U.S. v. Kisling, 03-2030.
| Decision Date | 01 July 2003 |
| Docket Number | No. 03-2030.,03-2030. |
| Citation | 334 F.3d 734 |
| Parties | UNITED STATES of America, Appellee, v. Troy KISLING, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Virginia Villa, Minneapolis, MN, for appellant.
David J. MacLaughlin, Asst. U.S. Atty., Minneapolis, MN, for appellee.
Before HANSEN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.
Troy Kisling (Kisling) appeals his pretrial detention. Kisling is charged with one count of conspiracy and multiple counts of mail fraud in violation of 18 U.S.C. §§ 371 and 1341 (2000). After hearing evidence and finding Kisling posed a risk of flight, the magistrate judge1 ordered Kisling's pretrial detention. On appeal of the pretrial detention order, the district court2 affirmed.
Kisling requests we independently assess the merits of his application for release on bail pending trial. See United States v. Maull, 773 F.2d 1479, 1486-88 (8th Cir.1985) (en banc). Kisling contends the magistrate judge and the district court erroneously determined the factual situation warranted pretrial detention.
Additionally, Kisling argues the magistrate judge's and the district court's opinions were erroneously based upon the wrong burden of proof. Specifically, Kisling argues the correct burden of proof for the government on the issue of detention based on risk of flight is clear and convincing evidence. Kisling is wrong.
Only if the government shows by clear and convincing evidence that no release condition or set of conditions will reasonably assure the safety of the community and by a preponderance of the evidence that no condition or set of conditions under subsection (c) will reasonably assure the defendant's appearance can a defendant be detained before trial.
United States v. Orta, 760 F.2d 887, 891 & n. 20 (8th Cir.1985) (en banc) (internal footnotes omitted); see also 18 U.S.C. § 3142(c), (e)-(f).3
The magistrate judge determined Kisling was a risk of flight based on the following facts. Kisling's mother told federal agents that neither she nor any member of the family wishes to have continuing association with Kisling. Kisling was unemployed and had no substantial assets in the community. Kisling evaded service of process by the Federal Trade Commission (FTC) after he observed the June 2000 FTC raid of his business from across the street. Kisling failed to appear for a scheduled jury trial in a February 2001 domestic assault charge, for which a bench warrant remained outstanding at the time of the detention hearing. In December 2002, when federal agents went to Kisling's apartment to serve his arrest warrant he failed to open the door, requiring agents to procure a key from the apartment manager.
Based on the above facts, the magistrate...
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