United States v. Hitselberger

• Decision Date: 20 December 2012
• Docket Number: Criminal Action No. 12–231 (RC).
• Citation: 909 F.Supp.2d 4
• Parties: UNITED STATES of America, v. James HITSELBERGER, Defendant.
• Court: U.S. District Court — District of Columbia

909 F.Supp.2d 4

UNITED STATES of America,

v.James HITSELBERGER, Defendant.

Criminal Action No. 12–231 (RC).

United States District Court,

District of Columbia.

Dec. 20, 2012.

Jay I. Bratt, U.S. Attorney's Office, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

RUDOLPH CONTRERAS, District Judge.

When James Hitselberger traveled to Kuwait to collect his personal belongings from a United States military base, he was arrested on two counts of unlawful retention of national defense information, in violation of 18 U.S.C. § 793(e). On October 31, 2012, a magistrate judge ordered him detained without bond pending trial. Mr. Hitselberger has appealed that order of detention under 18 U.S.C. § 3145(b).

I. BACKGROUND

James Hitselberger is a 56–year–old linguist. He is fluent in Arabic, Farsi, and Russian. In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information. The government alleges that, on two occasions earlier this year, Mr. Hitselberger unlawfully retained national defense information.

Immediately after the second alleged incident, Mr. Hitselberger submitted to two voluntary, non-custodial interviews with agents from the Naval Criminal Investigative Service. After the interviews concluded, the NCIS agents asked Mr. Hitselberger for a mailing address where they could send his personal property after he left the base. He provided a physical address in the upper peninsula of Michigan, a phone number associated with that address, and two email addresses. Mr. Hitselberger asked the agents for contact information in case he needed to reach them, but did not receive it. He was permitted to return to his room and pack his bag, leaving behind many other personal belongings. He was told that Global Linguist Solutions had arranged for him to return to the United States, where he would be officially terminated because of the security violation. At that point, Mr. Hitselberger had not been charged with any crime, nor had he been informed that he was likely to be charged with a crime.

Mr. Hitselberger took a commercial flight from Bahrain to Frankfurt, Germany. Although he was scheduled to travel from Frankfurt to the United States, he instead checked himself into a Frankfurt hotel. He informed Global Linguist Solutions that he was feeling ill and would not be continuing home at that time.

Over the next six months, Mr. Hitselberger traveled throughout Europe. He used his United States passport and made no attempt to conceal his identity or his location as he traveled. To the contrary: he posted updates to Facebook with photographs and place descriptions, sent postcards to friends, used the email addresses that he had provided to the NCIS investigators (which they monitored) and drew on the bank account that he had held since 1984.

On August 6, 2012, the government filed a criminal complaint against Mr. Hitselberger and received a warrant for his arrest. The complaint and warrant were both sealed; he did not learn of them. Mr. Hitselberger continued to travel in Europe, and to communicate with Global Linguist Solutions about the personal belongings that he had left behind in Bahrain. In September 2012, he was told that he could retrieve his belongings from a United States military base in Kuwait. When he arrived at the Kuwaiti border, he was denied entry and arrested.

II. THE BAIL REFORM ACT OF 1984

“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, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The scope of that exception is defined by the Bail Reform Act of 1984, which permits pretrial detention only when the safety of others or the appearance of the defendant cannot be reasonably assured. As one district judge has summarized:

The Bail Reform Act of 1984 sets forth the limited circumstances in which a defendant may be detained before trial despite the presumption in favor of liberty. The Act provides that if a judicial officer finds by clear and convincing evidence that “no condition or combination of conditions will reasonably assure ... the safety of any other person and the community, such judicial officer shall order the detention of the [defendant] before trial.” 18 U.S.C. § 3142(e). The Act also provides for pretrial detention when the Court finds by a preponderance of the evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant in court as required. See18 U.S.C. § 3142(e); United States v. Simpkins, 826 F.2d 94, 96 (D.C.Cir.1987).

United States v. Hanson, 613 F.Supp.2d 85, 87–88 (D.D.C.2009). The Bail Reform Act also provides instruction on how to analyze the necessity for pretrial detention. As the Circuit has described it:

Section 3142(g) of the Act sets out the factors to be considered by the magistrate or judge in deciding whether available conditions will reasonably assure the defendant's appearance [or the safety of others]: the nature and circumstances of the offense, particularly its nonviolent nature; the weight of the evidence;the history and characteristics of the person, including his character, family ties, employment, length of residence in the community, community ties, past conduct, criminal history, and record of court appearances; and the danger the defendant poses to the community if released.

United States v. Xulam, 84 F.3d 441, 442 (D.C.Cir.1996) (per curiam).

III. FIRST DETENTION HEARING

After a hearing at which both government and defense counsel proceeded by proffer, a magistrate judge found that Mr. Hitselberger presented both a danger to the community and a risk of flight, neither of which could be reasonably mitigated by any condition or combination of conditions of release. As to the first statutory factor, she found that “the nature and circumstances of the offenses charged indicate that on more than one occasion, Defendant removed classified documents containing sensitive materials related to national defense from secure facilities.” She found that the weight of the evidence against Mr. Hitselberger was strong, and that his history and characteristics showed “a risk of fugitivity” because (as she concluded) he had “fled when confronted with an investigation, and remained abroad for almost eight months” and also had a demonstrated ability to live abroad on limited funds. Finally, she found that Mr. Hitselberger “poses a danger to the community by potentially compromising national security” when he retained classified information.

IV. ARGUMENTS ON APPEAL

Mr. Hitselberger now appeals. This court reviews such appeals de novo, and may hear additional evidence, see, e.g., United States v. Sheffield, 799 F.Supp.2d 18, 20 (D.D.C.2011); Hanson, 613 F.Supp.2d at 88, which may be presented by way of proffer, United States v. Smith, 79 F.3d 1208, 1210 (D.C.Cir.1996) (per curiam). The court has reviewed documentary evidence submitted by both government and defense counsel and has heard oral argument, at which factual proffers were made.

Mr. Hitselberger first argues that because he no longer has access to classified information, he would present no danger to the community if released. The government does not contest the point. Thus, the only issue is whether any conditions of release could reasonably assure Mr. Hitselberger's appearance in court. The defendant must be released pending trial unless the court finds by a preponderance of the evidence that there is a serious risk that he will flee, and that no condition or combination of conditions could reasonably assure his appearance. See United States v. Nwokoro, 651 F.3d 108, 109 (D.C.Cir.2011) (per curiam) (citing 18 U.S.C. § 3142(f)).

The government argues that Mr. Hitselberger has fled before and should be expected to flee again. Although it acknowledges that he was legally permitted to travel in Europe rather than returning home, the government argues that any reasonable person in Mr. Hitselberger's shoes would have known that he was facing a bad situation. It therefore follows, on the government's...