                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 2 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellant,

    v.                                                   No. 00-2037
                                                     (D.C. No. CR-99-865)
    ALFRED RAY BRANNON,                                    (D. N.M.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before EBEL, PORFILIO, and HENRY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously 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). Therefore,

appellant’s request for oral argument is denied, and the case is 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      On August 4, 1999, defendant Alfred Ray Brannon was indicted and

charged with two counts each of using the mail to threaten a federal judge and

others in violation of 18 U.S.C. § 876 and endeavoring to influence or intimidate

a judicial officer in violation of 18 U.S. C. § 1503. On February 10, 2000, the

district court held a hearing to determine, inter alia, whether Mr. Brannon should

be detained pending trial. The district court entered a summary order releasing

Mr. Brannon and setting trial for March 6, 2000. On February 11, 2000, the

government appealed the district court’s release order and filed an emergency

motion before a single judge for a stay of Mr. Brannon’s release pending appeal.

Circuit Judge Paul J. Kelly granted the government’s motion. The district court

then issued a memorandum opinion stating its reasons for granting Mr. Brannon’s

release. We have jurisdiction under 18 U.S.C. § 3731, and we vacate the stay of

release and affirm the district court.

      The Bail Reform Act of 1984 allows a federal court to detain a person

pending trial if the government can demonstrate by clear and convincing evidence

that no specific conditions of release will reasonably assure the appearance of the

person as required and the safety of any other person and the community.      See 18

U.S.C. § 3142(c). Here, in seeking detention of Mr. Brannon, the government did

not contend that he was a flight risk, but only that he poses a risk to the safety of

other persons and the community. In denying the government’s request to detain


                                          -2-
Mr. Brannon pending his trial, the district court determined that the government

had not met its burden of establishing that, if released, Mr. Brannon would pose a

danger to other persons or the community.         See United States v. Salerno , 481 U.S.

739, 751 (1987) (government must prove by clear and convincing evidence that

detainee presents a threat of danger to any person or the community).

      In making its decision, the district court considered Mr. Brannon’s

appropriate conduct during a short release to attend his mother’s funeral. The

court determined that, although Mr. Brannon had a history of mental and

emotional disorders and a history of uttering “veiled or oblique” threats, the

government could point to no incidents of actual violent behavior except for a few

minor domestic incidents five years earlier. Dist. Ct. Mem. Op. at 2-3.

Moreover, the court concluded that the testimony of family members favoring Mr.

Brannon’s detention was all based on their opinions regarding what Mr. Brannon

“may” or “might” do if released.   Id. at 3. The court found this to be “sheer

speculation.”   Id.

      The court weighed the opinion of the team of mental health professionals

who had evaluated Mr. Brannon during his confinement at the United States

Medical Facility for Federal Prisoners and found it to be less persuasive than the

evaluation of Dr. Anne Rose who based her opinion that Mr. Brannon would pose

no danger if released on tests and cited research. The court also considered Mr.


                                            -3-
Brannon’s obedient and respectful demeanor during the two-hour detention

hearing.

       We accept “the district court’s findings of historical fact which support [a

detention or release] decision, unless they are clearly erroneous.”       United States v.

Kinslow , 105 F.3d 555, 557 (10th Cir. 1997).      1
                                                       Our review of the district court’s

decision “under the ‘clearly erroneous’ standard is significantly deferential.”

Concrete Pipe & Prod. of Cal., Inc. v. Construction Laborers Pension Trust           , 508

U.S. 602, 623 (1993). We determine a finding of fact as clearly erroneous only if,

after a review of all the evidence, we are definitely and firmly convinced that a

mistake has been made.      See Elmore v. Capstan, Inc.      , 58 F.3d 525, 531 (10th Cir.

1995) (quotation omitted). In addition, the Supreme Court has held as a matter of

law that “[w]here there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous. This is so even when the

district court’s findings do not rest on credibility determinations, but are based

instead on physical or documentary evidence or inferences from other facts.”



1
       This court applies de novo review to the mixed question of law and fact of
whether a condition or combination of conditions could be imposed which would
ameliorate the danger posed by a detainee if released.  See Kinslow , 105 F.3d at
557. Because here the district court did not find Mr. Brannon to be a threat to the
safety of any other person and the community, it did not make findings as to
whether a condition or combination of conditions would insure that safety if Mr.
Brannon were released. Therefore, the court’s factual finding as to Mr.
Brannon’s threat of danger is the only issue before this court on appeal.

                                             -4-
Anderson v. City of Bessemer City    , 470 U.S. 564, 573-74 (1985) (citations

omitted), accord United States v. Little   , 60 F.3d 708, 713 (10th Cir. 1995).

         Here, the district court’s factual finding that Mr. Brannon’s release would

not endanger other persons and the community is amply supported by the

evidence. The government’s arguments regarding the district court’s preference

for the opinion of Dr. Rose over that of the other mental health professionals

would require this court to reweigh the evidence and substitute our view for that

of the district court: something we may not do.     See Anderson , 470 U.S. at 573-

75. Therefore, following a careful review of the district court’s decision and the

parties’ respective briefs and giving the appropriate deference to the district

court’s factual decision, we conclude that the court’s finding that Mr. Brannon’s

release would not endanger any other person or the community was not clear

error.

         The February 11, 2000 order staying the district court’s order of release

pending appeal is VACATED. Mr. Brannon’s pro se answer to the government’s

request for an emergency stay is DENIED as moot. The judgment of the United

States District Court for the District of New Mexico is AFFIRMED.

                                                  Entered for the Court

                                                  John C. Porfilio
                                                  Senior Circuit Judge


No. 00-2037, United States v. Brannon


                                            -5-
EBEL, Circuit Judge, dissenting.

      In my judgment, the government has met its burden under § 3142(c) and the

district court’s ruling to the contrary is clearly erroneous. I believe the district

court should consider what special conditions of release are necessary reasonably

to assure the safety of Mr. Brannon and the community. Accordingly, I would

reverse the district court order and remand for consideration of appropriate

conditions of release.
