UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-10612
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
LESLIEDAWN CLARK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Dallas
(3:95 CR 183 H)
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August 29, 1995
Before HIGGINBOTHAM, DUHÉ and BENAVIDES, Circuit Judges.
PER CURIAM:1
Pro se2 Appellant Lesliedawn Clark appeals from the district
court's order retaining her in the custody of the Attorney General
pending trial.3 We affirm.
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
2
Appellant was represented by counsel in the proceedings below.
However, sometime after the district court's detention order was
entered, counsel moved to withdraw citing irreconcilable
differences between him and his client. Appellant requested that
the district court grant the motion to withdraw and allow her to
proceed with this appeal pro se. The district court granted the
request.
3
Appellant's trial has been set for October 2, 1995.
I. BACKGROUND
Appellant and seven co-defendants have been charged in a
sixteen count indictment with: (1) conspiracy to defraud the
United States through the violation of various tax laws, in
violation of 18 U.S.C. § 371; and (b) aiding, procuring, counseling
and advising in the filing of false and fraudulent "Employee
Withholding Allowance Certificates" (form W-4), in violation of 26
U.S.C. § 7206(2).
The government moved to detain Appellant pursuant to 18 U.S.C.
§ 1342(f)(2)(B), based on belief that Appellant presented a serious
risk of obstructing, threatening or injuring prospective witnesses.
After hearing, the Magistrate Judge found that Appellant
represented a danger to Internal Revenue agents and witnesses, and
ordered Appellant detained. The district court, after holding a
hearing and conducting a de novo review, affirmed the detention
order of the magistrate. Specifically, the district court found:
From clear and convincing evidence the Court finds, after
considering the standards set out in 18 U.S.C. §
3142(f)(2)(B) and the factors set forth in 18 U.S.C. §
3142(g) as follows:
There is a serious risk that, unless detained,
Defendant Clark will obstruct or attempt to
obstruct justice, or threaten, injure or
intimidate, or attempt to threaten, injure or
intimidate, prospective witnesses.
Release of Defendant Clark might pose a danger
to potential witnesses, agents of the Internal
Revenue Service, and to the community.
No condition or combination of conditions of
release could be set to reasonably assure the
safety of witnesses, any other persons, and
the community.
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II. ANALYSIS
We will affirm the district court's pretrial detention order
if "`if it is supported by the proceedings below,' a deferential
standard of review that we equate to the abuse-of-discretion
standard." United States v. Hare, 873 F.2d 796, 798 (5th Cir.
1989). Appellant asserts five discernable grounds for relief: (a)
that the district court improperly found that she was a danger to
the community; (b) that the district court improperly based its
decision on hearsay, in violation of the confrontation clause; (c)
that her detention violates equal protection because her co-
defendants were released; (d) that she is being retained without
charges in violation of her right to due process and in violation
of the Fifth and Eighth Amendments; and (e) that her detention
violates her first amendment rights.
A. Danger to the Community
Pretrial detention is appropriate where one of the six factors
listed in 18 U.S.C. § 3142(f) is implicated and a judicial officer
finds, after a hearing, that no condition or combination of
conditions will reasonably assure the appearance of the person as
required and the safety of the community. See United States v.
Byrd, 969 F.2d 106, 109 (5th Cir. 1992). Where Appellant's charged
offense is not a violent crime, Appellant may still be retained if
the government proves a nexus between one or more of the six §
3142(f) factors and the offense charged. See id. at 110. In the
instant case, the government proved a nexus between the charged
conspiracy to defraud the government and § 3142(f)(2)(B) which
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provides that detention may be ordered where there exists "a
serious risk that the 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."
At the hearing before the district court, the government
provided testimony showing, inter alia, that
(1) According to a confidential informant, Appellant had
stated "she would blow away any agent that came into her
residence;"
(2) Appellant had purchased seven assault rifles, three
automatic pistols and approximately 3000 rounds of
ammunition between October 23, 1992 and November 21,
1992, from the "Ammo Depot" in Mesquite, Texas;
(3) According to the owner of the "Ammo Depot,"
Appellant had made statements about overthrowing the
United States government and, in particular, the Internal
Revenue Service; and
(4) At the time of her arrest, Appellant had a sign on
the front door of her residence that stated, in essence,
"Beware Public Servant...don't contact me in person. You
have to mail any correspondence that you have to me. If
not, survivors will be prosecuted."
Despite Appellant's attempts to account for the firearms, and the
numerous character witnesses that testified at the hearing before
the district court or provided affidavits on her behalf, we find
the record supports the district judge's determination that
Appellant presents a danger to the community. The remainder of
Appellant's arguments are easily disposed.
B. Hearsay Testimony
Appellant's contention that the district court improperly
admitted hearsay testimony is without merit. As we have stated
previously, hearsay testimony is admissible in a detention hearing.
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See United States v. Trosper, 809 F.2d 1107, 1111 (5th Cir. 1987);
see also 18 U.S.C. § 3142(f) ("The rules concerning admissibility
of evidence in criminal trials do not apply to the presentation and
consideration of information at the hearing."). The district
court, as trier of fact at a detention hearing, is entitled to make
credibility choices that we will not disturb unless clearly
erroneous. See United States v. Aron, 904 F.2d 221, 224 (5th Cir.
1990).
C. Equal Protection Claim
Appellant has made no showing that any of her co-defendants
made threats against government agents, acquired large quantities
of assault weapons and ammunition, advocated the overthrow of the
United States government or posted warnings to "public servants" on
their residences. She has not shown any disparity in treatment.
D. Held Without Charges
Appellant is being detaining pursuant to an indictment
returned by the Grand Jury. Appellant claim is without foundation.
E. First Amendment Claim
Appellant has not briefed her First Amendment claim, and
therefore it is deemed abandoned. See Brinkmann v. Abner, 813 F.2d
744, 748 (5th Cir. 1987).
III. CONCLUSION
The detention order of the district court is supported by the
record below. For the reasons above, we AFFIRM.
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