     16-1148
     United States v. Williams

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                BARRINGTON D. PARKER,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               16-1148
16
17       JOHN TODD WILLIAMS,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        KENNETH J. MONTGOMERY,
22                                             Kenneth J. Montgomery PLLC,
23                                             Brooklyn, New York.
24
25       FOR APPELLEE:                         DANIEL B. TEHRANI, Assistant
26                                             United States Attorney, for
27                                             Preet Bharara, United States
28                                             Attorney for the Southern

                                                  1
 1                              District of New York, New York,
 2                              New York.
 3
 4        Appeal from an order of the United States District
 5   Court for the Southern District of New York (Torres, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        John Todd Williams appeals from an order of the United
12   States District Court for the Southern District of New York
13   (Torres, J.), entered April 12, 2016, which denied him bail
14   pending trial on one count of conspiracy to commit wire
15   fraud in violation of 18 U.S.C. § 1349. We review for clear
16   error a district court’s bail determination, including its
17   findings of fact pertaining to risk of flight, danger to the
18   community, and the adequacy of any proposed bail conditions,
19   see United States v. Ferranti, 66 F.3d 540, 542 (2d Cir.
20   1995), and we will not reverse “unless on the entire
21   evidence we are left with the definite and firm conviction
22   that a mistake has been committed,” United States v.
23   Sabhnani, 493 F.3d 63, 75 (2d Cir. 2007) (internal quotation
24   marks omitted); see also United States v. LaFontaine, 210
25   F.3d 125, 130 (2d Cir. 2000). Because we discern no clear
26   error, we affirm.
27
28        In seeking pretrial detention, the government bears the
29   burden of establishing risk of flight by a preponderance of
30   the evidence and dangerousness by clear and convincing
31   evidence. See 18 U.S.C. § 3142(f); Sabhnani, 493 F.3d at
32   75. The government is not, however, bound by the rules of
33   evidence, see 18 U.S.C. § 3142(f), and may proceed by
34   proffer, see, e.g., Ferranti, 66 F.3d at 542 (citing United
35   States v. Salerno, 481 U.S. 739, 743 (1987)).
36
37        In assessing a defendant’s risk of flight and
38   dangerousness, Congress has directed courts to consider: (1)
39   “the nature and circumstances of the offense charged,
40   including whether the offense is a crime of violence”; (2)
41   “the weight of the evidence against the person”; (3) the
42   “history and characteristics of the person,” which includes
43   “the person’s character, physical and mental condition,
44   family ties, employment, financial resources, length of
45   residence in the community, community ties, past conduct,
46   history relating to drug or alcohol abuse, criminal history,
47   and record concerning appearance at court proceedings”; and

                                  2
 1   (4) the “nature and seriousness of the danger to any person
 2   or the community that would be posed by the person’s
 3   release.” 18 U.S.C. § 3142(g).
 4
 5        If the Government proves risk of flight or
 6   dangerousness, then the court is permitted to order pretrial
 7   detention, but only if, after a hearing, it concludes that
 8   “no condition or combination of conditions will reasonably
 9   assure the appearance of the person . . . and the safety of
10   . . . the community.” 18 U.S.C. § 3142(e). “Under this
11   statutory scheme, ‘it is only a limited group of offenders
12   who should be denied bail pending trial.’” Sabhnani, 493
13   F.3d at 75 (quoting United States v. Shakur, 817 F.2d 189,
14   195 (2d Cir. 1987)) (internal quotation marks omitted).
15
16        The district court concluded that Williams has a risk
17   of flight based on (1) “[t]he strength of the evidence”
18   against him, “coupled with the significant sentence he
19   potentially face[d]”; (2) his flagrant disregard for “court
20   orders of both civil and criminal cases”; (3) his attempts
21   “to evade oversight and detection from government agents by
22   using aliases and registering his companies in the names of
23   other people”; and (4) his “extensive criminal history,
24   parole violations, and engagement in criminal activity while
25   under court-ordered supervision.”1 Gov’t Ex. G at pp.4-5.
26
27        In reviewing the defendant’s criminal history, the
28   district court emphasized that it was “struck by the fact
29   that a number of these matters involve deceit.” Id. at
30   pp.5-6. The district court also concluded that there are no
31   reasonable conditions of release that can be set to assure
32   the appearance of the defendant, and that the defendant’s
33   proposed bail package was insufficient. All of these


         1
              The district court listed the offenses as theft by
     taking in 1986; driving under the influence, driving on a
     suspended license, and possession of dangerous drugs in
     1987; driving under the influence and driving on a suspended
     license in 1995; possession of marijuana in 1999; financial
     card fraud in 2000; driving under the influence of alcohol
     and theft by deception in 2002; driving on a suspended
     license in 2006; aggravated assault in 2006; no driver’s
     license in 2008; and numerous probation violations over the
     years. In addition, in 1999 Mr. Williams failed to appear
     in court in a case involving shoplifting and financial card
     theft offenses.
                                  3
 1   findings were supported in the record, and so the district
 2   court did not commit clear error.
 3
 4        For the foregoing reasons, and finding no merit in the
 5   defendant’s remaining arguments, we hereby AFFIRM the order
 6   of the district court.
 7
 8                              FOR THE COURT:
 9                              CATHERINE O’HAGAN WOLFE, CLERK
10




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