United States v. Parahams
| Decision Date | 25 February 2013 |
| Docket Number | CAUSE NO. 3:13-CR-005 JD |
| Parties | UNITED STATES OF AMERICA v. JONATHAN PARAHAMS, JR. (01) |
| Court | U.S. District Court — Northern District of Indiana |
This matter is before the court on defendant Jonathan Parahams's motion for judicial review of the detention order handed down by Magistrate Judge Nuechterlein on January 24, 2013, and as amended on January 25, 2013. [DE 31; DE 36]. The indictment [DE 1] charges Parahams and certain others with a conspiracy to defraud the United States by obtaining or aiding to obtain the payment or allowance of false, fictitious and fraudulent claims, in violation of 18 U.S.C. § 286. Specifically, the defendants are charged with obtaining over $3.5 million in tax refunds from the IRS, of which the government estimates about $2.5 million were fraudulent and obtained at an illegal loss to the government. At the detention hearing, the government argued for detention, and the defense argued for release. Judge Nuechterlein ordered Parahams detained as a flight risk, and on February 13, 2013, Parahams asked this Court for a review. [DE 40]. The government responded [DE 42], and on February 21, 2013, this Court held a hearing on the matter. [DE 43]. Having taken the motion under advisement for a de novo review, the Court now denies the motion. Parahams will remain in custody pending trial.
18 U.S.C. § 3145(b) permits a defendant to file a motion seeking review or revocation of a detention order when the defendant has been "ordered detained by a magistrate judge, or by a personother than a judge of a court having original jurisdiction over the offense and other than a Federal appellate court[.]" Section 3145(b) does not require that new evidence or information be available before a detention order can be reconsidered and revoked, id, and "[t]he standard of review for the district court's review of a magistrate judge's detention . . . order . . . is de novo." United States v. Cisneros, 328 F.3d 610, 616 n. 1 (10th Cir. 2003). "When the district court acts on a motion to revoke or amend a magistrate's pretrial detention order, the district court acts de novo and must make an independent determination of the proper pretrial detention or conditions for release." United States v. Rueben, 974 F.2d 580, 585-86 (5th Cir. 1992); see also United States v. Maull, 773 F.2d 1479, 1481 (8th Cir. 1985); United States v. Sallay, 2011 WL 1344288 at *4 (N.D. Ind. April 8, 2011); United States v. Stephens, 2007 WL 2164248 at *3 (N.D. Ind. July 25, 2007); United States v. Boxley, 2007 WL 79176 at *1 (N.D. Ind. Jan. 8, 2007); United States v. McManus, 2006 WL 3833314 at *1 (N.D. Ind. Dec. 5, 2006). A district court may review a magistrate's detention order without holding a new hearing. United States v. Bergner, 800 F.Supp. 659 (N.D. Ind. 1992) (citing United States v. Gaviria, 828 F.2d 667, 670 (11th Cir. 1987); United States v. Phillips, 732 F.Supp. 255, 259 (D.Mass. 1990)). "An evidentiary hearing is necessary only if the party requesting the hearing raises a significant disputed factual issue." United States v. Sophie, 900 F.2d 1064, 1070 (7th Cir. 1990). An evidentiary hearing was warranted in this case; not only did it provide the parties an opportunity to discuss legal authorities which were cited in the defendant's brief but not discussed thoroughly at the previous hearing, it gave the defense the opportunity to submit two additional exhibits.
The Bail Reform Act ("BRA") limits the circumstances under which a district court may order pretrial detention. See United States v. Friedman, 837 F.2d 48, 49 (2d Cir. 1988). "When amotion for pretrial detention is made, the court engages in a two-step analysis: first, the judicial officer determines whether one of ten conditions1 exists for considering a defendant for pretrial detention; second, after a hearing, the judicial officer determines whether the standard for pretrial detention is met." United States v. Thomas, 2011 WL 5386773 at *3 (S.D. Ind. Nov. 7, 2011) (citing Friedman, 837 F.2d at 49). In this case, both steps of the inquiry are satisfied, and Parahams must be detained because no condition or combination of conditions can reasonably assure his appearance in Court as required.
The possible prerequisites for holding a detention hearing are divided into two categories. The first category, found at 18 U.S.C. § 3142(f)(1), essentially lists certain types of offenses according to their statute in the United States Code. See Thomas, 2011 WL 5386773 at *3; 18 U.S.C. § 3142(f)(1)(A)-(E). All parties agree that the offense Parahams is alleged to have committed does not fall under subsection (f)(1). That leaves the second category of possible prerequisites, subsection (f)(2). Subsection (f)(2) empowers the Court to hold a detention hearing, either on motion of the government or sua sponte, in any case (regardless of the offense charged) in which there is a serious risk that the defendant will flee, see § 3142(f)(2)(A), or in which there is a serious risk that the defendant will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror. See § 3142(f)(2)(B); United States v. Chavez-Rivas, 536 F.Supp.2d 962, 966 (E.D.Wis. 2008). The government has not argued potentialobstruction of justice or witness tampering, so the Court's authority to consider detention in this case must derive from subsection (f)(2)(A), concerning flight risk.
In order to consider a defendant for detention based on the risk of flight under subsection (f)(2)(A), the Court must find that risk to be present by a preponderance of the evidence. Friedman, 837 F.2d at 49. That burden is met in this case. Parahams has an extensive criminal record. He has been convicted of criminal offenses on fifteen separate occasions since turning 18. Two of those convictions are for felonies, with several other felonies charged but dismissed as part of plea bargains. Four times, his probation has been revoked for committing other offenses while on probation. One additional time, a petition for revocation was filed but no action was taken. Currently, he has yet another outstanding petition for revocation on file, once again for committing another offense while on probation. [Defense Exhibit A]. On at least one occasion, a warrant was issued after Parahams failed to appear in court. This dismal supervision history is entirely related to state charges, for which Parahams never faced substantial prison time. Based on a rough calculation, relying on Parahams's criminal history as listed in the PTS report and on the alleged loss amount, he is looking at a guidelines sentencing range of at least 151-188 months' imprisonment, and possibly more. The statute caps the penalty at ten years, see 18 U.S.C. § 286, and given the anticipated advisory guideline range, Parahams could receive that entire ten years if convicted. Given that he was noncompliant with court dates and supervision when he faced less substantial state penalties in past cases, the Court has concerns that he is not likely to be compliant here, where much more is on the line.
On top of that motive to flee, and on top of Parahams's demonstrated lack of respect for the law, including the terms of court supervision, he may have the means to disappear. During thehearing before Judge Nuechterlein, the government noted that this investigation began when Parahams suddenly withdrew almost $500,000.00 from a bank account, a transaction which drew the bank's attention. From the evidence currently available, it does not seem that the money in question has been recovered. If that is true, Parahams appears financially equipped to abscond. The facts and circumstances of this case convince the Court that Parahams is a flight risk.
Since the Court has found a valid reason to consider pretrial detention under subsection (f), the next question is whether the standard for pretrial detention, found at subsection (e), is met. Under that standard, "[p]retrial detention is allowed only after the court . . . finds that 'no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.'"Miller v. Hastings, 87 Fed. Appx. 585, 586 (7th Cir. 2004) (citing 18 U.S.C. § 3142(e)). Ordinarily, detention may be based on a showing of either dangerousness or risk of flight; proof of both is not required. United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985). The defendant takes issue with that proposition on the facts of this case, however, and argues that detention may only be based on risk of flight, since risk of flight was the only subsection (f) factor that allowed the Court to consider detention in the first place.
There is some authority for the defendant's argument. In United States v. Ploof, 851 F.2d 7 (1st Cir. 1988), the First Circuit claimed it was following the Third Circuit in holding that where there is no contention that any of the subsection (f)(1) conditions are met, "pre-trial detention solely on the ground of dangerousness to another person or to the community is not authorized." Id. at 12 (emphasis added) (citing United States v. Himler, 797 F.2d 156 (3d Cir. 1986)). The Seventh Circuit has not considered the question dealt with in Ploof, and district courts around the country haveapplied it in different ways. Contrast Chavez-Rivas, 536 F.Supp.2d 962 () with United States v. Holmes, 438 F.Supp.2d 1340, 1348-50 (S.D.Fla. 2005) (...
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