United States v. Potter
| Decision Date | 15 October 2020 |
| Docket Number | 3:20-mj-00052 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. YAMINI POTTER Defendant. |
| Court | U.S. District Court — Virgin Islands |
TO: Matthew A. Campbell, Esq., FPD
Alessandra Parisi Serano, Esq., AUSA
THIS MATTER is before the Court on Defendant Yamini Potter's Motion to Amend September 24th Order (ECF No. 31) and Motion to Vacate August 28th Order (ECF No. 33), the government's Opposition to Defendant's Motions to Amend the Sept. 24th Order and to Vacate the August 28th Order (ECF No. 36), and Potter's Reply re: Motions to Amend and Vacate (ECF No. 39).
On August 11, 2020, the government filed a criminal complaint against Potter for 80 counts of wire fraud, 2 counts of impersonating an officer of the United States, 1 count of obstruction of justice, 2 counts of acting in assumed character, and 1 count of grand larceny (ECF No. 1). Soon after, the government moved for an emergency no-contact order because Potter contacted victims while posing as someone else in order to obtain funds (ECF No. 14 at 1). On August 28, 2020, the Court granted the government's motion and prohibited Potter from contacting, either directly or through other persons, any of the individuals named in the criminal complaint (ECF No. 15).
Nearly a month later, the government filed a second criminal complaint against Potter for criminal contempt and obstruction of justice.1 The government then moved to revoke Potter's communication privileges because he allegedly assumed the identities of Virgin Islands Attorney General Denise George, U.S. Magistrate Judges Ruth Miller and George W. Cannon, Jr., Former Lt. Gov. Osbert Potter, and former District Court Judge Curtis Gomez, to obtain money from victims to fund a fictitious lawsuit (ECF No. 20). On September 24, 2020, the Court continued the matter to October 5, 2020 to allow the parties to fully brief the government's Motion to Revoke Defendant's Communication Privileges (ECF No. 20), and restricted Potter "from using the prison's telephone or other means of outside communication [, but allowed] communication with counsel only" (ECF No. 27) in the interim period (i.e., interim order). Potter then moved to vacate this Court's no-contact order imposed a month earlier (ECF No. 33), as well as to amend the Court's interim order imposed on September 24, 2020 (ECF No. 31).
On October 5, 2020, this Court heard arguments on, inter alia, Potter's motion to vacate the August 28th no-contact order and motion to amend the September 24th interim order. After arguments from the government and Potter, the Court took the motions under consideration.
Potter moves to vacate this Court's August 28th no-contact order (ECF No. 33) ("motion to vacate"). Potter also moves to amend this Court's September 24th interim order (ECF No. 31) ("motion to amend").2
In his motion to vacate, Potter asserts that the Court lacks personal and subject-matter jurisdiction to impose conditions on his detention while under the custody of the Bureau of Corrections (ECF No. 33 at 1). Potter also argues that per the rules of statutory interpretation, including inclusio unius est exclusio alterius, the Court does not have authority under 18 U.S.C. § 3142 to impose a no-contact order while he is detained. Id. at 3-4. Potter adds that § 3142 grants the Court authority to impose conditions of release but not conditions of detention. Id. at 4.
In his motion to amend, Potter asserts that the government has not met its burden to demonstrate that the Court has jurisdiction over Potter and his conditions of detention (ECF No. 31 at 2). Potter continues that the Court lacks personal jurisdiction over him and the Bureau of Corrections because he is in local custody as opposed to in federal custody. Id. at 4. Potter also asserts that the Court lacks subject-matter jurisdiction over him to issue the interim order because his detention is controlled by another sovereign (i.e., the Superior Court of the Virgin Islands). Id. Potter seeks to support this point by detailing theneed to issue writs of habeas corpus ad prosequendum each time Potter appears before this Court. Id. Lastly, Potter states that he does not know of authority holding that issuance of a detainer confers personal and subject-matter jurisdiction upon the Court. Id. at 5.
The government opposes the motion to vacate and motion to amend in one brief (ECF No. 36). The government asserts that although Potter is detained in local custody, the Court does not lose its jurisdiction to impose reasonable orders on Potter. Id. at 3.3 The government also argues that whether the Court may issue orders under 18 U.S.C. § 3142 (i.e., the Bail Reform Act) is irrelevant because statutory authority exists elsewhere, including under 18 U.S.C. § 3771 (i.e., the Crime Victims' Rights Act), 18 U.S.C. § 1514, and 28 U.S.C. § 1651 (i.e., the All Writs Act). Id. at 3-5.
Potter replies in one brief (ECF No. 39). Potter argues that since the government differentiates him from the Bureau of Corrections when stating "versus BOC facility and staff," it concedes that the Court cannot impose reasonable orders at this posture of the case. Id. at 1-2. Potters adds that although the government argues that the federal complaints and appointment of counsel confer jurisdiction on him, it does not assert that those events confer jurisdiction over the Bureau of Corrections. Id. at 2.4 Potter also arguesthat the Crime Victims' Rights Act does not justify the no-contact order because the record does not show that the alleged victims want a no-contact order imposed against him. Id.5
Lastly, Potter argues that the no-contact order cannot be justified as a valid temporary restraining order under 18 U.S.C. 1514(a)(1) for three reasons. First, the government does not move for a restraining order under § 1514(a)(1). Second, the government does not show that the alleged victims suffer from harassment or emotional distress. Third, the no-contact order prohibits more than harassment: it prohibits all communication whether "the communication serves a legitimate purpose," "causes substantial emotional distress," or "is part of a serious act or course of conduct." Id. at 4.
At the October 5, 2020 hearing, Potter argued that the Court's orders6 would exceed constitutional norms without some subject-matter limitation or narrow tailoring. Audio Transcript of Hearing, October 5, 2020 at 9:50:10 to 9:51:03.
As a preliminary matter, the Court must address whether it lacks jurisdiction to impose no-contact orders against Potter during pretrial detention (see ECF Nos. 31 at 4-5, 33 at 1, 36 at 3).
Courts may exercise their inherent authority to protect witnesses and victims, which stems from the "'indisputably... broad powers (of the trial judge) to ensure the orderly and expeditious progress of a trial.'" Hicks v. State, 377 P.3d 976, 979 (Alaska Ct. App. 2016) (citing Wheeler v. United States, 640 F.2d 1116, 1122-25 (9th Cir. 1981)) (quotation altered) ( that the lower court had authority to issue no-contact orders during pretrial detention).7 Courts must exercise this inherent authority within the bounds of constitutional and statutory law. Id. at 979.
When a statute neither grants nor denies courts the authority to issue no-contact orders during pretrial detention, courts may exercise their inherent authority to do so in order to protect victims and witnesses. Id. Nevertheless, courts may not interfere with decisions within the discretion of the Department of Corrections, including which facility to house an inmate; no-contact orders that constrain an inmate's conduct do not interfere with the discretion of the Department of Corrections. Id. These types of no-contact orders "fall[] squarely within the [inherent] authority of the courts." Id.
Here, the August 28th no-contact order prohibits Potter "from contacting, either directly or through other persons, any of the individuals named" in the criminal complaint (ECF No. 15 at 1). The September 24th interim order restricts Potter "from using the prison's public telephone or other means of outside communication [, but allows] communication with counsel only" (ECF No. 27 at 1). The Court finds that the August 28th no-contact order and the September 24th interim order constrain Potter's conduct, but do not impose an order on the Bureau of Corrections.
The Court also finds that the relevant statute neither grants nor denies this Court from imposing a no-contact order during pretrial detention. 18 U.S.C. § 3142 mandates that the Court consider four orders to impose on the defendant before trial:
18 U.S.C. § 3142(a)(1)-(4) (2018). Subsection (e) details the fourth prong above:
If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer 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, such judicial officer shall order the detention of the person before trial.
18 U.S.C. § 3142(e). In Potter's recitation of the above subsections of § 3142, he argues that inclusio unius est exclusion alterius supports that the inclusion of conditions of release excludes conditions of detention (ECF No. 33 at 3). The Court does not entertain this argument because it finds that the statute neither grants nor denies it from imposing a no-contact order during pretrial detention.
The Court concludes that it has jurisdiction to impose a no-contact order on Potter...
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