The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge
ORDER DENYING DEFENDANT'S APPEAL AND REQUEST TO THE DISTRICT COURT TO RECONSIDER A PRE-TRIAL MATTER DETERMINED BY THE MAGISTRATE JUDGE, FILED OCTOBER 30, 2012
Before the Court is Defendant Robert Wong's ("Defendant") Appeal and Request to the District Court to Reconsider a Pre-Trial Matter Determined by the Magistrate Judge ("Appeal"), filed October 30, 2012. [Dkt. No. 26.] Plaintiff the Untied States of America ("the Government") filed its opposition to the Appeal on October 31, 2012 and its supplemental memorandum in opposition on November 1, 2012. [Dkt. Nos. 28, 32.] This matter came on for hearing on November 2, 2012. Appearing on behalf of the Government were Assistant United States Attorney Leslie Osborne, Jr. Also present was Corey Hokama. Appearing on behalf of Defendant was Assistant Federal Public Defender Sean R. Coutain. Defendant was also present.
In an indictment filed on June 21, 2012, Defendant was charged with fraud in violation of 18 U.S.C. § 1343. She is alleged to have solicited investors to place money in programs or investments and falsely stated that these investors would receive significant returns on their original investments. These allegedly false representations sometimes included directing investors to send money directly to Africa. [Dkt. No. 1.]
On July 3, 2012, Defendant was ordered to comply with specific conditions for her pretrial release. Relevant to the matter at hand, these conditions included that she refrain from violating any federal, state or local laws. [Dkt. No. 7.]
On September 28, 2012, the Government filed its motion to revoke bail. [Dkt. No. 16.] The Government contended that, on August 20, 2012, a Mr. Robert Corder was interviewed by federal agents and stated that Defendant persuaded him and others to wire significant sums of money to Ghana as an "investment", and that the last time that he spoke about his investment with Defendant was on August 17, 2012 by telephone. The Government further represented that Mr. Corder produced a listing on his mobile telephone that displayed telephone calls associated with a telephone number for "Roberta Wong".
On October 3, 2012, a hearing on the motion to revoke bail was held before United States Magistrate Judge Richard L. Puglisi. The Government made several representations at the hearing, including proffering and filing under seal what was described as an investigative report and identified as "Exhibit 1" as well as offering Corey Hokama, identified as a representative from Homeland Security, as a witness who could testify as to Exhibit 1. The Government also stated that it possessed an audio recording of Defendant's voice on telephone calls with Mr. Corder, the alleged victim. In opposition, Defendant's counsel argued that the Government failed to have the alleged victim testify about the alleged solicitation by Defendant, that the tape recording did not conclusively establish that Defendant's voice was on the recording, and that the recordings did not provide any evidence of an illegal purpose. In short, Defendant submitted that the Government failed to prove that Defendant violated any laws after being placed on conditions of pretrial release.
The magistrate judge found that the Government made a sufficient showing that Defendant is a danger to the community, and granted the motion to revoke bail. Defendant's pretrial release conditions were revoked, and she was detained on October 3, 2012.
Pursuant to 28 U.S.C. § 636(b)(1) and Criminal Local Rule 57.3(b), a party may appeal to a district judge any pretrial nondispositive matter determined by a magistrate judge. Under 28 U.S.C. § 636(b)(1)(A), a magistrate judge's order may be reversed by the district court only if it is "clearly erroneous or contrary to law." The threshold of the "clearly erroneous" test is high. United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."); see also Thorp v. Kepoo, 100 F. Supp. 2d 1258, 1260 (D. Hawai'i 2000) (the clearly erroneous standard is "significantly deferential, requiring a definite and firm conviction that a mistake has been committed").
The Bail Reform Act of 1984 ("Act"), 18 U.S.C. § 3141, et seq., is the statutory scheme in which federal courts consider the circumstances under which bail may be granted as well as subsequently revoked. 18 U.S.C. § 3148 specifically governs revocation of pretrial release. It provides as follows:
(b) Revocation of release.--The attorney for the Government may initiate a proceeding for revocation of an order of release by filing a motion with the district court. A judicial officer may issue a warrant for the arrest of a person charged with violating a condition of release, and the person shall be brought before a judicial officer in the district in which such person's arrest was ordered for a proceeding in accordance with this section. To the extent practicable, a person charged with violating the condition of release that such person not commit a Federal, State, or local crime during the period of release, shall be brought before the judicial officer who ordered the release and whose ...