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Second Circuit Clarifies Conditions for Releasing a Defendant on Bail to Home Detention With Private Armed Security Guards

by Douglas Ankney

The U.S. Court of Appeals for the Second Circuit clarified the circumstances when a defendant’s bail may include home confinement coupled with private armed security guards.

Jean Boustani applied for bail pending trial, proposing conditions that included home confinement under supervision of private security guards paid for by Boustani.

The district court denied bail, finding that Boustani posed a flight risk because: (1) the charges against Boustani of conspiracy to commit wire fraud, conspiracy to commit securities fraud, and conspiracy to commit money laundering were serious; (2) Boustani faced a possible lengthy sentence if convicted; (3) the evidence against Boustani was strong; and (4) of Boustani’s deceptive actions, along with his access to substantial financial resources, frequent international travel, and ties to foreign countries without extradition.

Additionally, the district court considered that releasing Boustani to a privately funded jail would lead to disparate treatment between him and his codefendants, who might pose flight risks for similar reasons but lacked the financial resources available to Boustani.

Boustani appealed.

The Second Circuit opined that 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.” 18 U.S.C. § 3142(b). If the court determines the defendant is a flight risk, it must release him “subject to the least restrictive further condition, or combination of conditions, that ... will reasonably assure the appearance of the person.”§ 3142(c)(1)(B). The court must order detention if it finds no condition or combination of conditions will assure the person’s appearance and the safety of other persons. § 3142(e).

In determining the sufficiency of the condition or conditions, the court considers several factors that include: (1) the nature and circumstances of the charges; (2) the weight of the evidence; (3) the history and characteristics of the defendant; and (4) the danger posed by the defendant’s release. United States v. Sabhnani, 493 F.3d 63 (2d Cir. 2007).

The Government must prove, by a preponderance of the evidence, both the risk of flight and the absence of conditions that would reasonably assure the appearance of the defendant. Id.

The Second Circuit had previously recognized that, in limited circumstances, a court may release a defendant to home confinement in which the defendant pays for private armed security guards. Id. But since Sabhnani, the Second Circuit had observed in non-precedential summary orders that pretrial release under those conditions may not be appropriate for wealthy defendants when similarly situated defendants of lesser means would be detained. United States v. Esposito, 749 F. App’x 20 (2d Cir. 2018). It is a fundamental principle of fairness that the law protects “the interests of rich and poor criminals in equal scale, and its hand extends as far to each.” Smith v. Bennett, 365 U.S. 708 (1961).

The Court determined that the private-security condition of Sabhnani is appropriate only where a defendant was found to be a flight risk and would be detained primarily because of his wealth. By contrast, if similarly situated defendants of lesser means would be detained, then a wealthy defendant cannot avoid detention by relying on his funds to pay for private detention. 

Boustani wasn’t detained primarily because of his wealth, but he was detained for the reasons stated by the district court. Additionally, persons of lesser means, such as his codefendants, would be detained merely because they lacked financial resources. 

Accordingly, the Court affirmed the district court’s order denying bail. See: United States v. Boustani, 932 F.3d 79 (2d Cir. 2019). 

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Related legal case

United States v. Boustani



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