Petition for Writ of Certiorari — Cory Jermaine White, Petitioner v. United States

No. 23-________

IN THE

Supreme Court of the United States

CORY JERMAINE WHITE,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Counsel for Petitioner

I

QUESTION PRESENTED

Under the Bail Reform Act, 18 U.S.C. § 3142, must a

judicial finding of serious flight risk, §3142(f)(2)(A),

precede imposition of release conditions listed in

§ 3142(c)?

II

PARTIES TO THE PROCEEDING

All parties to the proceeding are listed in the caption

on the cover of this document.

RELATED PROCEEDINGS

•

United States v. Cory Jermaine White, No. 24-929

(9th Cir. filed Feb. 21, 2024)

•

United States v. Cory Jermaine White, No. 2:23cr-1749-PHX-MTL-3 (D. Ariz. filed Dec. 12, 2023)

•

United States v. Cory Jermaine White, No. 2:18cr-316-PHX-JJT (D. Ariz. filed Feb. 28, 2018)

III

TABLE OF CONTENTS

Proceedings below .............................................................. 1

Statement of Jurisdiction ................................................... 2

Constitutional and statutory provisions involved ........... 2

Statement ............................................................................ 2

Reasons for granting the writ ........................................... 5

1. Reading § 3142(b), (c), and (e) in pari materia means

that a hearing as authorized by subsection (f) must

precede both the decision to detain a person pretrial

and the decision to release a person subject to the

conditions in subsection (c). ......................................... 7

2. The district court could impose release conditions

only if Mr. White presented a “serious risk” that he

would “flee.” .................................................................. 9

3. The court of appeals blessed the district court’s

decision to impose release conditions under § 3142(c)

without requiring any judicial officer to determine

that this is one of the “most serious” cases in which

Congress authorized a reasonable-assurances

hearing. ........................................................................ 12

A. In its haste to credit the government’s mere

assertion that Mr. White posed a “serious risk”

of flight, the court of appeals misread

§ 3142(f)(2)(A). ....................................................... 12

B. The Ninth Circuit often fails to insist on the Bail

Reform Act’s two-step process for convening a

reasonable-assurances hearing, and thus often

allows illegal pretrial detention or release

conditions. .............................................................. 16

Conclusion .......................................................................... 17

IV

Appendix

Order Affirming Release Order, United States v.

White, No. 24-929 (9th Cir. Mar. 28, 2024) ..................... 1a

District Court Oral Ruling on Motion to Revoke Release

Order, United States v. White, No. 2:23-cr-1749-PHXMTL-3 (D. Ariz. Feb. 20, 2024) ....................................... 3a

Magistrate Judge Oral Release Order, United States v.

White, No. 2:23-cr-1749-PHX-MTL-3 (D. Ariz. Jan. 8,

2024) ................................................................................. 11a

Constitutional and Statutory Provisions Involved ...... 20a

V

TABLE OF AUTHORITIES

Cases:

Carcieri v. Salazar, 555 U.S. 379 (2009) ................... 14

Carlsbad Technology, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ........................................................ 8

Erlenbaugh v. United States, 409 U.S. 239 (1972) .... 8

Mumad v. Garland, 11 F.4th 834 (8th Cir. 2021) .... 14

Pasquantino v. United States,

544 U.S. 349 (2005) ........................................................ 8

Reiter v. Sonotone Corp., 442 U.S. 330 (1979) ......... 14

United States v. Ailon-Ailon,

875 F.3d 1334 (10th Cir. 2017) (per curiam) ............. 13

United States v. Byrd,

969 F.2d 106 (5th Cir. 1992) ................................. 11, 13

United States v. Carballo,

88 F.4th 239 (3d Cir. 2023) ......................................... 14

United States v. Cook,

87 F.4th 920 (8th Cir. 2023) ........................................ 13

United States v. Dai, No. 23-8081,

2024 WL 1749883 (2d Cir. Apr. 24, 2024) ................. 13

United States v. Delgado,

985 F. Supp. 2d 895 (N.D. Iowa 2013) ...................... 11

United States v. Flores,

974 F.3d 763 (6th Cir. 2020) ....................................... 14

United States v. Friedman,

837 F.2d 48 (2d Cir. 1988) (per curiam) .................... 11

United States v. Girodano,

370 F. Supp. 2d 1256 (S.D. Fla. 2005) ................. 11–12

VI

United States v. Ingle,

454 F.3d 1082 (10th Cir. 2006) ................................... 13

United States v. Johnson,

399 F.3d 1297 (11th Cir. 2005) ................................... 13

United States v. Lane,

252 F.3d 905 (7th Cir. 2001) ....................................... 13

United States v. Mitchell,

23 F.3d 1 (1st Cir. 1994) ............................................. 13

United States v. Motamedi,

767 F.2d 1403 (9th Cir. 1985) ..................................... 17

United States v. Munchel,

991 F.3d 1273 (D.C. Cir. 2021) ................................... 13

United States v. Nwokoro,

651 F.3d 108 (D.C. Cir. 2011) ..................................... 13

United States v. Orta,

760 F.2d 887 (8th Cir. 1985) ......................................... 9

United States v. Ploof,

851 F.2d 7 (1st Cir. 1988) ........................................... 11

United States v. Powers,

318 F. Supp. 2d 339 (W.D. Va. 2004) ......................... 12

United States v. Salerno,

481 U.S. 739 (1987) .............................................. 5, 9, 15

United States v. Singleton,

182 F.3d 7 (D.C. Cir. 1999) ......................................... 11

United States v. Stevens, 559 U.S. 460 (2009) .......... 14

United States v. Twine,

334 F.3d 987 (9th Cir. 2003) (per curiam) .... 12, 13, 14

United States v. Villatoro-Ventura,

330 F. Supp. 3d 1118 (N.D. Iowa 2018) .................... 11

VII

United States v. Watkins,

940 F.3d 152 (2d Cir. 2019) ........................................ 13

Wachovia Bank v. Schmidt, 546 U.S. 303 (2006) ...... 7

Constitution and statutes:

18 U.S.C. § 371 .............................................................. 2

18 U.S.C. § 1349 ............................................................ 3

18 U.S.C. § 1708 ............................................................ 2

18 U.S.C. § 1956 ............................................................ 3

18 U.S.C. § 3142 .................................................. 3, 5–17

18 U.S.C. § 3145 ............................................................ 5

18 U.S.C. § 3156 .......................................................... 10

28 U.S.C. § 1254 ............................................................ 2

28 U.S.C. § 1447 ............................................................ 8

Miscellaneous:

Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248 ...................................................... 9

Bail Reform Act of 1984, Pub. L. No. 98-473 ............. 9

Fed. R. Crim. P. 5 ......................................................... 6

Lauryn P. Gouldin, Defining Flight Risk,

85 U. Chi. L. Rev. 677 (2018) ..................................... 15

Sup. Ct. R. 10 ................................................................. 6

1

In the Supreme Court of the United States

————

NO. 23-_____

CORY JERMAINE WHITE, PETITIONER,

v.

UNITED STATES OF AMERICA

————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

PETITION FOR A WRIT OF CERTIORARI

————

Cory White respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case that

allowed a district court to deviate from the procedure

described in the Bail Reform Act of 1984 for imposing

conditions of pretrial release. The Ninth Circuit routinely

blesses such deviations, and this Court’s intervention will

correct that court’s oft-repeated error.

PROCEEDINGS BELOW

The court of appeals’s order affirming the district

court’s order of release with conditions is unreported, but

included in the appendix at page 1a. The district court’s

oral order modifying the release conditions imposed by

the magistrate judge is included in the appendix at page

3a. The magistrate judge’s oral order imposing release

conditions is included in the appendix at page 11a.

2

STATEMENT OF JURISDICTION

The court of appeals affirmed the district court’s

release order on March 28, 2024. (App. 1a) This petition is

timely. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions involved

are reproduced in the appendix at page 20a.

STATEMENT

1. In 2018, as a result of preindictment negotiations

with the U.S. Attorney’s Office in Arizona, Mr. White was

charged by information with one count of conspiracy to

commit mail theft, in violation of 18 U.S.C. §§ 371 and

1708. At his initial appearance in that matter on March 8,

2018, a magistrate judge ordered him released on

personal recognizance subject to certain conditions.

Nothing in the record of that case suggests that Mr. White

ever violated the release conditions or failed to appear in

court as required. He was allowed to remain at liberty

pending sentencing. He was ultimately sentenced to a

year and a day in prison, followed by three years of

supervised release, a sentence that the government

recommended. He was permitted to and in fact did selfsurrender for serving this sentence. Mr. White was

released from this sentence on July 10, 2019, and

successfully completed his term of supervised release on

July 9, 2022.

2. On December 12, 2023, a grand jury in the District

of Arizona indicted Mr. White and six codefendants on a

total of 15 counts involving fraud and money laundering.

3

Mr. White is specifically accused of two counts—one count

of conspiracy to commit wire and bank fraud, in violation

of 18 U.S.C. § 1349, and one count of conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h). A

warrant issued for Mr. White’s arrest, which the FBI

executed on Friday, January 5, 2024.

At Mr. White’s initial appearance the following

Monday, January 8, the court appointed an assistant

federal public defender to represent Mr. White. The

government sought detention. Mr. White contended that

a detention hearing was unauthorized because the

government could not show that Mr. White posed a

serious risk of flight. (App. 13a) See 18 U.S.C.

§ 3142(f)(2)(A). He pointed out that a number of family

members had attended the hearing, and that he had lived

in the Phoenix area for over five years. (App. 14a) He

pointed out that he had complied with pretrial release

orders in a prior case in the District of Arizona. (App. 14a)

For these reasons, he contended that he did not pose a

serious risk of flight, and a detention hearing was not

allowed. (App. 14a) The government countered, without

pointing to any evidence, that Mr. White had “limited ties

to Arizona, and he is a risk of flight.” (App. 15a)

The magistrate judge disagreed with the government.

“Mr. White’s been present for, it appears, at least five—

five years. And there’s also no question that he has strong

family support.” (App. 15a) The magistrate judge thus

granted Mr. White pretrial release, although on

conditions beyond those set forth in 18 U.S.C. § 3142(b).

These conditions included appearing in court as required;

not committing another federal, state, or local crime; not

leaving the District of Arizona without permission; and

surrendering his passport. (App. 17a) The magistrate

judge imposed no conditions of electronic monitoring or

home detention.

4

3. The government moved to revoke the release order

and have Mr. White detained pending trial. Mr. White

repeated his contention that he should be released

because he did not pose a serious risk of flight. The district

court held a hearing on the government’s motion. Several

of Mr. White’s family members attended this hearing also.

At the outset, the government agreed with Mr. White

that the question of serious flight risk was a prerequisite

to holding a detention hearing. It characterized the

detention issue as a “close case,” yet contended that it

could show that Mr. White was a “serious flight risk.” It

complained that “it took us a month to find defendant

after the indictment,” which in its view showed “an ability

to obfuscate his location to hide and make it difficult for

the government to find him.” The government alluded to

the fact that another codefendant was connected to a gang

in Chicago. When pressed by the district judge, however,

the government conceded that there was no evidence

“that Mr. White has relatives or friends who, if he wanted

to leave the state of Arizona, that he could take refuge

somewhere else.” The government’s only response to this

query was to point out that Mr. White “has traveled

internationally,” but the only evidence of such travel was

brief trips that had taken place before the indictment was

handed down. Defense counsel countered that Mr. White

had attended the hearing despite knowing of the serious

potential sentence that the charges against him carried.

Ultimately the district judge affirmed the magistrate

judge’s release order, although he modified it to include

home detention. He rejected Mr. White’s argument that

no detention hearing—and thus no release conditions—

could be held because Mr. White was not a serious risk of

flight. (App. 5a) Rather, he found by a preponderance of

the evidence that Mr. White was a flight risk “given his

ties across the United States, his travel to foreign

5

countries, [and the fact] that the defendant has been able

to conceal his identity.” (App. 5a) Adding a “restrictive

location monitoring component” to the release conditions,

the judge said, “will be an adequate condition or

combination of conditions to secure his attendance at trial

and to protect the community.” (App. 5a)

4. Mr. White appealed the modified release order to

the court of appeals. See 18 U.S.C. § 3145(c). He again

pressed his contention that no detention hearing and no

conditions beyond those set forth in § 3142(b) were

authorized because the government had not shown that he

posed a serious risk of flight. The court of appeals

rejected this argument. “The district court properly held

a hearing upon the government’s motion asserting a

serious risk that White would flee and seeking to revoke

the magistrate judge’s release order.” (App. 1a (citing 18

U.S.C. § 3142(e), (f))) And the court of appeals ruled that

the district judge was permitted to add the homedetention condition at the end of the hearing. (App. 2a)

This timely petition followed.

REASONS FOR GRANTING THE WRIT

“In our society, liberty is the norm, and detention prior

to trial or without trial is the carefully limited exception.”

United States v. Salerno, 481 U.S. 739, 755 (1987). Thirtyseven years ago, this Court upheld the Bail Reform Act of

1984 because the Act “carefully limits the circumstances

under which detention may be sought to the most serious

of crimes.” Id. at 747 (citing 18 U.S.C. § 3142(f)). Yet here,

the court of appeals discarded the Act’s careful

limitations, and approved a district court decision that

ordered pretrial home detention of a person for whom

neither it nor the district court found to present a “serious

risk” of flight. Cf. 18 U.S.C. § 3142(f)(2)(A). In so doing,

6

the court of appeals inverted the statutory procedure for

making decisions relating to pretrial release and

detention, and thus improperly discarded Congress’s

judgment that only “serious” cases warrant hearings at

which pretrial detention is an available outcome. The

court of appeals’s extreme deviation from statutory

procedure calls out for this Court’s review. See Rule 10(a).

When a person is arrested for an alleged federal crime,

he must be brought before a judicial officer “without

unnecessary delay.” Fed. R. Crim. P. 5(a)(1). At this initial

appearance, the judicial officer “must” order, Fed. R.

Crim. P. 5(d)(3), that the person be:

•

“released on personal recognizance or upon

execution of an unsecured appearance bond”

subject only to the conditions that the person not

commit further crimes and provide any required

DNA sample, see 18 U.S.C. § 3142(a)(1), (b);

•

“released on a condition or combination of

conditions” beyond the prohibition on further

criminal conduct and providing any required DNA

sample, see § 3142(a)(2), (c); or

•

detained pending trial, see § 3142(a)(4), (e). 1

All three of these options involve a determination by

the judicial officer relating to whether release will or will

not “reasonably assure” both “the appearance of the

person as required” and the “safety of any other person

or the community.” If the nearly-unconditional release in

§ 3142(b) will reasonably assure future court appearances

The Act also authorizes temporary detention to allow an

investigation into a person’s immigration status. 18 U.S.C.

§ 3142(a)(3), (d). But because Mr. White is a U.S. citizen, this option

was not available here.

1

7

and the safety of the community, then the judicial officer

“shall order” that. If release on any one or more of the

additional conditions set forth in § 3142(c) will reasonably

assure future court appearances and safety, then the

judicial officer instead “shall order” that. Only if no

condition or combination of conditions set forth in

§ 3142(c) will reasonably assure future appearances and

safety does the Act require the judicial officer to order

pretrial detention. See § 3142(e)(1).

1. Reading § 3142(b), (c), and (e) in pari materia

means that a hearing as authorized by subsection

(f) must precede both the decision to detain a

person pretrial and the decision to release a person

subject to the conditions in subsection (c).

A hearing at which the parties present or proffer

evidence relating to the defendant’s potential for

attendance at future court appearances and danger to the

community must precede the decision to detain an

individual pending trial. 18 U.S.C. § 3142(e)(1). Such a

hearing is only available under the discrete and limited

circumstances described in § 3142(f). As a matter of

statutory text and structure, such a hearing must also

take place before ordering release on one or more of the

conditions set forth in § 3142(c).

Because they use nearly identical language regarding

the “reasonabl[e] assur[ances]” that the Act requires, the

three statutory options with which attending future court

appearances and the safety of the community are

concerned—the ones set forth in § 3142(b), (c), and (e)—

must be read in pari materia. See, e.g., Wachovia Bank v.

Schmidt, 546 U.S. 303, 315–16 (2006) (explaining that

“under the in pari materia canon of statutory

construction, statutes addressing the same subject matter

generally should be read as if they were one law”) (quoting

8

Erlenbaugh v. United States, 409 U.S. 239, 243 (1972)). 2

And this is for good reason. In the context of pretrial

release and detention decisions, it would be passing

strange to require a hearing only if the judicial officer

should ultimately conclude that no release conditions

would reasonably assure future court appearances and

safety, but not to require a hearing if the officer should

ultimately conclude that some such conditions would

accomplish that same statutory goal.

The reasonable-assurances decision required by the

Act proceeds in two stages—first holding a hearing, if

authorized, and then making the findings that authorize

pretrial release or require pretrial detention. The Act sets

forth burdens of proof and presumptions that govern the

second stage of the detention decision, see § 3142(e)(2), (3),

as well as factors to consider at the second stage, see

§ 3142(g). But if at the first stage no hearing is authorized,

the Act requires the judicial officer to order pretrial

release subject only to the conditions set forth in

§ 3142(b): no further criminal conduct and providing any

required DNA sample.

The in pari materia canon applies both to different statutes

covering closely related subjects, see Pasquantino v. United States,

544 U.S. 349, 355 n.2 (2005) (explaining that this Court has “construed

identical language in the wire and mail fraud statutes in pari

materia”), and to different subsections of the same statute, see

Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009)

(explaining that this Court has “consistently held that [28 U.S.C.]

§ 1447(d) must be read in pari materia with § 1447(c)”).

2

9

2. The district court could impose release conditions

only if Mr. White presented a “serious risk” that he

would “flee.”

The first stage of the release-or-detention decision

authorizes a reasonable-assurances hearing 3 in seven

categories of cases. 4 Five of these categories involve

certain of the “most serious” crimes, see Salerno, 481 U.S.

at 747:

(A) a crime of violence, a violation of section 1591, or

an offense listed in section 2332b(g)(5)(B) for

which a maximum term of imprisonment of 10

years or more is prescribed;

(B) an offense for which the maximum sentence is life

imprisonment or death;

(C) an offense for which a maximum term of

imprisonment of ten years or more is prescribed

in the Controlled Substances Act (21 U.S.C. 801

et seq.), the Controlled Substances Import and

Export Act (21 U.S.C. 951 et seq.), or chapter 705

of title 46;

“Although the hearing is designated a ‘detention hearing,’ the

appellation is not completely accurate. The purpose of the hearing is

to determine whether any of the release options available to

defendants not immediately subject to a detention hearing will satisfy

the statutory safety and appearance concerns.” United States v. Orta,

760 F.2d 887, 891 (8th Cir. 1985).

3

As originally enacted, the Act described six categories of cases

in which a detention hearing was authorized. See Bail Reform Act of

1984, Pub. L. No. 98-473, § 203(a), 98 Stat. 1837, 1979 (codifying 18

U.S.C. § 3142(f)(1)(A)–(D), (f)(2)(A), (B)). Congress added the seventh

in 2006. See Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, § 216(2)(B), 120 Stat. 587, 617 (adding 18 U.S.C.

§ 3142(f)(1)(E)).

4

10

(D) any felony if such person has been convicted of

two or more offenses described in subparagraphs

(A) through (C) of this paragraph, or two or more

State or local offenses that would have been

offenses described in subparagraphs (A) through

(C) of this paragraph if a circumstance giving rise

to Federal jurisdiction had existed, or a

combination of such offenses; or

(E) any felony that is not otherwise a crime of

violence that involves a minor victim or that

involves the possession or use of a firearm or

destructive device (as those terms are defined in

section 921), or any other dangerous weapon, or

involves a failure to register under section 2250

of title 18, United States Code.

18 U.S.C. § 3142(f)(1). 5

In two more “serious” categories of cases, a

reasonable-assurances hearing is authorized without

regard to the nature of the crime with which the

defendant is charged:

(A) cases in which there is a “serious risk” that the

person accused “will flee;” or

(B) cases in which there is a “serious risk” that the

person accused will obstruct justice or threaten

potential trial witnesses.

18 U.S.C. § 3142(f)(2).

Here, Mr. White is charged with conspiracies to

commit fraud and money laundering, which are not among

the “most serious” of crimes that Congress included in the

The term “crime of violence” is defined separately in 18 U.S.C.

§ 3156(a)(4).

5

11

list of offenses set forth in § 3142(f)(1). There was no

evidence that he would attempt to tamper with witnesses

or obstruct justice within the meaning of § 3142(f)(2)(B).

Thus a reasonable-assurances hearing was authorized in

this case, if at all, only if there was a “serious risk” that

Mr. White would “flee.”

Other courts outside the Ninth Circuit recognize that

the situations set forth in § 3142(f) are the only ones in

which a reasonable-assurances hearing is authorized. For

instance, the D.C. Circuit has observed that “detention is

not an option” in the absence of “one of six [now, seven6]

circumstances triggering a detention hearing.” United

States v. Singleton, 182 F.3d 7, 9 (D.C. Cir. 1999).

Likewise, the Fifth Circuit has noted that a reasonableassurances hearing is available “only in a case that

involves one of the six [now, seven] circumstances listed

in” § 3142(f). United States v. Byrd, 969 F.2d 106, 109 (5th

Cir. 1992). The Second Circuit has described the very

same “two-step inquiry” for pretrial release or detention

that Mr. White reads in the Act. United States v.

Friedman, 837 F.2d 48, 49 (2d Cir. 1988) (per curiam). The

First Circuit has said that the two-stage release-ordetention framework is “clear” from the “structure of the

statute and its legislative history.” United States v. Ploof,

851 F.2d 7, 11 (1st Cir. 1988). “A request to detain a

defendant pending trial under § 3142(e) triggers a twostep inquiry.” United States v. Villatoro-Ventura, 330 F.

Supp. 3d 1118, 1124 (N.D. Iowa 2018) (citing United States

v. Delgado, 985 F. Supp. 2d 895, 897 (N.D. Iowa 2013)). By

2005, one district court said that it was “uniformly

accepted” that “there are only six [now, seven] instances

that permit a court to convene a detention hearing.”

United States v. Giordano, 370 F. Supp. 2d 1256, 1260

6

See supra note 4.

12

(S.D. Fla. 2005); accord United States v. Powers, 318 F.

Supp. 2d 339, 341 (W.D. Va. 2004).

3. The court of appeals blessed the district court’s

decision to impose release conditions under

§ 3142(c) without requiring any judicial officer to

determine that this is one of the “most serious”

cases in which Congress authorized a reasonableassurances hearing.

The Ninth Circuit, however, has not expressly

endorsed this framework. As Mr. White will show, it

instead collapsed the two-stage reasonable-assurances

framework into a single inquiry that allows the second

stage to swallow the first. It routinely reviews these issues

in this way.

To be sure, the Ninth Circuit has said it eschews an

“interpretation of the Act” that would make § 3142(f)

“meaningless.” United States v. Twine, 344 F.3d 987, 987

(9th Cir. 2003) (per curiam). But here it cited no caselaw

explaining why § 3142(b), (c), and (e) should not be read

in pari materia, as Mr. White contended. Nor did the

court of appeals otherwise explain how the district court

properly found that Mr. White posed a “serious” risk of

fleeing before trial. The only source of law on which the

court of appeals relied to affirm the imposition of release

conditions under § 3142(c) was § 3142 itself. (App. 1a–2a)

A. In its haste to credit the government’s mere

assertion that Mr. White posed a “serious risk”

of flight, the court of appeals misread

§ 3142(f)(2)(A).

To affirm the district court’s release conditions, the

court of appeals hung its hat on the government’s mere

assertion that Mr. White presented a “serious risk” of

13

fleeing. (App. 1a) This reasoning is both factually and

legally flawed. As for facts: Mr. White has a documented

history of attending required court hearings. At both his

initial appearance and the hearing before the district

judge, several members of his family sat in the gallery to

show their support. He has no place to stay outside of

Arizona. The government’s attempt to tie him to a gang in

Chicago rested entirely on innuendo. He never traveled

out of state or out of the country for more than a couple of

days. Indeed, the out-of-state travel was approved by

pretrial services. His passport is missing, and so he cannot

lawfully travel outside the United States while this case is

pending. None of these facts support the conclusion that

the risk that Mr. White might flee is “serious.”

The court of appeals’s legal reasoning, moreover,

suffers from three separate flaws. First, the decision to

hold a reasonable-assurances hearing cannot rest solely

on the government’s say-so. This is true of the § 3142(f)(1)

categories; the courts of appeals regularly review the

government’s assertion that the defendant is charged

with a qualifying crime, thus allowing for a hearing. 7 The

courts of appeals also regularly review determinations

under § 3142(f)(2). 8 It is true enough that the reasonableUnited States v. Mitchell, 23 F.3d 1 (1st Cir. 1994); United

States v. Watkins, 940 F.3d 152 (2d Cir. 2019); United States v.

Bowers, 432 F.3d 518 (3d Cir. 2005); United States v. Byrd, 969 F.2d

106 (5th Cir. 1992); United States v. Lane, 252 F.3d 905 (7th Cir.

2001); United States v. Twine, 334 F.3d 987 (9th Cir. 2003) (per

curiam); United States v. Ingle, 454 F.3d 1082 (10th Cir. 2006); United

States v. Johnson, 399 F.3d 1297 (11th Cir. 2005); United States v.

Munchel, 991 F.3d 1273, 1281 (D.C. Cir. 2021).

7

United States v. Dai, No. 23-8081, 2024 WL 1749883, at *1 (2d

Cir. Apr. 24, 2024) (noting the issue but resolving the appeal on other

grounds); United States v. Cook, 87 F.4th 920 (8th Cir. 2023); United

States v. Ailon-Ailon, 875 F.3d 1334 (10th Cir. 2017) (per curiam);

United States v. Nwokoro, 651 F.3d 108 (D.C. Cir. 2011).

8

14

assurances hearing can take place in § 3142(f)(1) cases

only “upon motion of the attorney for the Government,”

whereas either the judge or the government may ask for

a hearing in § 3142(f)(2) cases. But just as a judge

ultimately determines whether, say, a charged crime is a

“crime of violence” under § 3142(f)(1)(A), e.g. Twine, 334

F.3d 987, a judge must also ultimately determine whether

a defendant presents a “serious” risk of flight under

§ 3142(f)(2)(A). The court of appeals misread the statute

when it concluded that the government’s mere assertion

that Mr. White posed a “serious” risk of flight—an

assertion that crumbles under scrutiny in light of the

proffered evidence—allowed the district court to impose

release conditions under § 3142(c).

Second, uncritically accepting the government’s mere

assertion that a person accused of a federal crime

presents a “serious risk” of flight is itself a misreading of

the statute. It is axiomatic that this Court must “give

effect, if possible, to every word Congress used” in a

statute. Carcieri v. Salazar, 555 U.S. 379, 391 (2009)

(quoting Reiter v. Sonotone Corp., 442 U.S. 330, 339

(1979)). To take the government’s assertions regarding

flight risk at face value, when those assertions cannot

withstand any real scrutiny, is to ignore Congress’s

directive that where a reasonable-assurances hearing is

grounded in a defendant’s flight risk, that risk must rise

well above the ordinary risk of flight inherent in every

criminal case. See United States v. Stevens, 559 U.S. 460,

487 & n.4 (2010) (Alito, J., dissenting) (defining “serious”

as “not trifling,” “weighty,” “important”); United States v.

Caraballo, 88 F.4th 239, 246 (3d Cir. 2023) (giving one

definition of “serious” as “having dangerous possible

consequences”); Mumad v. Garland, 11 F.4th 834, 840

(8th Cir. 2021) (defining “serious” as “grave in manner”);

United States v. Flores, 974 F.3d 763, 765 (6th Cir. 2020)

(giving one definition of “serious” as “having important or

15

dangerous possible consequences”). Congress’s use of the

word “serious” in both subparagraphs of § 3142(f)(2) thus

bolsters the conclusion that some independent evaluation

of the gravity of the risk posed by the defendant’s

potential flight must precede any reasonable-assurances

hearing. Simply crediting the government’s mere

assertion that the defendant’s flight risk is “serious”

effectively cancels out Congress’s careful limitation on the

use of pretrial detention. See Salerno, 481 U.S. at 747.

Third, uncritically accepting the government’s

assertions about “serious risk” of fleeing conflates two

different concepts embodied in § 3142. A reasonableassurances hearing was authorized here only if Mr. White

presented a “serious risk” that he might “flee,”

§ 3142(f)(2)(A), while the aim of the hearing is to see if the

risk that he will not attend future court hearings is one

that can be adequately managed, § 3142(e)(1). As one

scholar has observed, “What judges, attorneys, and

scholars frequently describe in shorthand terms as ‘flight

risk’ is defined in older statutes and in newer riskassessment tools in significantly broader terms: the risk

that a defendant will fail to appear for a future court date.”

Lauryn P. Gouldin, Defining Flight Risk, 85 U. Chi. L.

Rev. 677, 682 (2018). The terms “flight” and

“nonappearance” are not interchangeable. Id. at 682–83.

A defendant who flees actually leaves the jurisdiction.

Id. at 725. A defendant who simply fails to appear could

do so for a variety of reasons: lack of awareness or

memory of a court date; illness or other unforeseen

emergencies; competing obligations such as employment,

school, or childcare; or a purposeful decision to flaunt the

court system while remaining in relative proximity to the

courthouse. See id. at 729–30. In sum, all defendants who

flee have failed to appear in court, but not all defendants

who fail to appear in court have fled.

16

Simply put, the court of appeals’s incorrect reading of

§ 3142(f)(2)(A) is the product of three legal errors. The

government’s mere assertion of “serious” risk of flight

cannot substitute for the independent determination that

a reasonable-assurances hearing is authorized in a

particular case. The reasonable-assurances hearing

cannot take place against the backdrop of only the

theoretical possibility that a person might escape the

jurisdiction. And the “serious risk” described in

§ 3142(f)(2)(A) is one of actually leaving the jurisdiction,

not simply of any kind of nonappearance at future court

hearings.

B. The Ninth Circuit often fails to insist on the

Bail Reform Act’s two-step process for

convening a reasonable-assurances hearing,

and thus often allows illegal pretrial detention

or release conditions.

This case is hardly the only one in the Ninth Circuit in

which that court has conflated flight risk with risk of

nonappearance, and concluded that proof of the latter

established the former. The following sentence (or some

slight variation on it) appears in seven Ninth Circuit

judgments 9 affirming detention orders between April

2023 and April 2024: “The district court correctly found

that the government has met its burden of showing, by a

preponderance of the evidence, that ‘no condition or

combination of conditions will reasonably assure the

[defendant’s] appearance,’ 18 U.S.C. § 3142(e), and that

United States v. Diallo, No. 24-1255 (9th Cir. Apr. 17, 2024);

United States v. Le, No. 24-1079 (9th Cir. Apr. 3, 2024); United States

v. Chavez, No. 23-1796 (9th Cir. Sept. 20, 2023); United States v.

Ahmed, No. 23-1067 (9th Cir. Jul. 13, 2023); United States v. Beasley,

No. 23-892 (9th Cir. Jun. 9, 2023); United States v. Rosales-Villegas,

No. 23-714 (9th Cir. Jun. 5, 2023).

9

17

appellant therefore poses a risk of flight.” This sentence

is always accompanied by a citation to United States v.

Motamedi, which established the atextual conflation of

risk of nonappearance with risk of flight as a feature of

circuit law. See 767 F.2d 1403, 1408–09 (9th Cir. 1985)

(concluding that the “grounds upon which the district

court based its determination that Motamedi poses a

serious risk of flight, and that no condition or combination

of conditions will reasonably assure his appearance as

required, are insufficient”). Granting review in this case

will allow the Court to clarify that the words “flee” and

“appearance” in § 3142 have different meanings, and

instruct the Ninth Circuit to implement that difference.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org