                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         June 10, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                   Nos. 12-4186 & 12-4187
                                                (D.C. Nos. 2:12-CR-00645-TC-2 &
MICHAEL L. TAYLOR,                                    2:12-CR-00502-TC-3)
                                                             (D. Utah)
             Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Mr. Taylor appeals the district court’s order of detention, entered in two

criminal proceedings that resulted from two separate indictments. The first

indictment involves charges related to government procurement fraud, and the second

indictment arose out of Mr. Taylor’s attempt to derail the investigation leading to the

first indictment and his prosecution on those charges. The government requested a


*
       This panel has determined that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
detention hearing pursuant to 18 U.S.C. § 3142(f), arguing that Mr. Taylor should be

detained pending trial. A magistrate judge ordered him detained after a hearing, and

Mr. Taylor sought review and revocation of the detention order from the district

court. The district court also held a hearing, and, considering the matter de novo,

also ordered Mr. Taylor’s detention pending trial. The district court found that Mr.

Taylor presented a flight risk and a danger to the community and that no conditions

of release would reasonably assure Mr. Taylor’s appearance and the safety of the

community.

      The district court’s decision on pretrial detention under 18 U.S.C. § 3142

involves mixed questions of law and fact, which we review de novo, as well as

findings of historical fact, which we accept unless they are clearly erroneous.

United States v. Cisneros, 328 F.3d 610, 613 (10th Cir. 2003). It is the government’s

burden to show by a preponderance of the evidence that no combination of conditions

of release would reasonably assure the defendant’s appearance, and to present clear

and convincing evidence that there are no release conditions that would assure

community safety. Id. at 616; see also 18 U.S.C. § 3142(f).

      We have reviewed the materials filed in this court,1 as well as the district court

filings, and we see no error in the district court’s detention ruling. The government

offered ample evidence that Mr. Taylor presents a flight risk. We agree with the


1
  Mr. Taylor filed a motion for leave to file a reply and submitted the reply brief with
the motion. The motion for leave to file the reply is granted.


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district court that a preponderance of the evidence indicates that there is no

combination of release conditions that would reasonably assure Mr. Taylor’s

appearance as required.

      We also see no error in the district court’s finding that there are no release

conditions that could be imposed on Mr. Taylor that would assure the safety of the

community. The government presented evidence of the extent to which Mr. Taylor

was willing to go to derail the investigation and prosecution of the first indictment

against him. The district court did not err in relying on this clear and convincing

evidence as support for its finding that the safety of the community against further

attempts to obstruct justice cannot be assured by conditions of release.

      Finally, we find no merit to Mr. Taylor’s argument that denial of counsel of

his choice and denial of effective assistance of counsel are grounds to reject the

district court’s order of pretrial detention pursuant to 18 U.S.C. § 3142. Beyond the

fact that considerations of legal representation play no part in the § 3142 analysis, we

note that the district court has, in fact, granted all motions for admission pro hac vice

filed by attorneys of Mr. Taylor’s choosing so that they may represent him. And a

claim of the denial of the Sixth Amendment right to effective assistance of counsel,

with its required showing of prejudice, can be effectively raised and addressed only

after the criminal proceedings are concluded.




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      The order of detention pending trial is affirmed. Although this order and

judgment is not filed under seal, all previous orders in this appeal provisionally

granting motions to seal various documents are hereby made permanent.


                                                Entered for the Court
                                                Per Curiam




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