United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
24, 2016, a grand jury indicted defendant David Ward Astin on
21 counts of wire fraud. (Docket 1). Defendant allegedly
defrauded approximately half a million dollars from his
victim through a scheme centering on foreign currency
trading. Id. At the time of his indictment,
defendant was in Guatemala, where he had been living since
mid-2014. (Docket 14 at pp. 2-3). He was arrested in Houston,
Texas, upon returning to the United States on October 22,
2018. Id. at p. 3. On November 26, 2018, defendant
made his initial appearance before Magistrate Judge Daneta
Wollmann. (Docket 12). The magistrate judge also held a
detention hearing at that appearance. Id. She found
defendant was a flight risk and ordered him detained pending
trial. (Docket 13).
moved the magistrate judge to reconsider her detention order.
(Docket 14). The magistrate judge denied defendant's
motion in a text order. (Docket 16). He now appeals the
magistrate judge's order denying his motion for
reconsideration, arguing the conditions suggested by United
States Probation Office Pretrial Services are sufficient to
ensure his appearance at future proceedings. (Docket 19). The
government opposes defendant's appeal. (Docket 22). The
transcript of the detention hearing, see Docket 17,
and the parties' briefing is sufficient for the court to
resolve defendant's appeal; the court will not hold a
further hearing on the matter. For the reasons given below,
the court grants defendant's appeal, vacates the
magistrate judge's order, and orders defendant released
pending trial, subject to conditions of release.
defendant may be detained before trial ‘[o]nly if the
government shows by clear and convincing evidence that no
release condition or set of conditions will reasonably assure
the safety of the community and by a preponderance of the
evidence that no condition or set of conditions . . . will
reasonably assure the defendant's appearance . . . .'
” United States v. Abad, 350 F.3d 793, 797
(8th Cir. 2003) (emphasis omitted) (quoting United States
v. Kisling, 334 F.3d 734, 735 (8th Cir. 2003)).
In determining if release conditions exist that will
reasonably assure the appearance of a defendant at trial and
the safety of the community, the court considers the
following: (1) the nature and circumstances of the crime; (2)
the weight of the evidence against the defendant; (3) the
history and characteristics of the defendant, including
mental condition, family ties, employment, community ties,
and past conduct; and (4) the seriousness of the danger to
the community or to an individual.
Id. (citing 18 U.S.C. § 3142(g)).
a person is ordered detained by a magistrate judge . . . .
the person may file, with the court having original
jurisdiction over the offense, a motion for revocation or
amendment of the order. The motion shall be determined
promptly.” 18 U.S.C. § 3145(b). “When the
district court acts on a motion to revoke or amend a
magistrate's pretrial detention order, the district court
acts de novo and must make an independent
determination of the proper pretrial detention or conditions
for release.” United States v. Rueben, 974
F.2d 580, 585 (5th Cir. 1992).
parties have primarily contested whether there are any
conditions which would assure defendant's appearance in
court, given his ties to Guatemala. Resolving this question
requires the court to first determine whether defendant is
likely not to appear and then to determine whether any
conditions exist which would assure his appearance. The
parties presented little or no evidence regarding “the
weight of the evidence against the [defendant]” or
“the seriousness of the danger” he may pose to
“the community” or to an individual in either the
detention hearing before the magistrate judge or in their
briefing here. 18 U.S.C. §§ 3142(g)(2), (4).
The court concludes these two factors do not weigh in favor
of detaining defendant and will instead turn to the other two
factors it must consider: the nature of the charged offense
and defendant's history and characteristics. Id.
at §§ 3142(g)(1), (3). The court finds these
factors establish defendant is a flight risk but do not
establish, by a preponderance of the evidence, that there is
no set of conditions which will assure defendant's
appearance in future proceedings. Abad, 350 F.3d at
Nature of the charged offense
is charged with 21 counts of wire fraud in violation of 18
U.S.C. § 1343. The maximum penalty for each count is 20
years of incarceration. 18 U.S.C. § 1343. The magistrate
judge correctly noted defendant's total exposure to
imprisonment exceeded 400 years. (Docket 17 at p. 37). She