FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3234
(D.C. No. 6:17-CR-10142-EFM-1)
BOGDANA ALEXANDROVNA (D. Kan.)
MOBLEY,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, LUCERO and MATHESON, Circuit Judges.
_________________________________
Bogdana Alexandrovna Mobley has been charged with international parental
kidnapping in violation of 18 U.S.C. § 1204. She appeals from the district court’s
order affirming the magistrate judge’s pretrial detention order. Exercising
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we remand for further
proceedings.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Mobley is a 36-year-old woman with dual citizenship in Russia and the United
States. She has one child from her first marriage and two children from her second
marriage. In April 2014, in the midst of contentious divorce and custody proceedings
with her second husband, Mobley took her children from Kansas to Russia; at the
time, she was pregnant with their second child together, who was born in Russia.
Mobley lived there with the children for over three years in violation of court orders
issued in her domestic case, which gave her husband joint legal and shared residential
custody pending the dissolution of their marriage. In September 2017, Mobley left
the children with relatives and returned to file child-support paperwork in Kansas,
where she was arrested by the FBI. The children remain in Russia.
At Mobley’s initial appearance before the magistrate judge, the government
moved for detention under 18 U.S.C. § 3142(f)(1)(E) of the Bail Reform Act.1 The
magistrate judge conducted a detention hearing and ordered pretrial detention. The
detention order, which takes the form of a checklist, concludes that the government
proved by a preponderance of the evidence that no condition or combination of
conditions will reasonably assure Mobley’s appearance as required.
Mobley filed a motion to reconsider detention, which referenced “a
comprehensive release plan” under which she would live with her parents in the
United States and surrender her passports to the probation office. Aplt. App. at 15.
1
In previous briefs, the government stated that it also moved for detention
under § 3142(f)(2)(A) and (f)(2)(B), but the magistrate judge’s order does not
reference those provisions.
2
The magistrate judge denied the motion to reconsider, citing the strong weight of the
evidence against Mobley and her failure to convince the court that she is not a flight
risk. Mobley then sought review of the detention order through a motion for
revocation under 18 U.S.C. § 3145(b). The district court held a hearing and orally
affirmed the magistrate judge’s order after finding that Mobley presents a serious
flight risk. Mobley now appeals the detention order.
II. Analysis
The Bail Reform Act, 18 U.S.C. § 3142, sets out the framework for evaluating
whether pretrial detention is appropriate. In general, persons charged with a crime
are not detained pretrial. See id. § 3142(b); see also United States v. Salerno,
481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to
trial or without trial is the carefully limited exception.”). But a defendant may be
detained pending trial if a judicial officer finds 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.” 18 U.S.C. § 3142(e)(1). A judicial
officer may make such a finding only after holding a hearing under § 3142(f). United
States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). The government bears the
burden of proving risk of flight by a preponderance of the evidence and
dangerousness to any other person or the community by clear and convincing
evidence. Id.
Under § 3142(g), the judicial officer must consider four factors as part of the
evaluation: “(1) the nature and circumstances of the offense charged, including
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whether the offense . . . involves a minor victim”; “(2) the weight of the evidence
against the person”; (3) “the history and characteristics of the person”; and (4) “the
nature and seriousness of the danger to any person or the community that would be
posed by the person’s release.” 18 U.S.C. § 3142(g). A detention order must include
“written findings of fact and a written statement of the reasons for the detention,”
id. § 3142(i), but a reviewing district court can state its reasons for detention “in
writing, or orally on the record,” Fed. R. App. P. 9(a). A district court conducts a
de novo review of the magistrate judge’s order. Cisneros, 328 F.3d at 616 n.1.
Mobley opposes the pretrial detention order on three grounds: (1) the
government did not meet its burden to establish that no condition or combination of
conditions could assure her appearance at trial; (2) the district court did not properly
consider the § 3142(g) factors and whether any release conditions could assure
Mobley’s appearance at trial; and (3) the district court failed to consider Mobley’s
statutory affirmative defense that she “was fleeing an incidence or pattern of
domestic violence,” see 18 U.S.C. § 1204(c)(2), when it considered “the weight of
the evidence against” her under § 3142(g)(2).
We review the district court’s ultimate pretrial detention decision de novo
because it presents mixed questions of law and fact. Cisneros, 328 F.3d at 613.
However, we review the underlying findings of fact for clear error. Id. Applying this
standard, we conclude the district court’s ruling was insufficient under § 3142.
The record does not contain a transcript of the initial detention hearing, so we
are unable to assess whether the government met its burden to establish that no
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condition or combination of conditions could assure Mobley’s appearance at trial. It
is clear from the record, though, that neither the magistrate judge nor the district
court provided sufficient findings to justify pretrial detention.
The initial detention order does not adequately address the § 3142(g) factors or
Mobley’s proposed release conditions. The magistrate judge checked a box
indicating that the government proved “[b]y a preponderance of the evidence that no
condition or combination of conditions will reasonably assure the defendant’s
appearance as required,” Aplt. App. at 13, with very little supporting analysis and no
discussion of why the proposed release conditions could not assure Mobley’s
appearance at trial. The order contains only scattered, cursory references to the first
three § 3142(g) factors and does not mention the fourth. See, e.g., id. at 14 (“The
nature of these charges weigh in favor of the Government for purposes of
detention.”) (first factor); id. at 13 (box checked next to “[w]eight of evidence
against the defendant is strong”) (second factor); id. at 14 (“Defendant is alleged to
have fled the jurisdiction of a competent court. As the Court does not have sufficient
information about the Defendant’s background, it is concerned she will also flee this
Court’s jurisdiction.”) (third factor). In addition, there is no mention of Mobley’s
affirmative defense that she was “fleeing an incidence or pattern of domestic
violence,” see 18 U.S.C. § 1204(c)(2), despite its potential effect on the weight of the
evidence against her.
The district court’s consideration of the § 3142(g) factors during the review
hearing was also incomplete. It affirmed the detention order based solely on the
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nature of Mobley’s offense (i.e., a flight out of the country), her history of
noncompliance with court orders, and the court’s fear that she would flee again. It
did not consider whether any release conditions would assure Mobley’s appearance at
trial—even though she offered to submit to electronic monitoring, to have her parents
pay a bond, and to turn in both her American and Russian passports. It declared only
that it was “not a huge fan of electronic monitoring because [it sees] those cut off all
the time,” Aplt. App. at 54. It then referenced Mobley’s “demonstrated history to not
comply with court orders and to flee,” together with her Russian citizenship, and
stated that no conditions or combination of conditions would assure her appearance
in court. Id. at 60.
The district court also erred in failing to consider Mobley’s affirmative
defense to international kidnapping as part of its analysis of the second § 3142(g)
factor. At the hearing on the motion to revoke, Mobley clearly articulated her
position that prior abuse by her ex-husband constituted an affirmative defense to the
kidnapping charge. She referenced two police reports filed against him (one on
August 3, 2013, for rape, and one on December 5, 2013, for domestic violence) and
claimed those reports were substantiated by photographs of bruised wrists and
evidence of threats. The district court did not evaluate whether the allegations of
abuse might support a valid affirmative defense. To the contrary, it repeatedly
discounted their relevance, referring to Mobley’s flight as “self-help” and “vigilante
justice.” Aplt. App. at 38-39, 42; see also id. at 46-48, 55 (admonishing that Mobley
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should have pursued abuse charges against her ex-husband in the American court
system, “not flee the country”).
III. Conclusion
For the foregoing reasons, we remand for the district court to issue findings of
fact and to explain the reasoning behind the detention decision or, alternatively, to
order Mobley’s pretrial release subject to appropriate conditions.
Entered for the Court
Per Curiam
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