Opinion
CR-22-00893-002-TUC-JCH (BGM)
10-26-2022
United States of America, Plaintiff, v. Whitney Adams, Defendant.
ORDER
JOHN C. HINDERAKER UNITED STATES DISTRICT JUDGE
Before the Court are two pending motions: (1) Defendant's Motion to Review Detention Order ("Defendant's Motion") (Doc. 39); and (2) the Government's Motion to Vacate Hearing and Reset Before District Judge ("Government's Motion") (Doc. 41). For the following reasons, the Court denies Defendant's Motion and denies as moot the Government's Motion.
I. BACKGROUND
A. Indictment
By superseding Indictment, the Government charged co-Defendants Whitney Adams and Flavia Annang with Conspiracy to Commit Money Laundering in violation of 18 U.S.C. § 1956(h). (Doc. 20.) According to the facts alleged in the criminal Complaint, (Doc. 3), Defendant and her co-defendant/mother laundered fraud proceeds victims in the United States to individuals in Ghana. (Doc. 3.) Over a four-year period approximately $4 million in fraud proceeds passed through accounts controlled by the co-defendants. (Id.) Further, Defendants "devised fraudulent businesses, set up bank accounts for purely fraudulent purposes, and lied to bank employees and an undercover agent[.]" (Id. at p. 2 ¶¶ 1, 6; p. 3 ¶¶ 4-6.) A jury trial is set for December 28, 2022. (Doc. 38.)
B. Procedural Background
On April 13, 2022, the Federal Bureau of Investigations executed an Arrest Warrant on Defendant Whitney Adams ("Defendant") in Hagerstown, Maryland. (Doc. 16.) On April 13, 2022, Defendant appeared for her Initial Appearance in the District Court of Maryland and was ordered temporarily detained. See United States of America v. Whitney Adams, 1:22-MJ-01123-MJM, Docs. 2, 4 (D. Md. April 13, 2022). On April 18, 2022, United States Magistrate Judge Matthew J. Maddox held a Detention Hearing and ordered Defendant detained pending trial. United States of America v. Whitney Adams, 1:22-MJ-01123-MJM, Docs. 6, 8, 10 (D. Md. April 18, 2022) ("Detention Hearing"). Judge Maddox found, "by a preponderance of the evidence, from the information produced at the hearing that there is a serious risk the defendant will not appear." Id. at Doc. 8. Judge Maddox also found: "[i]n addition to the reasons and findings made at the hearing the defendant has significant foreign ties and there is evidence of fraudulent conduct and international transfers of significant sums of fraud proceeds." Id.
On April 28, 2022, Defendant appeared for her Initial Appearance before Arizona Magistrate Judge Eric J. Markovich. (See Minute Entry, Doc. 17.) In the interim, Pretrial Services recommended Defendant's continued detention. (Pretrial Services Report ("PTSR"), Doc. 13 ("the defendant poses a risk of nonappearance based on her travel and strong familial ties to Ghana, lack of verifiable employment, lack of housing, and suicidal ideation as noted by the defendant's sister.")) Judge Markovich affirmed the Detention Order. (See Minute Entry, Doc. 17.)
On September 22, 2022, five months after the Detention Hearing in Maryland, Defendant filed the instant Motion. (Doc. 39.) On the same date, Judge Macdonald- presumably treating Defendant's Motion as a motion to reopen her detention hearing under 18 U.S.C. § 3142(f)-set and later vacated a hearing on Defendant's Motion. (Doc. 40.)
This Court conferred with Judge Macdonald's Chambers as the procedural posture, requested relief, and jurisdiction were not immediately known from Defendant's Motion. On October 24, 2022, Judge Macdonald vacated sua sponte the hearing set for October 25, 2022. (See Doc. 43.) Having reviewed the briefings, this Court finds these matters appropriate for resolution without hearing. As such, this Court denies as moot the Government's Motion. (Doc. 41.)
II. JURISDICTION
Under § 3145(a) it is the district court where prosecution is pending, not where the arrest occurred, that can review a magistrate's order. United States v. Evans, 62 F.3d 123334 (9th Cir. 1995) (holding that review of a magistrate's detention decision in the arresting district is to be made by the district court judge of the charging district). Here, Defendant moves to review Judge Maddox's Detention Order. (See Doc. 39.) Because the assigned district judge is the only court with authority to review a magistrate judge's release or detention order, this Court has jurisdiction. See United States v. Cisneros, 328 F.3d 610 (10th Cir. 2003) (finding it was error to permit a magistrate judge in the court of original jurisdiction to review the release order issued by a magistrate judge in the arresting district because an appeal from release order "should be considered and ruled upon in the first instance by a district judge in the court of original jurisdiction[.]") Furthermore, this Court will treat Defendant's Motion as an appeal from Judge Maddox's detention order.
Defendant's "Motion for Review of Detention Hearing" invokes 18 U.S.C. § 3145(b) and does not explicitly invoke 18 U.S.C. § 3145(c) ("Appeal from a release or detention order"). (See Doc. 39.)
III. TIMELINESS
Defendant brings her Motion five months after both the Detention Hearing held before Judge Maddox and the Initial Appearance held before Judge Markovich despite her indication that she would seek review back in April 2022. (See Minute Entry at Doc. 17) ("Government counsel argues that the defendant was already ordered detained in the transferring district upon arrest. Defense counsel would like to re-urge the detention hearing but submits the matter today. Detention Hearing submitted. Defendant ordered detained pending trial.")
Parties have a right to seek review of a magistrate judge's detention or release order. 18 U.S.C. § 3145(a). That right is waived if a party fails to appeal within 14 days. Fed. R. Crim. P. 59; United States v. Tooze, 236 F.R.D. 442, 445-46 (D. Ariz. 2006). Therefore, review by the district court following such a waiver is discretionary and not a matter of right. Tooze, 236 F.R.D. at 446; see also Fed. R. Crim. P. 59, Advisory Committee Notes (2005 Adoption) ("[d]espite the waiver provisions, the district judge retains the authority to review any magistrate judge's decision or recommendation whether or not objections are timely filed.") Here, Defendant's Motion is untimely and this alone is sufficient for its denial. This Court, however, will exercise its discretion to review the appeal.
IV. DETENTION APPEAL
A. Legal Standard
A district court's review of a magistrate judge's detention order is de novo. See United States v. Koenig, 912 F.2d 1190, 1193 (9th Cir. 1990). The Bail Reform Act mandates the release of a person pending trial unless the court concludes that "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person in the community." 18 U.S.C. § 3142(e). It is presumed that there are no such conditions if there is probable cause to believe that the defendant has violated a provision of the Controlled Substances Act or the Controlled Substances Import and Export Act punishable by at least 10 years in prison. 18 U.S.C. § 3142(e)(3)(A). This presumption shifts the burden of production to the defendant, but the burden of persuasion remains with the Government. United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008). If defendant proffers evidence to rebut the presumption of dangerousness or flight risk, the Court then considers four factors in determining whether to detain or release the defendant:
(1) the nature and circumstances of the offense charged...;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including-
(A) the person's character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
(4) the nature and seriousness of the danger to any person or
the community that would be posed by the person's release....(Id.; 18 U.S.C. § 3142(g).)
The Government bears the burden of showing by a preponderance of the evidence that the defendant poses a flight risk. United States v. Gebro, 948 F.2d 1118, 1121 (9th Cir. 1991). A finding that a person presents a danger to the community must be proved by clear and convincing evidence. United States v. Motamedi, 767 F.2d 1403, 1406 (9th Cir. 1985). Any doubts about the propriety of release should be resolved in Defendant's favor. (Id. at 1405.) However, the presumption against release remains, even when rebutted, and is to be considered alongside all other relevant factors. Hir, 517 F.3d at 1086.
B. Analysis
Defendant seeks pretrial release arguing that she lacks a criminal record and is neither a danger to the community nor is she a flight risk. (Doc. 39 at 1.) Defendant does not reference or otherwise challenge Judge Maddox's findings. See id.
i. Nature and Circumstances of the Offense
Defendant is charged with one count of Conspiracy to Commit Money Laundering, a non-violent, non-presumption offense, in violation of 18 U.S.C. § 1956(h). (Doc. 20.) The Court may consider the possible punishment and the incentive to flee associated with a defendant's criminal exposure. See United States v. Townsend, 897 F.2d 989, 995 (9th Cir. 1990). If convicted, Defendant faces a 20-year maximum sentence and deportation under 8 U.S.C. § 1127(a)(2)(B)(iii). (Doc. 42 at 4.) Here, the nature and circumstances of the offense favor detention as the possible punishment provides an incentive to flee. This factor weighs in the Government's favor.
ii. Weight of the Evidence Against Defendant
The weight of the evidence is the least important factor that the Court considers and is not a pretrial determination of guilt. United States v. Motamedi, 767 F.2d 1403, 1408 (9th Cir.1985); Townsend, 897 F.2d at 994. Here, the Government contends that the evidence will likely support conviction as victims, bank employees, and an undercover agent will serve as material witnesses for the Government. (Doc. 42 at 6.) Moreover, Defendant has provided admissions and/or concessions supporting her culpability. (Id.) This factor weighs in the Government's favor.
iii. History and Characteristics of Defendant
Defendant is a 26-year-old female who was born and raised in Ghana (PTSR, Doc. 13 at 2.) In 2016, she obtained legal permanent residency in the United States. (Id.) She has three children: two daughters live with her in the United States and one daughter lives in Ghana. (Id.) Previously, Defendant traveled to Ghana at least once a year to visit her daughter and last traveled there in January 2022. (Id.) Her extended family, and her childrens' fathers, reside in Ghana. (Id.) Defendant has maintained residency in Maryland since her relocation to the United States. (Id.) For three months preceding her arrest she resided in her sister's home with her two daughters, her sister's three children, and her mother (the co-defendant). Defendant receives Maryland state medical insurance and Women, Infant, and Children (WIC) nutritional assistance. (PTSR, Doc. 13 at 3.)
Defendant maintains, and the Government concedes, that she has no criminal history, no reports of non-appearances for court proceedings, and no history of substance abuse. Further, she has forfeited possession over her U.S. passport, and her family is willing to proffer a bond. (Doc. 39 at 2; Doc. 42 at 6.) The Government argues, however, that Defendant's history and characteristics indicate a flight risk supporting detention. (Doc. 42 at 4.) The Government also contends that Defendant is deportable upon a felony conviction, under 8 U.S.C. § 1127(a)(2)(B)(iii), and this is also incentive for Defendant to flee the country.
Also, the Government argues that it is unclear whether Defendant will have suitable housing if she is released because she has not proffered any verifiable housing solutions or potential third-party custodians. Compare Doc. 39 at 2 ("The Court could order [Defendant] to stay in a halfway house until such time as another residence is approved or she has earned enough to secure her own apartment.") with Doc. 42 at 8 ("The government is unaware of any halfway houses that are being suggested or have been vetted in Maryland or Arizona.") Defendant's sister Diana Pinckney ("Pinckney"), who served as a verification source for Pretrial Services, indicated that she cannot serve as a third-party custodian for the Defendant because she is currently serving as the third-party custodian for the co-defendant. (PTSR, Doc. 13 at 2.) In April 2022, Pretrial Services unsuccessfully attempted to contact a second individual, identified by Defendant, for further verification and as a potential third-party custodian. (Id.)
Defendant reported to be in overall good physical health and mental health and lacks a COVID diagnosis or COVID symptoms. (PTSR, Doc. 13 at 3.) Pinckney told Pretrial Services that she had to contact the jail after Defendant stated she was tired and "couldn't take it anymore." (Id.) Pinckney further indicated that Defendant had never expressed any suicidal ideation before her arrest. (Id.) Defendant denies any current mental health condition or suicidal ideation asserting that her comment was a "common expression of exasperation and frustration" but indicates that if released she could partake in counseling "to address her possible depression or disappointment in her situation." (Doc. 39 at 2.)
Defendant reported $3,000 in monthly income from her side business which involves shipping clothes to Ghana. (PTSR, Doc. 13 at 3-4.) Pretrial Services could not verify this source of employment. (Id.) Pinckney confirmed Defendant's unemployment and side business. (Id.) The Government argues that Defendant's unverified employment does not tie her to Maryland or the United States. (Doc. 42 at 6-8.) Moreover, the Government argues that Defendant is a flight risk because she has significant community ties to Ghana, she may have unreported income and/or finances related to her social media persona (Slay Queen), and she has transferred significant sums of fraud proceeds to Ghana. (Id.) According to the Government, Defendant's international travel to the United Arab Emirates and Ghana and her seemingly lavish lifestyle reported by Ghanaian news-sites are inconsistent with her reported unemployment. (Id.)
This factor warrants detention, and the Court finds no reason to depart from Pretrial Service's recommendation for Defendant's continued detention. After nearly five months, Defendant does not proffer any other individuals to verify her employment or prospective housing. Defendant's self-reported finances and income remain vague. (PTSR, Doc. 13 at 3) ("She explained her monthly assets are limited to her bank account with an unknown balance.") According to criminal records, Defendant uses or has used an alternate birthdate which supports the fraudulent conduct alleged. (PTSR, Doc. 13 at 3.) Taken together, Defendant's significant foreign ties, allegations that significant fraud proceeds were transferred to Ghana and may be readily available, the possibility of unreported income, and the possibility of deportation, support an incentive to flee the United States and avoid prosecution. Thus, the Government has shown by a preponderance of the evidence that there is a serious risk the Defendant will not appear.
iv. Dangerous Nature
The Government does not contend that Defendant is a danger to the community.
C. Conditions of Release
A person facing trial is entitled to release under the least restrictive conditions that will reasonably assure the appearance of the person and should only be denied in rare circumstances. Motamedi, 767 F.2d at 1405. Even in the presence of risk, a defendant must still be released if there are conditions of release that may be imposed to mitigate the flight risk or risk to the community. See 18 U.S.C. § 3142(e). Any doubts about the propriety of release should be resolved in Defendant's favor. Motamedi, 767 F.2d at 1405 .
The Government has raised serious concerns underlying Defendant's risk of nonappearance including her international ties, fraud proceeds transferred to Ghana, lack of suitable housing and lack of employment in Maryland. In assessing nonappearance in April 2022, Pretrial Services reported, "There are no conditions or combination of conditions to reasonably assure either the defendant's appearance in court or the safety of the community. Therefore, Pretrial Services respectfully recommends the defendant be detained pending further investigation into a suitable and confirmed residence and transportation." (PTSR, Doc. 13 at 4.) Defendant's Motion has failed to address the concerns shared by Pretrial Services in April. As such, the Court is unconvinced that any condition or combination of conditions will reasonably assure Defendant's appearance.
V. ORDER
IT IS ORDERED DENYING Defendant's Motion to Review Detention Order (Doc. 39) and affirming the detention order; and
IT IS FURTHER ORDERED DENYING AS MOOT the Government's Motion to Vacate Hearing and Reset Before District Judge (Doc. 41).