1. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 1 of 14 PageID #: 128 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, ) MAG. NO. 13-00207 LEK-RLP ) Plaintiff, ) ) vs. ) ) BENJAMIN PIERCE BISHOP, ) ) Defendant. ) _____________________________ ) ORDER GRANTING MOTION TO REVOKE MAGISTRATE JUDGE’S DETENTION ORDER, FILED MARCH 27, 2013 Before the Court is Defendant Benjamin Bishop’s (“Defendant”) Motion to Revoke Magistrate Judge’s Detention Order, filed March 27, 2013 (“Motion”). Plaintiff United States of America (“the Government”) filed its memorandum in opposition on March 28, 2013. This matter came on for hearing on March 28, 2013. Appearing on behalf of the Government was Assistant United States Attorney Kenneth M. Sorenson, and appearing on behalf of Defendant was Birney B. Bervar, Esq. Defendant was present in custody. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendant’s Motion is HEREBY GRANTED because the Court concludes that there is a combination of release conditions that can be imposed to address the risk of flight, and the safety of any person and the community.
2. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 2 of 14 PageID #: 129 BACKGROUND Defendant was arrested on March 15, 2013, pursuant to a sealed criminal complaint filed by the Government on March 14, 2013. [Dkt. nos. 1, 10.] On March 18, 2013, he made his initial court appearance and was appointed legal counsel to represent him. The Government, on that same date, filed its Motion to Detain Defendant Without Bail. [Dkt. no. 4.] A hearing on the Government’s detention motion was scheduled for March 22, 2013, and Defendant was placed in custody. On March 19, 2013, the criminal complaint was unsealed. [Dkt. no. 9.] In the complaint, Defendant is charged with two counts: Count I - Communication of Information Related to the National Defense to a Person Not Entitled to Receive It, in violation of 18 U.S.C. § 793(e); and Count II - Unlawful Retention of Document and Plans Relating to the National Defense, in violation of 18 U.S.C. § 793(e). [Dkt. no. 1.] The detention hearing was held on March 22, 2013, during which further information was requested by the magistrate judge and the hearing was continued to March 25, 2013. [Dkt. no. 11.] At the second detention hearing, the Government provided documents for the magistrate judge to review in camera. The detention motion was thereafter granted and Defendant was ordered detained. On March 27, 2013, the magistrate judge issued his Detention Order Pending Trial in which he concluded that
3. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 3 of 14 PageID #: 130 Defendant must be detained because the testimony and information submitted at the hearing established by “clear and convincing evidence” that “[t]here is a serious risk that the defendant will endanger the safety of another person or the community.” [Dkt. no. 14.] Defendant filed his appeal of this detention order that same day. [Dkt. no. 15.] In the instant Motion, Defendant argues that the Government originally sought detention because of three reasons: “(1) Serious risk defendant will flee; (2) Danger to other person or community; and (3) Serious risk obstruction of justice”. [Mem. in Supp. of Motion at 1.] He submits that the magistrate judge found that Defendant did not pose a flight risk, questioned whether any danger to the community or of obstruction of justice existed because Defendant did not have access to any classified information, and gave the Government additional time to provide evidence of Defendant’s dangerousness. Defendant contends that, unless he is charged with one of the offenses enumerated in 18 U.S.C. § 3142(f), the Government cannot seek his detention unless it can first demonstrate that there is a serious risk he will flee or attempt to obstruct justice. Further, Defendant argues, pretrial detention is not authorized solely on proof of danger to the community and the danger alleged by the Government, that he could disclose classified information from memory, is unsupported by legal authority. [Id. at 3.] The Government, on the other hand, contends that at the
4. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 4 of 14 PageID #: 131 detention hearing on March 22, 2013, the magistrate judge did not address the Government’s argument that Defendant is a flight risk, but instead focused on the Government’s assertion that, if released, Defendant posed a danger to the community because he “could easily recollect and communicate national defense information.” [Mem. in Opp. at 3.] As a result, the magistrate judge gave the Government until March 25, 2013 to submit additional information, and “asked the parties to address the case of United States v. Wen Ho Lee, 79 F. Supp. 2d 1280 (D. N.M. 1999), where the district court found the defendant was a danger to the community and ordered him detained because classified computer tapes that had been under his control were missing.” [Id. at 3-4.] The Government argues that Defendant is a serious flight risk because (1) he is charged with serious crimes involving communicating national defense information to a foreign national and removing classified information from the United States Pacific Command, partly at the direction of his girlfriend, who is a foreign national; (2) there is substantial evidence against him because he has admitted to agents that he disclosed classified information to his girlfriend, classified materials were recovered from his residence and computer, and the Government has direct evidence of Defendant’s email and telephone communications with his girlfriend; (3) his character is questionable because, at the time of the alleged offense, he had a top level security clearance and was obligated to report all
5. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 5 of 14 PageID #: 132 contacts with foreign nationals, but instead engaged in an extramarital affair with a foreign national, deceived his employers about this relationship, lied to agents in a statement given after his arrest regarding this relationship, and disregarded security oaths he took and non-disclosure agreements he signed regarding classified national defense information, including by failing to report his arrest for soliciting a prostitute in Honolulu in 2003; and (4) he is a world traveler and speaks a foreign language. In short, the Government submits, Defendant has the motivation, experience, resources and ability to leave the United States. [Id. at 5-8.] In addition, the Government is highly critical of the proposed third party custodian and argues that Defendant’s advanced age and vacation plans to be in Norway for three weeks in April 2013 do not lend assurance that Defendant will not flee or communicate classified information while on pretrial release. It argues that Defendant also presents a danger to the community because of the information that he knows about cyber defense technologies for use within the U.S. Pacific Command theater of operations and Department of Defense.1 Defendant has held top level security clearance since 2003 and “has the ready ability to recall and disclose sensitive national security information which 1 In support, the Government provided the declaration of Major General Anthony Crutchfield, Chief of Staff, U.S. Pacific Command (“Crutchfield Decl.”). [Mem. in Opp., Exh. A.] The Government also provided a substantial number of documents for this Court’s in camera review prior to the hearing.
6. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 6 of 14 PageID #: 133 will long survive his loss of access.” [Mem. in Opp., Attachment A (Government’s Supplemental Submission of Materials and Argument in Support of Detention), at 2 (citing Crutchfield Decl.).] If released, the Government argues, Defendant will be able to “‘refresh his recollection’ with material provided to him for his defense.” [Id. at 6.] Finally, the Government submits that conditions of release such as a third-party custodian and electronic monitoring are woefully inadequate to address the danger to the community because Defendant has a history of disregarding security oaths and obligations, and these conditions cannot guard against “digital age” threats of undetected communication via secret email, Facebook and Twitter accounts, or disposable cell phones. [Id.] STANDARD A magistrate judge’s order under 18 U.S.C. § 3142(e) is reviewed de novo. United States v. Eischeid, 315 F. Supp. 2d 1033, 1035 (D. Ariz. 2003)(citing United States v. Koenig, 912 F.2d 1190, 1192-93 (9th Cir. 1990). “The court must ‘review the evidence before the magistrate [judge]’ and any additional evidence submitted by the parties, ‘and make its own independent determination whether the magistrate [judge’s] findings are correct, with no deference.’” Id. (quoting Koenig, 912 F.2d at 1193.)
7. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 7 of 14 PageID #: 134 DISCUSSION The Bail Reform Act of 1984 sets out the procedure for pre-trial release and detention. It generally favors the pretrial release of defendants on personal recognizance or unsecured appearance bond, unless the Court determines “that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.” 18 U.S.C. § 3142(b). A detention hearing can only be held under certain circumstances. Section 3142(f) provides, in material part, as follows: (f) Detention hearing. The judicial officer shall hold a hearing to determine whether any condition or combination of conditions set forth in subsection (c) of this section will reasonably assure the appearance of the such person as required and the safety of any other person and the community - (1) upon motion by the attorney for the Government in a case that involves - (A) a crime of violence . . .; (B) an offense for which the maximum sentence is life imprisonment or death; (C) an offense for which a maximum term of imprisonment of ten years or more is prescribed in the Controlled Substances Act . . .; (D) any felony if such person has been convicted of two or more offenses described in subparagraphs (A) through (C) of this paragraph, or two or more State of local offenses that would have been defenses described in subparagraphs (A) through (C) of this paragraph if a circumstance giving rise
8. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 8 of 14 PageID #: 135 to Federal jurisdiction had existed, or a combination of such offenses; or (E) any felony that is not otherwise a crime of violence that involves a minor victim or that involves the possession or use of a firearm or destructive device (as those terms are defined in section 921), or any other dangerous weapon, or involves a failure to register under section 2250 of title 18, United States Code; or (2) Upon motion of the attorney for the Government or upon the judicial officer’s own motion, in a case that involves - (A) a serious risk that such person will flee; or (B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. 18 U.S.C. § 3142(f)(1)-(2). Here, pursuant to Section 3142(f)(2)(A), the Government filed the motion to detain on the basis that Defendant is a serious flight risk. The Government is not seeking detention pursuant to any provision of Section 3142(f)(1). This is a distinction with particular significance, as Congress clearly defined a group of defendants for which “a rebuttable presumption arises that no condition or combination of conditions [of release] will reasonably assure the safety of any other person and the community . . . .” 18 U.S.C. § 3142(e)(2). The Government concedes that Defendant does not fall within this category.
9. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 9 of 14 PageID #: 136 Thus, this Court starts its analysis with the mandate that a judge “shall order the pretrial release” of a defendant on personal recognizance or unsecured appearance bond unless this release “will endanger the safety of any other person or the community” or “will not reasonably assure” the defendant’s appearance. 18 U.S.C. § 3142(b). If the Court finds that such release is not appropriate, then pretrial release shall be ordered “subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines 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). After a hearing is held, should the Court “find that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community[,]” then it must order detention. 18 U.S.C. § 3142(e). Section 3142(g) sets forth the factors that the Court must consider to determine whether conditions can be fashioned to assure that Defendant appears as required, and address the safety of any other person and the community. 18 U.S.C. § 3142(g). The Court examines each in turn: The first factor is the nature and circumstances of the offense charged. 18 U.S.C. § 3142(g)(1). This factor weighs in favor of release. Admittedly, the offenses in the criminal complaint are serious, but the same can be said of all felony
10. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 10 of 14 PageID #: 137 charges. Even for certain types of charges that may be repugnant (e.g., child pornography or human trafficking) or notorious (e.g., corruption or bribery), there are reasonable conditions of release that can be fashioned. The same holds true for Defendant, even in light of the nature and circumstances of the specific offenses alleged against him. The second factor is the weight of the evidence against Defendant. 18 U.S.C. § 3142(g)(2). In Defendant’s case, this factor is essentially married to the dangerousness factor and does weigh in favor of detention. Based upon the Government’s representations, the weight of the evidence is substantial. Defendant has apparently given statements that the Government has described as admissions, and inculpatory documents were found in Defendant’s home and on his computer. The third factor is Defendant’s history and characteristics, which include character, length of residence in the community, drug or alcohol abuse history, criminal history, and community ties. 18 U.S.C. § 3142(g)(3). This factor weighs largely in favor of release. Based upon the Government’s representations about Defendant’s admission that he violated his security oaths and non-disclosure agreements, the Court concludes Defendant’s character is such that he is unlikely to comply with conditions of release that rely exclusively on his cooperation. In light of Defendant’s history, however, the Court believes that conditions of release can be fashioned. Defendant has resided in
11. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 11 of 14 PageID #: 138 this community for a significant period of time, he owns a residence in Hawai`i, he has substantial community ties through his church, and he does not have a history of substance abuse, mental illness, violence, or significant criminal arrests and convictions.2 The fourth and final factor is the nature and seriousness of the danger to any other person or the community that would be posed by Defendant’s release. 18 U.S.C. § 3142(g)(4). The Government argues that Defendant’s extensive knowledge of classified national defense information places public security at risk. [Mem. in Opp., Attachment A, at 4 (“Nothing short of the security of the Pacific, and U.S. Forces in the Pacific, are placed at risk by the nature of the information known to this defendant.”) (citing Crutchfield Decl. at 4-7).] As such, the Government concludes, “there are no conditions that can reasonably assure this Court that he will abide by his security oaths, or by the Court’s conditions.” [Id. at 5.] This factor weighs entirely in favor of detention, as the risk to the community is both substantial and extremely serious. The Bail Reform Act does not, however, “[authorize] pretrial detention without bail based solely on a finding of dangerousness.” United States v. Twine, 344 F.3d 987, 987 (9th Cir. 2003)(citing United States v. Byrd, 969 F.2d 106, 110 (5th 2 Defendant’s criminal history appears to be limited to one conviction for solicitation of prostitution.
12. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 12 of 14 PageID #: 139 Cir. 1988) (“There is no doubt that the Act places a risk on society: a defendant who clearly may pose a danger to society cannot be detained on that basis alone. In such instances, the Act requires that society’s interest be safeguarded only by a set of conditions imposed on his release.”); United States v. Ploof, 851 F.2d 7, 11 (1st Cir. 1988)(“We believe, however, the structure of the statute and its legislative history make it clear that Congress did not intend to authorize preventive detention unless the judicial officer first finds that one of the § 3142(f) conditions for holding a detention hearing exists.”); United States v. Himler, 797 F.2d 156 (3d Cir. 1986)). None of the § 3142(f) conditions are present here. Preventative detention therefore is inappropriate, unless the Court finds that there are no conditions of release can be imposed that reasonably address both flight risk and the danger to any other person and the community. This Court does not so find. It finds instead that conditions which reasonably address both flight risk and dangerousness do exist. While the Government is correct that only detention can guarantee that Defendant will neither flee nor communicate his knowledge of national security matters in a harmful manner (particularly in light of the fact that the Government has instructed the Federal Detention Center in Honolulu to isolate Defendant in the Special Holding Unit), the charges that the Government has chosen to bring requires only that the Court find that there are release
13. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 13 of 14 PageID #: 140 conditions that reasonably address flight risk and danger. The Court finds that placing Defendant in Mahoney Hale, a community detention facility, with restrictive conditions will reasonably address the risk of non-appearance and danger to any other person and the community. These restrictive conditions shall include, but not be limited to, the conditions that he shall not leave the premises without being accompanied by his third-party custodian or his attorney, that he shall leave the facility for limited purposes only (such as religious worship and participating in his legal defense), that he shall not have access to communication by the internet, that he shall be allowed only monitored communication with others via telephone and traditional mail, and that he shall be subject to other appropriate conditions. CONCLUSION For the foregoing reasons, Defendant’s Motion to Revoke Magistrate Judge’s Detention Order, filed March 27, 2013, is hereby GRANTED. As there is a waiting list for placement at Mahoney Hale, Pretrial Services is directed to place Defendant on the wait list. Once bed space is available for Defendant, the Court will hold a pre-release hearing to address the reasonable conditions of release that will be imposed to address the risk of non-appearance and danger to any other person and the community. IT IS SO ORDERED.
14. Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 14 of 14 PageID #: 141 DATED AT HONOLULU, HAWAII, April 22, 2013. /S/ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge USA V. BENJAMIN PIERCE BISHOP; MAG. NO. 13-00207 LEK-RLP; ORDER GRANTING MOTION TO REVOKE MAGISTRATE JUDGE’S DETENTION ORDER, FILED MARCH 27, 2013