United States District Court, D. Colorado
ORDER ON AMENDED MOTION FOR RELEASE PENDING
Brooke Jackson United States District Judge.
matter is before the Court on defendant's Amended Motion
for Release Pending Appeal. ECF No. 54. The motion requests
that Mr. Workman be housed in a halfway house pending the
conclusion of a pending appeal from this Court's
suppression of certain critical evidence in the case. The
government has responded, and the defendant has replied. ECF
Nos. 55 and 56. The Court held a hearing on December 20,
2016. At the conclusion of the hearing the Court denied the
motion and informed the parties that a written order would
and CASE HISTORY
October 7, 2015 Andrew Joseph Workman was indicted for
receipt and possession of child pornography. ECF No. 1. On
October 19, 2015, following a discovery and detention
hearing, Magistrate Judge Michael E. Hegarty ordered that Mr.
Workman be detained during the pendency of the case. ECF No.
detention order Judge Hegarty noted that charges of receipt
and possession of child pornography give rise to a rebuttable
presumption of detention, and that, in light of the
indictment, probable cause existed to sustain the charges.
ECF No. 18 at 3. He further found, by a preponderance of the
evidence, that Mr. Workman presented a risk of nonappearance
due to several factors: (1) the nature of the offense; (2)
the admission of counsel that the defendant was not
contesting detention; (3) Mr. Workman's lack of contacts
with the community; (4) his current living situation, because
he had been asked to leave his apartment by his roommate; and
(5) information in the file indicating suicidal ideation.
Id. From those facts he concluded that there was no
condition or combination of conditions that would reasonably
assure his appearance for court proceedings,
“especially in light of the presumption of detention in
this case.” Id.
September 6, 2016, this Court granted a motion to suppress
evidence obtained from the government's search of Mr.
Workman's computer. ECF No. 33. On October 3, 2016 the
government appealed the suppression order. ECF No. 46. That
appeal remains pending at this time.
defendant filed his amended motion for release pending appeal
on October 24, 2016. He argues that the suppression of the
computer evidence substantially undermines the basis for the
detention order, and that the Court should not consider the
suppressed evidence when it determines whether there is a
rebuttable presumption against release, citing United
States v. Jay, 261 F.Supp.2d 1235, 1239-40 (D. Ore.
2003). He suggests placement in a halfway house and an order
mandating mental health treatment, arguing that these will
mitigate concerns about flight and danger to himself or
others. ECF No. 54 at 4-6. Defendant argues that, in the
circumstances, continued detention would violate his due
process rights. Id. at 6-7.
government responds that the suppression order does not
impact the determination of probable cause that Mr. Workman
committed the offense, citing United States v.
Pina-Aboite, 97 F.App'x 832, 835 (10th Cir. 2004)
(unpublished). ECF No. 55 at 3. Similarly, the government
argues that the Court should look at the strength of the
evidence without regard to its admissibility at this stage,
citing United States v. Cos, 198 F.App'x 727,
730 (10th Cir. 2006) (unpublished). Id. at 3-4. The
government contends that the facts found by Judge Hegarty
have not changed. The government disputes that continued
detention during its appeal will violate Mr. Workman's
due process rights. Id. at 5-7.
reply the defendant emphasizes that at the time of the
initial detention hearing pretrial services prepared a report
and recommended his release to a halfway house. ECF No. 56 at
1. In that report, filed at ECF No. 17, Officer Junker
recommended release on a $10, 000 unsecured bond with a list
of 23 conditions. In response to a question from the Court
near the conclusion of the December 20, 2016 hearing, Officer
Junker acknowledged that he did not then and still does not
consider the weight of the evidence in making such
recommendations. His position is that, setting aside the
weight of the evidence, the bond conditions he has
recommended would suffice for placement at a halfway house.
the Bail Reform Act courts must 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 such person as required and the
safety of any other person and the community.” 18
U.S.C. § 3142(f). That, of course, is what Judge Hegarty
did. The court must consider (1) the nature and circumstances
of the offense charged, (2) the weight of the evidence
against the defendant, (3) the history and characteristics of
the individual, and (4) the nature and seriousness of the
danger to the individual or to the community that would be
posed by the individual's release. 18 U.S.C. §
3142(g). Again, the record reflects that Judge Hegarty
considered the relevant factors. The same factors apply to
this Court's consideration of detention pending appeal.
See 18 U.S.C. § 3143(c).
factors on which Judge Hegarty relied, one - the nature of
the offense and the attendant rebuttable presumption of
detention - has not changed. See Pina-Aboite, 97
F.App'x at 835. Three others -- Mr. Workman's lack of
contacts with the community, the fact that he does not have a
non-custodial place to live, and information in the file
indicating suicidal ideation, likewise haven't changed. I
accept that placement in a halfway house with mental health
treatment would provide Mr. Workman a place to live and would
potentially reduce the risk of flight. However, it would not
eliminate the latter risk, nor would it eliminate Judge
Hegarty's concern about suicidal ideation. The Court was
informed by government counsel that Mr. Workman has attempted
principal change, of course, is this Court's suppression
of the computer evidence. I realize that suppression of the
evidence derived from the NIT warrant makes it difficult if
not impossible for the government to prosecute the case. But
that order is the subject of the government's appeal, and
in Pina-Aboite the court stated that it is not
improper for the district court to consider the suppressed
evidence in evaluating the weight of the evidence for
detention purposes while the appeal is pending. Id. See
also Cos, 198 F.App'x at 730-31. Also, while I
believe that suppression was proper, I recognize that several
district courts have considered the same suppression issue in
cases involving the same NIT warrant, and they are split. In
that context, it seems to me to be even more appropriate to
consider the suppressed evidence in evaluating the weight of
the evidence. If the evidence were deemed admissible, it
would provide substantial evidence of guilt.
I conclude that Mr. Workman has received substantive and
procedural due process. The reasons for his detention have
been amply explained and, in the circumstances, are neither
excessive nor unfair. Bear in mind that he did not contest
detention until this Court granted his motion to suppress
evidence. He also has had two ...