EFTA00024833.pdf

Case 19-1018, Document 61, 08/01/2019, 2621854, Pagel of 10 19-1018-cr United States v. Boustani lin the Zfliniteb *Wes Court of appeats5 for the 6econb Circuit AUGUST TERM 2018 No. 19-1018-cr UNITED STATES OF AMERICA, Appellee, v. JEAN BOUSTANI, AKA JEAN BOUSTANY, Defendant-Appellant: On Appeal from the United States District Court for the Eastern District of New York ARGUED: MAY 14, 2019 DECIDED: AUGUST 1, 2019 • The Clerk of Court is directed to amend the caption as set forth above. EFTA00024833 Case 19-1018, Document 61, 08/01/2019. 2621854, Paget of 10 Before: CABRANES, HALL, Circuit Judges, and STANCEU, Judge.* Defendant-Appellant Jean Boustani ("Boustani") appeals from a March 28, 2019 order of the District Court for the Eastern District of New York (William F. Kuntz, II, Judge) denying Boustani's bail application and directing that he be detained pending trial. We affirmed the District Court's order by order on May 16, 2019. We write to explain that decision and to clarify the circumstances under which the Bail Reform Act permits a District Court to release a defendant pending trial pursuant to a condition that the defendant pays for private armed security guards. MARK E. BINI (David C. James and Hiral D. Mehta, on the brief), Assistant United States Attorney, for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. RANDALL JACKSON (Michael S. Schachter and Casey E. Donnelly, on the brief), Willkie • Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation. 2 EFTA00024834 Case 19-1018, Document 61, 08/01/2019, 2621854, Page3 of 10 Farr & Gallagher LLP, New York, NY, for Defendant-Appellant. JOSE A. CABRANES, Circuit Judge: Defendant-Appellant Jean Boustani ("Boustani") appeals from a March 28, 2019 order of the District Court for the Eastern District of New York (William F. Kuntz, II, Judge) denying Boustani's bail application and directing that he be detained pending trial. We affirmed the District Court's order by order on May 16, 2019. We write to explain that decision and to clarify the circumstances under which the Bail Reform Act permits a District Court to release a defendant pending trial pursuant to a condition under which the defendant would pay for private armed security guards. I. BACKGROUND Boustani is charged with conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349; conspiracy to commit securities fraud, in violation of 15 U.S.C. §§ 78j(b) and 78ff and 18 U.S.C. §§ 371; and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(a) and (h). Boustani filed an application for bail pending trial, proposing a set of conditions that included home confinement under the supervision of private armed security guards, to be paid for by Boustani. The Government opposed Boustani's request and argued that he should be detained pending trial because he was a flight risk. 3 EFTA00024835 Case 19-1018, Document 61, 08/01/2019. 2621854, Page4 of 10 The District Court denied Boustani's bail application, and Boustani appealed. We affirmed the District Court's order without prejudice to further bail applications before the District Court.' Boustani then filed another bail application, which the District Court again denied on March 28, 2019. Boustani now appeals from the District Court's order denying his second bail application. After oral argument on May 14, 2019, we affirmed the District Court order by order on May 16, 2019. II. DISCUSSION We review a district court's order of detention for clear error and will reverse only where "on the entire evidence we are left with the definite and firm conviction that a mistake has been committed."2 Under the Bail Reform Act, a court is required to order the pretrial release of a defendant on personal recognizance or after execution of an appearance bond "unless the judicial officer 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."3 If the court finds that a defendant poses a risk of flight, it must release him "subject to the least restrictive further condition, or combination of conditions, ' See United States v. Boustani, No. 19-344, 2019 WL 2070656, at •1 (2d Cir. Mar. 7, 2019). 2 United States v. &Ottani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation marks omitted). 3 18 U.S.C. § 3142(b). 4 EFTA00024836 Case 19-1018, Document 61, 08/01/2019. 2621854, Page5 of 10 that .. . will reasonably assure the appearance of the person."4 The court must order detention, however, if it "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."5 In determining whether any condition or combination of conditions is sufficient, a court should consider several factors, including: (1) the nature and circumstances of the charged offense; (2) the weight of the evidence; (3) the history and characteristics of the defendant; and (4) the nature and seriousness of the danger posed by the defendant's release.' The Government bears the burden of proving by a preponderance of the evidence both that the defendant "presents an actual risk of flight" and that "no condition or combination of conditions could be imposed on the defendant that would reasonably assure his presence in court."7 We have previously recognized that, in limited circumstances, a court may release a defendant subject to conditions of home confinement in which, among other things, the defendant pays for private armed security guards.' In United States v. Sabhnani, we first 18 U.S.C. § 3142(c)(1)(B). 5 18 U.S.C. § 3142(e). 6 18 U.S.C. § 3142(g); Sabhnani, 493 F.3d at 76 & n.16. ' Sabhnani, 493 F.3d at 75. 8 td. at 77-78. 5 EFTA00024837 Case 19-1018, Document 61, 08/01/2019. 2621854, Page6 of 10 acknowledged that such home confinement, combined with other restrictive conditions, may suffice to reasonably assure the defendant's appearance in court. We noted in that case, however, that we had "no occasion to consider whether it would be contrary to principles of detention and release on bail to allow wealthy defendants to buy their way out by constructing a private jail."9 We observed that the defendants in that case were likely denied bail because of their wealth and that defendants of "lesser means . . . might have been granted bail in the first place."'° Since Sabhnani, however, we have highlighted our concerns regarding granting bail to defendants because of their wealth. In non- precedential summary orders, we have observed that pretrial release pursuant to, inter alia, conditions such as supervision by privately hired security guards may not be appropriate for wealthy defendants when similarly situated defendants of lesser means would be detained." And we have noted that district courts need not routinely consider "the retention of self-paid private security guards," which 9 td. at 78 n.18 (internal quotation marks omitted). 10 a " See, e.g., United States v. Esposito, 749 F. App'x 20, 24 (2c1 Cir. 2018) (non- precedential summary order). 6 EFTA00024838 Case 19-1018, Document 61, 08/01/2019. 2621854, Pagel of 10 may be best understood as "a less onerous form of detention available only to the wealthy."12 We now expressly hold that the Bail Reform Act does not permit a two-tiered bail system in which defendants of lesser means are detained pending trial while wealthy defendants are released to self-funded private jails. It is a fundamental principle of fairness that the law protects "the interests of rich and poor criminals in equa