United States District Court, D. Kansas
MEMORANDUM AND ORDER RULING ON DEFENDANT'S MOTION
FOR AMENDMENT OF ORDER DEYNING MOTION TO AMEND CONDITION OF
D. CRABTREE UNITED STATES DISTRICT JUDGE
Michelle Belair has filed a motion seeking “amendment
of [an] order denying motion to amend condition of pretrial
release.” Doc. 145. Essentially, this motion asks the
assigned district judge to eliminate a condition of release
that Magistrate Judge Sebelius imposed in the original Order
Setting Conditions of Release (Doc. 28). Later, when Ms.
Belair moved to modify the disputed condition, Judge Sebelius
reconfirmed his conclusion that the targeted condition was
warranted. See Doc. 144.
Belair wants the court to review and narrow this condition.
See Doc. 145. Specifically, she asks the court to
modify the condition forbidding her from having contact with
her co-defendants so that it won't apply to Jose Ruiz.
Id. at 2. Mr. Ruiz is one of Ms. Belair's
co-defendants in this conspiracy case, a potential witness,
and her conditions explicitly forbid her from having contact
with him. Id.; see also Doc. 28 at 2
court conducted a hearing on Ms. Belair's review motion
on October 16, 2017. Ms. Belair appeared personally, and her
counsel, J. Steven Schweiker, represented her at the hearing.
Assistant United States Attorney Jared Maag appeared for the
United States. Ms. Belair's counsel declined to present
evidence, but Ms. Belair provided some information in
response to the court's questions. Ms. Belair's
counsel also provided contextual information via an oral
proffer. Namely, counsel proffered that Ms. Belair and Mr.
Ruiz had become engaged on February 14, 2017-about a month
before the grand jury returned the Indictment against them.
Also, counsel proffered that Ms. Belair and Mr. Ruiz had
lived together for a time before they were charged and
detained in this case (though Judge Sebelius quickly ordered
Ms. Belair released subject to specified conditions).
Finally, the proffer asserted that Ms. Belair and Mr. Ruiz
began seeing one another in October 2016 and that her
daughter has a close relationship with Mr. Ruiz. As the court
understands the facts, Mr. Ruiz is not the father of this
Belair's Rule 5 hearing on May 19 of this year, the
government moved for pretrial detention. Doc. 11. Six days
later, at a detention hearing, the government renewed this
request. But the court quickly rejected the government's
position, ordering Ms. Belair released subject to pretrial
conditions. Doc. 25 (“[T]he government's motion for
pretrial detention is DENIED.”). About three months
later, Ms. Belair asked Judge Sebeluis to modify her
conditions, making many of the same arguments she makes now.
Again, the government objected. Finally, when Ms. Belair
filed the current motion, the government filed a written
Response opposing any modification of the condition reaching
Mr. Ruiz. See Doc. 146. But at the October 16
hearing, AUSA Maag announced that the government's
position differed from the one it had presented in its
written Response. Mr. Maag explained that he recently had
learned that another AUSA had agreed to stand silent on Ms.
Belair's motion to modify this condition. Honoring this
agreement by his predecessor, Mr. Maag withdrew the
government's Response to the current motion. This leaves
the court in a peculiar position: a defendant has moved to
lighten her restrictions and the United States declines to
take a position on the request.
the October 16 hearing, the United States Probation Officer
charged with supervising Ms. Belair advised that Ms.
Belair's earlier statements-in the Officer's opinion-
contradicted her current position about her relationship with
Mr. Ruiz. Namely, the Officer explained that Ms. Belair had
informed her in a May 2017 interview that she and Mr. Ruiz
had begun dating only in February 2017 (and not in October
2016, as Ms. Belair now contends).
Ms. Belair argues that the condition prohibiting contact with
Mr. Ruiz, a potential witness, wrongfully encroaches on her
First Amendment right of association. See Doc. 145
at 2 (citing United States v. Arzberger, 592
F.Supp.2d 590, 604 (S.D.N.Y. 2008)). No question can exist
about the foundation of Ms. Belair's argument. The right
of association is “one of the foundations of our
society.” Arzberger, 592 F.Supp.2d at 603
(quoting NAACP v. Claiborne Hardware Co., 458 U.S.
886, 933 (1982)).
one might guess, Ms. Belair's argument simplifies the
analysis far too much. Her argument neglects a variety of
Supreme Court cases recognizing the need to balance
associational rights with other equally compelling interests.
For instance, in United States v. Salerno, 481 U.S.
739 (1987), the Supreme Court explained, “While we
agree that a primary function of bail is to safeguard the
courts' role in adjudicating the guilt or innocence of
defendants, we reject the proposition that the Eighth
Amendment categorically prohibits the government from
pursuing other admittedly compelling interests through
regulation of pretrial release.” Id. at 753.
Consistent with this recognition, the Bail Reform Act confers
authority for courts to impose “specified restrictions
on personal associations” and “avoid all contact
. . . with a potential witness who may testify concerning the
offense.” 18 U.S.C. § 3142(c)(1)(B)(iv) & (v).
So, Ms. Belair's motion requires the court to balance a
variety of competing and compelling interests.
court is mindful that courts properly can impose restrictions
to protect a variety of interests-and not just associational
rights. For example, the court may restrict a defendant's
release rights to protect the safety of individuals or the
community, or to assure the defendant's appearance for
trial. 18 U.S.C. § 3142(c)(1)(B). Putting a finer point
on things, the court likewise can forbid contact with
specified individuals to ensure that a defendant does not
threaten the judicial process by, intimidating witnesses, for
example. Salerno, 481 U.S. at 753. But in the main,
those concerns do not manifest themselves here. Mr. Ruiz is
detained and the government has passed on its opportunity to
convince the court that Ms. Belair might intimidate Mr. Ruiz
from testifying against her.
leaves one interest that contact between Ms. Belair and Mr.
Ruiz arguably might imperil: the integrity of the judicial
process. In a conspiracy case, courts must evaluate whether
pretrial contact among alleged coconspirators will permit
them to rehearse or fabricate testimony, or allow one alleged
conspirator to serve as a courier of information to the
others. Naturally, any such conduct would threaten “the
courts' role in adjudicating the guilt or innocence of
defendants.” Id. at 753. Assessing the gravity
of this risk here is difficult. The government's decision
to stand down on Ms. Belair's motion limits the
court's access to basic information about the
government's theory of the case, and largely eliminates
any understanding the court might develop about the roles
allegedly played by the conspirators.
this default does not mean that the court cannot consider its
own experience in conspiracy cases. Applying this experience
to the competing concerns, the court decides to balance the
competing interests by granting Ms. Belair's motion in
part and denying it in part. Specifically, the court modifies
the condition imposed by the Order Setting Conditions of
Release (Doc. 28) in this fashion: The condition imposed by
¶ (8)(j) of this Order Setting Conditions of Release is
modified to: (a) permit Ms. Belair to have telephone
contact with Mr. Ruiz so long as Mr. Ruiz remains detained;
and (b) forbid Ms. Belair and Mr. Ruiz from discussing any
aspect of the conduct charged by the Indictment, evidence
tending to prove or disprove that conduct, and the criminal
offenses charged by the Indictment. This modified restriction
will permit associational contact between the two and thus
pursue common purposes via “lawful means.”
NAACP, 458 U.S. at 933.
the contact to telephone conversations likely will minimize
the temptation to engage in conduct that might threaten the
integrity of the judicial process. The court's experience
with pretrial detainees establishes that telephone
conversations to and from detention facilities often are
recorded. Most defendants apprehend this possibility. Indeed,
telephone lines used by pretrial detainees usually contain an
explicit warning that telephone conversations on them are
recorded and preserved. The court believes that this
recording function will inhibit and, the court trusts,
eliminate any temptation to engage in conduct prohibited by
Ms. Belair's modified condition.
court also finds that limiting Mr. Ruiz and Ms. Belair's
contact to telephone conversations will not materially affect
the quality of their associational contact with one another.
Even if the court completely eliminated Ms. Belair's
restriction against contact with Mr. Belair, she could not
have private contact visits with Mr. Ruiz. Instead, the court
understands, anyone visiting Mr. Ruiz where currently
detained, at most, could talk with him through a Skype-like
system. And while the court realizes that a telephone visit
will not allow Ms. Belair and Mr. Ruiz to see one another,
the court cannot avoid this consequence while taking
necessary steps to preserve the integrity of the judicial
process. One cannot reasonably doubt that the government
“may engage in some conduct that incidentally inhibits
protected forms of association.” Fighting Finest,
Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (quoted
in Arzberger, 592 F.Supp.2d at 603). The court finds
that its modified condition strikes the proper balance among
the various competing interests. It also comports with the
general duty to impose “the least restrictive further
condition, or combination of conditions” that
reasonably will protect the community's safety,
defendant's appearance for trial, and other interests
important to the judicial system. See 18 U.S.C.
during the October 16 hearing, Ms. Belair asserted that her
restrictions prohibit her from driving her daughter to visit
Mr. Ruiz at the detention facility housing him. This is
incorrect. So that it is clear, nothing in the court's
conditions of release prohibits Ms. Belair from driving her
daughter to the parking lot of the detention facility ...