Skip navigation
Disciplinary Self-Help Litigation Manual - Header
× You have 2 more free articles available this month. Subscribe today.

Seventh Circuit Announces Standard of Review for Bond Revocation of Defendant on Pretrial Release

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit clarified the standard of review for revocation of bond when the arrestee is alleged to have violated conditions of release.

Lashawn Wilks was arrested on numerous serious offenses, including conspiracy to distribute methamphetamine. He was released on bond with conditions that included (1) a home-confinement condition that restricted him to his home except for various named exceptions; (2) a requirement that he avoid all contact with victims, witnesses, and codefendants; (3) a requirement that he promptly report any contact with law-enforcement personnel.

The U.S. District Court for the Southern District of Illinois granted Wilks’ request to travel to Centralia, Illinois, and stay overnight to attend medical appointments, a family wedding, and church services. But while on the trip, Wilks traveled to a bar in Mount Vernon where a bar patron was shot and killed. Surveillance video from the bar revealed Wilks had spoken with one of his codefendants. Police investigating the shooting also spoke with Wilks, which he failed to report as required by the terms of his pretrial release.

Once the Government became aware of the video, it moved to revoke Wilks’ bond for two violations: (1) his contact with his codefendant and (2) his failure to report his contact with law enforcement. But at the hearing on the revocation motion, the district judge sidestepped the Government’s arguments for revocation and focused instead on his order authorizing the trip to Centralia. The judge emphasized he had given Wilks permission to attend a wedding, two medical appointments, and church services, not permission to go to a bar. The judge found that Wilks had violated both his conditions of release and the court’s order authorizing the trip, concluding: “Immediate detention pending disposition of this case is therefore necessary and appropriate to achieve reasonable assurance that Wilks will appear before the [c]ourt as required and to safeguard public welfare. See 18 U.S.C. § 3142(f).” Wilks appealed, arguing, inter alia, that even if he did violate a condition of his release, the district court failed to explain why detention was necessary, as required by 18 U.S.C. § 3148(1).

The Court observed that a defendant charged with a serious drug crime is subject to a rebuttable presumption that there are no conditions that will assure his appearance and the safety of the community. § 3142(e)(3)(A). While this places a light burden on the defendant, the Court stated that the burden of persuasion always rests with the Government and an unrebutted presumption, by itself, is an inadequate reason to order detention. United States v. Dominguez, 783 F.2d 702 (7th Cir. 1986). Instead, the presumption must be evaluated along with the factors listed § 3142(g). If the Government fails to satisfy its burden to justify detention, the judge is required to order release pending trial imposing the least restrictive combination of conditions that will reasonably assure defendant’s appearance and the safety of the community. § 3142(c)(1)(B).

When a defendant on pretrial release is alleged to have violated the conditions thereof, the Government may move to revoke release under § 3148. In which case, the court is required to revoke release and order detainment if, after a hearing, the court:

“(1) finds that there is –

(A) probable cause to believe that the person committed a Federal, State, or local crime while on release; or

(B) clear and convincing evidence that the person has violated any other condition of release; and

(2) finds that –

(A) based on the factors set forth in section 3142(g) of [Title 18], there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community; or

(B) the person is unlikely to abide by any condition or combination of conditions of release.” § 3148(b).

The Seventh Circuit noted that it has never addressed the statute in a published opinion, nor has it ever determined the proper standard of review for revocation decisions. The Court observed that other circuits (Second, Fifth, Eighth, Ninth, and Tenth Circuits) agree that the standard of review is the same for an initial release or detention decision and a decision to revoke release. See United States v. Moreno, 857 F.3d 723 (5th Cir. 2017); United States v. Howard, 793 F.3d 1113 (9th Cir. 2015); United States v. Cisneros, 328 F.3d 610 (10th Cir. 2003); United States v. LaFontaine, 210 F.3d 125; United States v. Welsand, 993 F.2d 1366 (8th Cir. 1993).

The Seventh Circuit joined its sister circuits and announced its adoption of the same standard of review for revocation decisions as that used for initial detention decisions, explaining that the “defendant’s interest in his personal liberty” and the government’s interest in public safety and defendant’s appearance in court are “identical in both contexts.” That is, the standard of review for all detention decisions requires an “independent review” of the decision below “with deference to the judge’s findings of historical fact and his greater familiarity with the defendant and the case.” See United States v. Portes, 786 F.2d 758 (7th Cir. 1985).

Applying that standard to the instant case, the Court determined the judge did not find by clear and convincing evidence that Wilks violated a condition of release (while the Government alleged Wilks had done so, the judge revoked for a violation of the order authorizing the trip).

Additionally, the judge failed to explain why detention was needed according to the criteria contained in § 3148(b)(2)(A) or (B). The Court explained that a finding of a release condition violation alone is insufficient to permit revocation; there must also be findings under § 3148(b)(1) and (b)(2) before release may be revoked. The judge merely found that Wilks had violated the order authorizing the trip and then recited the statute, the Court stated. Recitation of statutory language “devoid of any discussion, analysis, or explanation as to why the district court concluded that the criteria for release had not been met” cannot justify detention after conviction, much less pretrial detention when the presumption of innocence remains. United States v. Swanquist, 125 F.3d 573 (7th Cir. 1997).

Finally, the Court stated that the judge did not weigh the factors listed in § 3142(g) to support a finding that detention was necessary to achieve reasonable assurance that Wilks would appear before the court as required and to safeguard public welfare.

Accordingly, the Court reversed the judge’s order and remanded for further proceedings consistent with its opinion. See: United States v. Wilks, 15 F.4th 842 (7th Cir. 2021). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal cases

United States v. Wilks

United States v. Moreno

United States v. Howard

United States v. Cisneros

U.S. v. LaFontaine

United States Court of Appeals
Fpr the Second Circuit




Docket No. 00–1157

Argued March 23, 2000.

Decided April 12, 2000.

*127 Myles H. Malman, North Miami, FL, for Appellant.

Paul B. Radvany, Assistant United States Attorney for the Southern District of New York (Mary Jo White, United States Attorney for the Southern District of New York), for Appellee.

Before: FEINBERG, JACOBS, STRAUB, Circuit Judges. Defendant

FEINBERG, Circuit Judge:

Defendant Sonia LaFontaine appeals from an order of the United States District Court for the Southern District of New York (Michael B. Mukasey, J.), entered on February 25, 2000, that revoked her bail and remanded her to federal custody. Appellant LaFontaine argues that (1) the district court abused its discretion in relying on the government's proffer; (2) there was no probable cause to believe that defendant committed the crimes of witness tampering and perjury while released on bail; and (3) the district court clearly erred in concluding that no conditions would assure that LaFontaine will not pose a danger to the community. This case raises some issues of first impression concerning the government's use of proffers. It also poses the question of whether obstruction of justice by a white-collar criminal, even where it does not involve violence or threat of violence, may support a finding of danger to the community. For the reasons set forth below, we affirm.

I. Background

LaFontaine and her husband, Arthur Kissel (aka Arthur Froom), were initially indicted in March 1998. A superseding indictment in 12 counts was returned in November 1998. The present indictment, issued in October 1999, charges LaFontaine and her husband with 17 counts of mail fraud, health care fraud, engaging in monetary transactions with criminally derived property, conspiracy, and witness tampering, in connection with their activities at LaFontaine Rish Medical Associates, a cosmetic surgery clinic (“the clinic”). LaFontaine and other employees of the clinic allegedly committed health care fraud by submitting false claims to health insurers for procedures that either were not performed, were only for cosmetic purposes,*128 or were not performed by licensed physicians. LaFontaine has no criminal record. Kissel has absconded to Canada and remains a fugitive there.

A. Events prior to the bail revocation hearing.

LaFontaine was initially arrested in March 1998 and detained at the Metropolitan Correctional Center (“MCC”). While there, LaFontaine called Ana Reyes (“Reyes Jr.”), a relative FN1 and a former employee of the clinic. During their conversation, LaFontaine and Reyes Jr. discussed several procedures that had been performed on Reyes Jr.'s mother (“Reyes Sr.”) at the clinic. This conversation was recorded by the MCC (“MCC tape”). The government alleges that Reyes Sr. had several cosmetic operations at the clinic, including a “tummy-tuck” and liposuction, that were not covered by insurance. The clinic did not charge Reyes Sr. for these procedures; instead, it billed her insurance for other procedures, including correction of a hernia, vein treatments, lesion removals and nasal reconstruction, that were never performed. In the taped conversation, LaFontaine “reminds” Reyes Jr. of the procedures her mother purportedly received at the clinic. The MCC tape also depicts LaFontaine falsely telling Reyes Jr. that doctors were present during all the procedures that were performed. Reyes Jr., meanwhile, reassured LaFontaine that she had told authorities that her mother had a hernia operation.

FN1. Reyes Jr. is the mother of LaFontaine's great-niece.

A few days after LaFontaine's arrest, her initial bail was set by then-Magistrate Judge Buchwald, who imposed several pretrial release conditions. These included a prohibition on contacting doctors, former doctors, employees, former employees, or patients of the clinic, or any other potential witnesses. In addition, LaFontaine posted a one million dollar personal surety bond. In August 1998, one of LaFontaine's former lawyers, Lothar Genge, requested a modification of the bail conditions to allow LaFontaine to speak with Reyes Jr. as well as with other employees and patients of the clinic. The government refused to consent to this modification and Judge Mukasey denied the request.

B. The bail revocation proceeding.

On February 18, 2000, the government submitted a letter proffer to the district court requesting revocation of bail on two grounds: first, there was clear and convincing evidence that LaFontaine had violated the conditions of her release by contacting Reyes Jr.; and second, there was probable cause to believe that LaFontaine had also committed the crime of witness tampering by attempting to influence Reyes Jr.'s testimony.FN2

FN2. The letter was submitted to the court ex parte because the government feared that defendant might flee if she learned of the government's motion.

The letter set forth in great detail the evidence the government was prepared to proffer at the hearing on its motion. It alleged that, despite the bail conditions, LaFontaine and Reyes Jr. met on several occasions in 1999, and that LaFontaine often treated Reyes Jr.'s children to meals and gifts, which was not her previous custom. Among other things, the letter charged that at some time in 1999 LaFontaine invited Reyes Jr. to her house and played the MCC tape for her. At that time, LaFontaine asked Reyes Jr. to “remind” her mother that she had a hernia operation and a procedure on her nose at the clinic, even though LaFontaine knew that to be false. According to the government, LaFontaine was then aware that Reyes Jr. was likely to be a government witness at the trial. The letter also alleges that while Reyes Sr. was a patient at the clinic, LaFontaine had told her to lie about what procedures were actually performed on her. Additionally, the letter alleges that LaFontaine's husband sent *129 Reyes Sr. a fraudulent set of medical records that reflect LaFontaine's statements to Reyes Jr. The government also claimed that LaFontaine provided Reyes Jr. with the name and address of another employee of the clinic whom LaFontaine wanted to contact in connection with this case. The letter was accompanied by a transcript of the MCC tape and an affidavit of a government attorney describing LaFontaine's previously rebuffed efforts to obtain permission to contact Reyes Jr.

The district court held hearings on the government's motion to revoke bail on February 22, 23, and 25, 2000. Both sides had the opportunity to present argument and evidence to the court. In addition to its letter proffer, the government also orally proffered evidence of what it characterized as defendant's long history of obstruction in this case. According to the government, LaFontaine had shredded documents, attempted to contact other witnesses, and intimidated a doctor at the clinic. Indeed, the superseding indictments charged her with the tampering of another witness in this case. The government argued that there was danger of future obstruction by LaFontaine, both of Reyes Jr. and other (unnamed) witnesses. The government also argued that because its proffers revealed the extent of the evidence it had against LaFontaine, she now presented a flight risk. Finally, following the second day of hearings and in response to evidence offered by LaFontaine, the government submitted an additional letter, dated February 24, 2000, showing that there was probable cause to believe that LaFontaine lied when she stated in an affidavit to the court that she did not possess a copy of the MCC tape.

LaFontaine's response to the government's proffer consisted of two of her own affidavits, an affidavit from her husband, and an affidavit from her husband's lawyer. LaFontaine also called two of her prior defense attorneys, Lothar Genge and Richard Wojszwilo, as witnesses. In her first affidavit to the court, dated February 23, LaFontaine stated that “any contact I may have had with Ana Reyes [Jr.] was strictly in a familial and social context, and I never attempted or did threaten, intimidate or try to influence her testimony or that of her mother.” Specifically, LaFontaine claimed that there was no “sinister” motivation behind her generosity to Reyes Jr.'s children as she was related to them. She also disputed the allegation that she played the MCC tape for Reyes Jr. or even possessed the tape.FN3 LaFontaine denied that her conversation with Reyes Jr. constituted witness tampering because, she maintained, Reyes Sr. did have the procedures that were discussed. To support this contention, LaFontaine submitted hospital records showing that Reyes Sr. had a hernia operation at Yonkers General Hospital. Finally, LaFontaine argued that as she believed Reyes Jr. was her own witness, she had no reason to harass, intimidate, or influence her testimony. LaFontaine's counsel, Genge, testified that to his knowledge Reyes Jr. and the defendant did not meet alone; that he listened to the MCC tape at defendant's apartment; and that he did not believe the tape to be very significant.

FN3. Although LaFontaine denied possessing the tape, in her second affidavit to the court, dated February 24, she admitted transferring boxes containing her legal files from one attorney to the other. According to the testimony of Wojszwilo those boxes probably contained the MCC tape.

On the second day of hearings, the government revealed that Reyes Jr. was the source of its proffer and that she had previously lied to the grand jury and to government investigators. Because of this disclosure, LaFontaine's counsel repeatedly requested the district court to direct the government to call Reyes Jr. to testify. LaFontaine's counsel argued that the government's proffer was unreliable because of Reyes Jr.'s perjury. Further, he argued that this revelation was surprising as LaFontaine had anticipated that Reyes Jr. *130 would be a defense witness. The district court denied the request.

C. The district court decision.

On February 25, the judge ruled in open court on the government's motion to revoke bail. The judge accepted the government's proffer and concluded that (1) LaFontaine contacted a government witness in direct violation of the district court's order; (2) there was probable cause to believe that LaFontaine made materially false statements in her affidavits to the court; and (3) there was probable cause to believe that LaFontaine committed the crime of witness tampering under 18 U.S.C. § 1512(c)(2). The judge did not credit Genge's testimony, finding that he disobeyed the court order prohibiting any association between Reyes Jr. and LaFontaine and that he was too willing to exculpate his client. The judge concluded that under 18 U.S.C. § 3148(b):

the presence of probable cause to believe that the defendant committed a federal crime while on release creates a rebuttable presumption that no condition or combination of conditions will assure that the defendant will not pose a danger to the community. That presumption exists and has not been rebutted.

After considering whether to limit defendant to house arrest with other additional precautions, e.g. electronic monitoring, phone tap, the district court concluded that “the latest disclosure of a false statement direct[ed] to the court reveals a level of desperation by this defendant that I believe counsels in favor of continued confinement....” At the close of the hearing, the judge ordered that bail be revoked and scheduled the trial to begin on June 5, 2000.

This appeal followed.

II. Discussion

A. Relevant statute and standard of review.

A district court may revoke an order of release under 18 U.S.C. § 3148(b) if, after a hearing, the court determines either that there is “probable cause to believe that the person has committed a Federal, State, or local crime while on release,” or that there is “clear and convincing evidence that the person has violated any other condition of release.” § 3148(b)(1)(A)-(B). In addition, the district court must find that “there is no condition or combination of conditions of release that will assure that the person will not flee or pose a danger to the safety of any other person or the community,” or that “the person is unlikely to abide by any condition or combination of conditions of release.” § 3148(b)(2)(A)-(B). As Judge Mukasey noted, the statute also creates a rebuttable presumption that “[i]f there is probable cause to believe that, while on release,” the defendant has committed a felony, there is no set of conditions that will assure that “the person will not pose a danger” to the community. § 3148(b)(2). That presumption does not disappear once the defendant has produced some rebuttal evidence, but “continues to be weighed along with other factors.” United States v. Rodriguez, 950 F.2d 85, 88 (2d Cir.1991). As we stated in United States v. Gotti, “unless we believe that the findings of the district judge were clearly erroneous or that he committed an error of law, we should affirm” the district court's order of detention or release. 794 F.2d 773, 778 (2d Cir.1986); see also United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.1995) (noting that the scope of review may be “slightly broader with respect to the ‘ultimate determination’ that defendant does, or does not, present a risk to the citizenry”). We review the district court's determination that a package of bail conditions will prevent danger to the community for clear error. See Ferranti, 66 F.3d at 542.

B. The government's proffer.

As described above, the government proceeded almost entirely by proffer: its two letters to the court as well as its *131 oral proffer to the court during the revocation hearings.FN4 It is well established in this circuit that proffers are permissible both in the bail determination and bail revocation contexts. See id. (bail determination); United States v. Davis, 845 F.2d 412, 415 (2d Cir.1988) (bail revocation). In Davis, this court stated that “it would [not] be an abuse of discretion for the district court to permit the government to proceed by proffer alone.” Id. at 415.

FN4. An important exception is, of course, the transcript of the MCC tape, which the government attached to its February 18 letter.

As in the case of other pretrial proceedings such as arraignments and “probable cause” determinations for warrants, bail hearings are “typically informal affairs, not substitutes for trial or even for discovery. Often the opposing parties simply describe to the judicial officer the nature of their evidence; they do not actually produce it.” United States v. Acevedo–Ramos, 755 F.2d 203, 206 (1st Cir.1985) (Breyer, J.); see also United States v. Martir, 782 F.2d 1141, 1145 (2d Cir.1986) (bail hearing cannot become a “mini-trial” or “a discovery tool for the defendant”). Nevertheless, this court has also recognized that while the informality of bail hearings serves the demands of speed, the magistrate or district judge must also ensure the reliability of the evidence, “by selectively insisting upon the production of the underlying evidence or evidentiary sources where their accuracy is in question.” Martir, 782 F.2d at 1147 (emphasis omitted) (quoting Acevedo–Ramos, 755 F.2d at 207). In Martir, a case where the government argued that defendant posed a risk of flight and proceeded solely by proffer, we stated that “[i]n the informal evidentiary framework of a detention hearing, the methods used to scrutinize government proffers for reliability must lie within the discretion of the presiding judicial officer, informed by an awareness of the high stakes involved.” Id. at 1147. In that case, we criticized the government's proffer for simply stating in “general and conclusory terms what it hoped to prove,” for failing to refer to any “independent evidence, such as tapes, documents, or photographs,” and for failing to furnish any testimony or affidavits. Id. However, because the defendant in Martir did not object to the proffer, we

United States v. Welsand

United States v. Portes



The Habeas Citebook Ineffective Counsel Side
PLN Subscribe Now Ad 450x450
BCI - 90 Day Campaign - 1 for 1 Match