 WL 375319, at *2 (D.N.J. Feb. 8, 2022); Gay, 2020 WL 5983880, at *3; United States v. Anderson, No. 18 CR 50034-1, 2020 WL 3545619, at *3 (N.D. Ill. June 30, 2020).⁴ It is also axiomatic that the emergence of a circumstance giving rise to a desire to modify conditions is not new information material to the release conditions regarding flight or dangerousness. See Phua, 2015 WL 127715, at *2 (rejecting new information consisting of a desire for more places to shop, eat, attend shows, and play poker); see also Ross, 2024 WL 1890087, at *4 (collecting cases that the inconvenience of conditions is not new or material information sufficient to modify those conditions); Johnson, 2022 WL 375319, at *3 (the defendant's desire to visit colleges with his daughter was not new or material information sufficient to modify travel conditions). “Of course[,] conditions will impact a defendant's ability to engage in activities ․ that is why the Bail Reform Act requires that any conditions imposed be the ‘least restrictive’ to achieve the purposes of the conditions.” Gay, 2020 WL 5983880, at *3. Moreover, the new information presented must not have been known or readily available to the defendant at the time of the detention hearing. See, e.g., United States v. Smith, No. CR-12-1298-PHX-GMS (ECV), 2012 WL 3776868, at *4 (D. Ariz. Aug. 31, 2012); see also United States v. Peguero, No. 3:21-cr-00010-RGJ-3, 2021 WL 4811315, at *3 (W.D. Ky. Oct. 14, 2021) (that the defendant had an elderly parent in declining health was not new information for purposes of modifying pretrial conditions).

III. ANALYSIS

Before turning to the merits of the joint motion, the Court notes that the request essentially includes two components: (1) removing domestic travel restrictions and (2) allowing Defendant to reobtain his passports and travel internationally. See Docket No. 52 at 9.⁵ With respect to the former aspect of the joint motion, the Court is mindful that Defendant is already allowed to travel domestically so long as he obtains advance approval from Pretrial Services. See Docket No. 12 at 3; see also Hearing Rec. (7/21/2022) at 4:04 p.m. The Court has been provided no meaningfully developed argument as to why there is any reason to modify the domestic travel condition as currently written, so the Court declines to address that issue. Kor Media Grp., LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013).

Turning to the request for modification to enable international travel, the joint motion seeking significant modification of pretrial conditions is predicated on the assertion that Defendant has complied with his pretrial conditions to date. Docket No. 52 at 3.⁶ Moreover, Defendant explains that he seeks modification of his pretrial conditions because he would like to visit his elderly mother. Id. at 6. The Court is not persuaded that modification of pretrial conditions is warranted based on those representations.

As explained above, a threshold requirement in seeking to modify conditions of pretrial release is the presentation of new facts pertinent to conditions regarding flight or dangerousness. The record does indeed demonstrate that Defendant has not violated his pretrial release conditions, e.g., Docket No. 52 at 2, which is what allows Defendant to remain on pretrial release, but that circumstance does not show that the conditions in place are not the least restrictive that can be fashioned to address flight risk. Although it may militate in favor of modification that the United States Attorney's Office joins in the pending request,⁷ the Court is not persuaded that its acquiescence justifies allowing Defendant the very significant modification of allowing international travel in the weeks leading up to his trial.

The Court also notes Defendant's assertions that the current travel restrictions render it impossible for him to visit his elderly mother.⁸ The Court is sympathetic to Defendant's desire to visit his mother, but the Court has already determined that the current travel prohibitions are the “least restrictive” to address risk of flight. It is an unfortunate, but inevitable, reality that those necessary restrictions may limit the activities in which Defendant wants to engage. At bottom, the fact that a defendant does not want to be bound by the existing restrictions does not change that those restrictions are necessary.

IV. CONCLUSION

For the reasons discussed above, the joint motion to modify Defendant's conditions of pretrial release is DENIED without prejudice.

IT IS SO ORDERED.

FOOTNOTES

1.   Defendant's Pretrial Services Officer takes no position on the joint motion. See Docket No. 52 at 2.

2.   Although Defendant now disclaims any interest in traveling to Congo, Docket No. 52 at 5 n.4, the joint motion does not identify where Defendant would travel to address this business issue. From the context in which this assertion is made, it would appear this would happen in Nigeria.

3.   The joint motion relies in part on case law regarding the showing necessary to modify conditions of supervised release. See Docket No. 52 at 3. No meaningful argument is advanced as to why standards governing modification of supervised release conditions would also apply to a request to modify conditions of pretrial release.

4.   Compliance with conditions of release “might” suffice for later modification when the Government and/or Pretrial Services supports that request. See United States v. Martin, No. 1:21-cr-00228-ADA-BAM-1, 2022 WL 17343865, at *4 (E.D. Cal. Nov. 30, 2022) (addressing motion to modify conditions affirmatively supported by the assigned Pretrial Services officer); see also United States v. Lopez, No. 2:16-cr-00265-GMN-CWH-2, 2019 WL 2393609, at *2 (D. Nev. June 5, 2019). Of course, it is ultimately the “judicial officer” who must decide whether to modify conditions, 18 U.S.C. § 3142(c)(3), and the Court is not obligated to adopt the positions taken by the parties or by Pretrial Services, see, e.g., United States v. Kwok Cheung Chow, No. CR 14-00196 CRB, 2014 WL 12909780, at *3 n.3 (N.D. Cal. July 23, 2014); United States v. Landry, CR-13-70716-MAG-1 (KAW), 2013 WL 3762260, at *3 (N.D. Cal. July 16, 2013); see also LCR 45-1.

5.   With respect to the latter, the joint motion explains that Defendant “only seeks permission to travel to Nigeria,” but also seeks the ability to engage in other international travel with the permission of his Pretrial Services Officer. See, e.g., Docket No. 52 at 7.

6.   The Court rejects the suggestion that this modification is not a significant one. See Docket No. 52 at 3 n.2.

7.   As noted above, Defendant's Pretrial Services Officer takes no position on the joint motion. See Docket No. 52 at 2.

8.   The joint motion also explains that Defendant wishes to address a business issue that has arisen, Docket No. 52 at 6 n.5, though the specific travel sought on that issue is not entirely clear. If travel to Nigeria was contemplated for this purpose, the joint motion fails for the same reason as stated herein with respect to the desire to visit Defendant's mother in Nigeria.

NANCY J. KOPPE, UNITED STATES MAGISTRATE JUDGE