     Case: 19-10055      Document: 00515168875         Page: 1    Date Filed: 10/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                      No. 19-10055                           FILED
                                                                      October 22, 2019
                                                                        Lyle W. Cayce
UNITED STATES OF AMERICA,                                                    Clerk

              Plaintiff - Appellee

v.

JOHN O. GREEN,

              Defendant - Appellant


                   Appeal from the United States District Court
                       Northern District of Texas, Dallas
                             USDC No. 3:18-CR-356-3


Before BARKSDALE, STEWART, and COSTA, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant John O. Green filed this interlocutory appeal after
the district court imposed a no-firearms pretrial release condition subsequent
to Green’s indictment on charges of tax evasion. For the following reasons, we
remand for proceedings consistent with this opinion.
                     I. Procedural & Factual Background
       Green is an Idaho state representative residing in Rathdrum, Idaho,
with his wife, daughter, and two other family members. In July 2018, a grand



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 19-10055
jury in the Northern District of Texas charged Green with tax evasion in
violation of 18 U.S.C. § 371, along with two alleged co-conspirators who were
Green’s clients. The indictment alleges that Green conspired with his two
clients to evade their income taxes by concealing their income in his IOLTA
(Interest on Lawyers Trust Accounts) bank accounts and then using those
accounts to pay his clients’ personal expenses. Trial was originally set for
September 23, 2019, but was recently reset for January 6, 2020.
      During Green’s initial appearance in August 2018, the magistrate judge
ordered that he be released pending trial subject to certain conditions,
including a requirement that he not possess a firearm, destructive device, or
other weapon. This release condition was not imposed on Green’s two clients.
Green did not object to the no-firearms condition when it was imposed.
      On September 28, 2018, Green and his co-defendants filed a joint motion
to modify their release conditions restricting their communication with each
other. The hearing on this motion was held on October 31, 2018, and the
magistrate judge ultimately granted the motion. During the motion hearing,
Green also moved for a modification of the no-firearms release condition via
handwritten note. Green argued that he wanted a less-restrictive condition of
release, i.e., the allowance of one rifle to protect his family against the wild
animals that inhabit the area near his home, especially during the
wintertime. 1 The magistrate judge declined to rule on the motion at that time
to afford the government an opportunity to prepare and respond.
      After taking the matter under advisement, the magistrate judge denied
Green’s motion to remove his no-firearms release condition. In her order, the
magistrate judge explained that 18 U.S.C. § 3142(f) guided the court’s
consideration of the request and that section required Green to establish that


      1   Bears are indigenous to the rural region where Green’s home is located in Idaho.
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                                     No. 19-10055
there was new information, not known to him at the time of the initial
detention hearing, that was material to the release condition he sought to
modify. Green knew at the time of his original detention hearing that he lived
in an area inhabited by wild animals in the winter, so he did not provide new
information that was unavailable to him at the time the condition was
originally imposed. Additionally, the magistrate judge stated, “Green is subject
to supervision by Pretrial Services. Officers may make unannounced visits to
his home to ensure he is complying with all the conditions of his release. The
condition prohibiting firearms is necessary to reasonably assure the safety of
those Pretrial Services officers.”
      Green filed objections to the no-firearms condition with the district court
and on January 8, 2019, the district court affirmed the condition. Green noticed
his interlocutory appeal with this court a week later.
                                  II. Discussion
      On appeal, Green advances abuse-of-discretion and constitutional
arguments against the no-firearms pretrial release condition. This court
reviews an order imposing a pretrial release condition for abuse of discretion.
See United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988). The district
court is required by 18 U.S.C. § 3142(c)(1)(B) to impose the “least restrictive . . .
condition, or combination of conditions” that “will reasonably assure the
appearance of the person as required and the safety of any other person and
the community.” In imposing these conditions, 18 U.S.C. § 3142(g) requires the
court to take into account the available information concerning “(1) the nature
and circumstances of the offense charged”; “(2) the weight of the evidence
against the person; (3) the history and characteristics of the person,” including
“the person’s character, physical and mental condition, family ties,
employment, financial resources, length of residence in the community,
community ties, past conduct, history relating to drug or alcohol abuse,
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                                 No. 19-10055
criminal history, and record concerning appearance at court proceedings” and
“(4) the nature and seriousness of the danger to any person or the community
that would be posed by the person’s release.”

      “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) (citing United States v. Fortna, 769 F.2d 243, 249 (5th Cir. 1985)). Here,
the district court affirmed in full the magistrate judge’s pretrial release no-
firearms condition in a two-line electronic order, without providing any
discussion as to how the condition was proper under the statute. Moreover, the
record is not developed enough at this point to provide an independent ground
for our affirming the condition. See United States v. Palacios, 928 F.3d 450, 457
n.3 (5th Cir. 2019) (observing that the court of appeals “may affirm . . . on any
grounds supported by the record.” (quoting Palmer v. Waxahachie Indep. Sch.
Dist., 579 F.3d 502, 506 (5th Cir. 2009))). The district court’s summary
affirmance of the magistrate judge’s order without making an “independent
determination,” see Rueben, 974 F.2d at 585, in support of the pretrial release
condition was an abuse of discretion. See United States v. Hare, 873 F.2d 796,
798 (5th Cir. 1989). For these reasons, we remand for the district court to
conduct additional fact-finding concerning Green’s pretrial release no-firearms
condition. See McConnell, 842 F.2d at 107. Because we remand on this basis,
we need not reach the merits of Green’s constitutional arguments.

                               III. Conclusion

      This case is REMANDED to the district court for proceedings consistent
with this opinion.


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