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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided August 3, 2011
No. 11-3046
UNITED STATES OF AMERICA,
APPELLEE
v.
ONUOHA NWOKORO, ALSO KNOWN AS IGGY,
APPELLANT
On Appeal of a Pretrial Detention Order
(No. 1:11-cr-00104)
A. J. Kramer, Federal Public Defender, and Mary M.
Petras, Assistant Federal Public Defender, were on appellant’s
Memoranda of Law and Fact.
Frank P. Cihlar, Gregory Victor Davis, and Alexander P.
Robbins, Attorneys, U.S. Department of Justice, were on
appellee’s Memorandum of Law and Fact.
Before: GINSBURG, ROGERS, and BROWN, Circuit Judges.
2
PER CURIAM: Appellant Onuoha Nwokoro appeals the
decision of the district court to detain him prior to trial. He
seeks reversal so that he will be immediately released on his
personal recognizance. Consistent with the requirements of the
Bail Reform Act, 18 U.S.C. § 3142, we conclude that a limited
remand, not reversal, is necessary.
The Bail Reform Act requires that a pretrial detention order
“include written findings of fact and a written statement of the
reasons for the detention.” 18 U.S.C. § 3142(i)(1). There is no
such order here. In United States v. Peralta, 849 F.2d 625 (D.C.
Cir. 1988) (per curiam), however, the court held,
notwithstanding “the mandatory nature of section 3142(i) and
Rule 9 [of the Federal Rules of Appellate Procedure],” that “the
transcription of a detention hearing, if it evinces a clear and
legally sufficient basis for the court’s determination, will satisfy
the requirements of section 3142(i),” id. at 626.1 The transcript
of the detention hearing does not meet this standard, see United
States v. Simpkins, 826 F.2d 94, 97 (D.C. Cir. 1987), for it fails
to demonstrate that the district court considered all of the
statutory factors and made a reasoned decision that appellant
constituted a “serious risk”of flight, 18 U.S.C. § 3142(f), and
that no “condition or combination of conditions” could
“reasonably assure” that he would appear for trial, id.
At the pretrial detention hearing, the district court stated,
upon hearing testimony from an Internal Revenue Service agent
and the arguments of the parties’ counsel, that:
1
Rule 9(a) was subsequently amended, in accord with our
decision in Peralta, to provide that the district court must “state in
writing, or orally on the record,” the reasons for releasing or detaining
a defendant in a criminal case. FED. R. APP. P. 9(a).
3
The Court has heard more than enough evidence . . . to
conclude [that appellant] has substantial assets in
Nigeria. The court has heard more than enough
evidence to be convinced that he could take necessary
steps at any time to get portions of those assets to help
him facilitate his leaving this country.
May 10, 2011 Tr. 37:3–8. The district court also stated that:
[Appellant] has moved to Africa. He has moved
hundreds - - well based on the representations I have
heard from the Government and the documents I have
seen here, I have wire transfers totaling over $280,000
and an Agent testified to . . . a million dollars in
receipts in a two-year period [referring to appellant’s
tax preparation services’ gross receipts in 2005
through 2007] .
Id. 37:15–20. The district court further noted that appellant at
the time of his arrest “was going back to Africa.” Id. 38:5.
Finally, the district court stated:
The Court finds that the Defendant is indeed a
substantial flight risk. The Court finds . . . that there
is no combination of conditions that could possibly
protect this Court’s interest in having him appear here
before this Court. . . . The Court finds that he is a flight
risk and that he should be detained pending the
outcome of this case.
Id. 38:9–17.
The question presented by the transcript is whether the
recorded findings, even if not in the form required by the Bail
Reform Act, are sufficient to support the conclusion that
4
appellant’s pretrial detention is necessary in order to assure his
presence at trial. In Simpkins, 826 F.2d 94, the court addressed
the content of the “findings of fact” and “statement of the
reasons for detention,” 18 U.S.C. 3142(i)(1), that a judicial
officer must produce. There, the magistrate judge’s order
stated:
The likelihood of conviction is very high and given the
severe mandatory sentence [the defendant] faces, I
believe the potential to flee, rather than to stand trial,
is probable and therefore also conclude that the pretrial
detention of the defendant is required in order to
assure the safety of the community as well as to
preclude the risk of flight to avoid prosecution for
these charges.
826 F.2d at 97. The court concluded that these findings were
inadequate because they did not address a number of
counterbalancing factors enumerated in 18 U.S.C. § 3142(g),
see id., which both lists relevant factors and mandates that the
“judicial officer shall, . . . take into account the available
information concerning” those factors, 18 U.S.C. § 3142(g)
(emphasis added).
Whether appellant is a “serious” flight risk, 18 U.S.C.
§ 3142(f)(2), is not readily apparent from the district court
record. Other than noting that appellant “has moved to Africa,”
May 10, 2011 Tr. 37:14, and that appellant had transferred
substantial assets to Nigeria and he could possibly take steps to
retrieve those assets, id. 37:3-8, 14, the district court made no
factual findings. Neither did the district court demonstrate that
it considered many of the facts apparent from the record before
it.
5
For example, the district court did not mention any of the
facts favoring appellant’s pretrial release. When given the
opportunity to flee the area, appellant has not. He does not
presently have assets under his control in the United States (his
bank account in the United States has been frozen), and he does
not have possession of his U.S. or Nigerian passports (which are
in government custody)2 with which to leave this country, much
less to enter Nigeria. He has never failed to appear in court
when notified, and he has never failed to check in with the
Pretrial Services Agency as he was previously required to do on
a weekly basis. Indeed, after the magistrate judge dismissed the
initial criminal complaint against him, appellant made no
apparent attempt to flee prior to his arrest on a new indictment
five days later. Appellant was released on his own
recognizance two days later and again made no apparent
attempt to flee between then and the detention hearing four
weeks later. Appellant is not charged with a violent offense,
and he has no prior criminal record.
The district court similarly failed to explain what weight (if
any) it accorded facts favoring pretrial detention. It is apparent
from the district court record that appellant currently has
negligible ties to the District of Columbia area community: he
has no job other than his work at the homeless shelter and
occasional day labor jobs. Although appellant is a naturalized
U.S. citizen — he came to the United States in 1982, obtained
a college degree from a U.S. college, married, had four children,
and lived and worked in the Washington, D.C. area for more
2
The government seized appellant’s Nigerian passport, which
was on his person at the time of his arrest. Appellant voluntarily sent
his U.S. passport to the U.S. State Department for renewal prior to his
arrest. The government has since confirmed that appellant’s U.S.
passport is in its custody and that a criminal hold has been placed on
reissuance of the passport.
6
than twenty years, establishing a tax preparation business at one
time, and his wife and children continue to live in the area — he
now has no home here other than the homeless shelter. Neither
does he apparently have any family or friends who have
indicated an interest in posting bond for him or allowing him to
live with them in this area. And there is evidence that appellant
has substantial connections to Nigeria, by virtue of birth and the
transfer of funds over the course of three years, ending in 2007.
Neither did the district court mention the strength or weakness
of the government’s evidence that appellant allegedly aided and
assisted in the preparation of false tax returns. Nor did the
district court credit or reject the government’s argument that the
sophisticated nature of appellant’s alleged crimes made him less
likely to return for trial to face the charges against him.
At this point the district court’s reasoning is terse and
conclusory, and its factual findings regarding appellant’s
resources in Nigeria, his ability to retrieve those resources, and
his ability to leave the United States appear in part to be without
foundation in the record. Moreover, unlike the non-U.S. citizen
defendant in United States v. Xulam, 84 F.3d 441, 444 (D.C.
Cir. 1996), whom this court ordered released pretrial, appellant
is not charged with forging a passport or otherwise shown to
have forgery skills, much less resources within the United
States, giving him the unique ability to leave the United States.
Insofar as the government’s memorandum on appeal addresses
the strength of the government’s evidence against appellant, it
only states in a footnote that the charges against appellant
concern fictitious business losses that he allegedly “placed” on
certain of his clients’ tax returns. Appellee’s Mem. of Law and
Fact at 11 n.5.
Together these circumstances indicate that the district court
failed to make the required assessment with respect to release
or detention, and to adequately memorialize its determination in
7
the form of written or oral on-the-record “findings of fact and
a [] statement of the reasons for the detention,” 18 U.S.C.
§ 3142(i)(1); supra note 1. Its factual finding and reasoning are
insufficient to demonstrate that it considered all information
available concerning the statutory factors and made a reasoned
decision that appellant constituted a “serious risk” of flight, 18
U.S.C. § 3142(f), and that no “condition or combination of
conditions” could “reasonably assure” it that he would appear
for trial, id. Consequently, this court is not apprised of why the
district court concluded on the record before it that the
government had met its burden that appellant presented a
“serious” risk that he would flee prior to trial, id.
§ 3142(f)(2)(A), or its burden of proving that no condition or
combination of conditions could reasonably assure the
appearance of appellant at trial, id. § 3142(e)(1).
Because the district court has failed to conform to the
requirements of the Bail Reform Act, 18 U.S.C. § 3142(g),
(i)(1), we must remand the case for the district court to consider
all the relevant facts and to prepare, in an expeditious manner,
findings of fact and a statement of reasons in support of
appellant’s pretrial detention pursuant to the Bail Reform Act,
or otherwise to order appellant’s pretrial release subject to
appropriate conditions.