                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         July 29, 2009
                             FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                         Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                          No. 09-3179
    v.                                          (D.C. No. 5:09-CR-40008-JAR-1)
                                                            (D. Kan)
    SCOTT D. BECKER,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


         Scott D. Becker appeals the district court’s denial of release pending trial

on charges of conspiracy and theft, embezzlement, or misapplication by a bank

officer in violation of 18 U.S.C. § 656. The United States has elected not to file a

response brief on appeal. We have jurisdiction pursuant to 18 U.S.C. § 3145(c)

and 28 U.S.C. § 1291, and we affirm.



*
       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). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
      The Bail Reform Act requires a magistrate judge or district court judge to

order a defendant detained before trial if the judge determines “that no condition

or combination of conditions will reasonably assure the appearance of the person

as required and the safety of any other person and the community.” 18 U.S.C.

§ 3142(e). This appeal presents two issues: (1) whether the district court erred in

determining that Becker presents a flight risk and (2) whether the district court

erred in concluding that there are no conditions of release that would reasonably

assure his appearance. Claims of erroneous detention present questions of mixed

law and fact that this court reviews de novo. United States v. Cisneros, 328 F.3d

610, 613 (10th Cir. 2003). The district court’s findings of historical fact are

reviewed for clear error. See id. It is the government’s burden to prove risk of

flight by a preponderance of the evidence. Id. at 616.

      The district court held two evidentiary hearings and considered the

appropriate factors regarding risk of flight and release on conditions. See

18 U.S.C. § 3142(g). We agree with the district court that the analysis primarily

turns on Mr. Becker’s history and characteristics. See id. § 3142(g)(3). Our

review of the record confirms that the facts cut both ways, with some favoring

Mr. Becker and others favoring the United States. Ultimately, the propriety of

pretrial release boils down to a credibility assessment. The district court

concluded that Mr. Becker is a flight risk and rejected the proffered conditions of

release based largely on the court’s negative evaluation of Mr. Becker’s

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credibility, which determination finds support in the record. “We give the district

court’s determinations regarding the credibility of witnesses great deference.”

Wessel v. City of Albuquerque, 463 F.3d 1138, 1145 (10th Cir. 2006) (quotation

omitted). This is a close case, but in light of the deference due to the district

court’s credibility assessment, the judgment is AFFIRMED.


                                                      Entered for the Court

                                                      Per Curiam




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