                                                                            FILED
                               FOR PUBLICATION                               JUL 17 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10259

              Plaintiff - Appellee,              D.C. No. 5:14-cr-00390-LHK-1
                                                 (PSG)
 v.                                              Northern District of California,
                                                 San Jose
QUAN PHAM HOWARD,

              Defendant - Appellant.             ORDER



                   Appeal from the United States District Court
                     for the Northern District of California
                     Lucy H. Koh, District Judge, Presiding

                     Submitted to Motions Panel July 17, 2015

Before: SCHROEDER, CANBY, and KOZINSKI, Circuit Judges.

PER CURIAM:

      This is an appeal from the district court’s revocation of appellant’s pretrial

release order. We have jurisdiction pursuant to 18 U.S.C. § 3145(c) and 28 U.S.C.

§ 1291.

      We review the district court’s factual findings concerning the danger that

appellant poses to the community under a “‘deferential, clearly erroneous
standard.’” United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (quoting

United States v. Townsend, 897 F.2d 989, 994 (9th Cir. 1990)). The conclusions

based on such factual findings, however, present a mixed question of fact and law.

Hir, 517 F.3d at 1086. Thus, “the question of whether the district court’s factual

determinations justify the pretrial detention order is reviewed de novo.” Id. at

1086-87 (citations omitted).

      The district court may enter an order of revocation and detention if, after a

hearing, the court: (1) finds that there is either “probable cause to believe that the

person has committed a Federal, State, or local crime while on release” or “clear

and convincing evidence that the person has violated any other condition of

release”; and (2) finds that “based on the factors set forth in [18 U.S.C. § 3142(g)],

there is no condition or combination of conditions of release that will assure that

the person will not flee or pose a danger to the safety of any other person or the

community” or “the person is unlikely to abide by any condition or combination of

conditions of release.” 18 U.S.C. § 3148(b)(1) & (2).

      The nature of the conduct on which the district court based the revocation

order is not clear from the record. In particular, it is not clear whether the district

court found that there is probable cause to believe that appellant has committed a

crime while on release. Nor is it clear whether the district court found that there is


                                            2
clear and convincing evidence that appellant violated any other condition of

release. We therefore remand the matter to the district court for clarification and

for further findings, to the extent further findings are necessary.

      REMANDED.

      The mandate shall issue forthwith.




                                           3
                                 Counsel Listing

Daniel L. Barton, Nolan Barton Bradford & Olmos LLP, Palo Alto, California, for
Defendant-Appellant.

Michelle Rodriguez, Special Attorney to the U.S. Attorney General, United States
Department of Justice, Eastern District of California, Sacramento, California, for
Plaintiff-Appellee.




                                         4
                                                                             FILED
                                                                              JUL 17 2015

                                                                          MOLLY C. DWYER, CLERK
KOZINSKI, Circuit Judge, concurring:                                       U.S. COURT OF APPEALS



      I join my colleagues in remanding for further findings. But, I’m troubled by

the condition of release that defendant has been found to have violated. As a

condition for staying out of jail pending trial, defendant was ordered to “have no

contact with any employee of the USPS except his supervisors,” and the order was

later expanded to prevent him from “mak[ing] contact with any postal service

employees, former or current.” Defendant’s counsel unwisely consented to these

conditions, but they strike me as unjustified and probably unconstitutional.

      According to our law, there are only two considerations the district court

may take into account in determining whether to release a defendant, and what

condition to impose on such release: (a) ensure that he is not a flight risk; and (b)

ensure that he is not a danger to the community. 18 U.S.C. § 3142(c)(1).

Preventing the defendant from talking to individuals who are potential witnesses at

trial falls into neither of these categories. It certainly does not show a propensity to

flee nor, of itself, is it evidence of being a danger to the community. Merely

talking to a potential witness, even about the subject of his likely testimony, is not

illegal. The government does this again and again with every potential witness, as

long and as often as it wishes. It seems wholly inappropriate and unfair to give the

government unhindered access to witnesses yet throw the defendant in the slammer
                                                                                  page 2
for doing the same. Defendant, no less than the government, has a legitimate

interest in discussing the case with the witnesses, testing their recollections and

helping them articulate the events in terms favorable to his case. When the

government does this, we call it witness prep; there is no justification for calling it

witness tampering when the defendant does precisely the same.

      It is possible, of course, that one side or the other will step beyond witness

preparation and onto witness intimidation or tampering. Both the defendant and

the government can be guilty of such practices. See Alex Kozinski, Preface:

Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc., at iii, vii, xxiii n.117

(2015). But I see no justification for precluding only one side from talking to the

witnesses. Defendants should not be presumed to engage in witness tampering or

intimidation; only if there is actual proof of tampering or intimidation should the

district judge get involved. Here there is no such proof. All we’ve been told is

that, as to one witness, defendant suggested a version of the facts consistent with

his theory of the case. As the district court found, “Mr. Howard . . . [was] putting

pressure on a potential witness. It may not be saying lie. It may not be saying

testify X, Y, Z, but I think that is pressure on a potential witness.” The district

court seems to define “putting pressure” as any discussion with the witness of his

potential testimony. This is far too broad.
                                                                                page 3
      I see nothing wrong with Howard’s behavior. If he is not encouraging

witnesses to lie or testify in particular ways, how is this “pressure”? Why isn’t he

entitled—just as well as the government—to test the witness’s memory and let him

know the facts as he (Howard) remembers them? If this amounts to pressuring

witnesses, it is far less than the pressure the government often puts on witnesses

when it tries to prep them to testify in its favor. The government does such things

all the time. Id. If we’re going to call what defendant did here tampering, I doubt

there are more than a handful of prosecutors or police in the land who have not

been guilty of witness tampering.

      Judges have no dog in this fight. Our duty is to apply the rules fairly and

equally to both sides. If Howard is to be prevented from talking to the post office

witnesses, then there must be an equal prohibition applied to the government. But

if the government is going to be allowed to talk to the witness, defendant must

have equal access. It’s only fair.

      I would therefore disapprove—and disregard—any condition on Howard’s

liberty that is not tied closely two the two statutory requirements for the granting of

pretrial release, and any condition involving access to evidence of witnesses that is

not enforced with equal vigor against the government—unless there is a specific

showing that the defendant has engaged in witness intimidation or tampering, as
                                                                             page 4
those terms are strictly defined by the criminal laws prohibiting such conduct. The

government here has shown nothing close, so I would order Howard released at

once pending further fact-finding by the district court.
