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United States v. Astin

United States District Court, D. South Dakota, Western Division

February 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID WARD ASTIN, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         On May 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).

         Defendant 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.

         ANALYSIS

         I. Legal Standards

         “A 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)).

         “If 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.”[1] 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).

         II. Discussion

         The 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.[2] 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 797.

         A. Nature of the charged offense

         Defendant 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 ...


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