                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                       February 27, 2017
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 16-1495
                                                   (D.C. No. 1:15-CR-00397-RBJ-1)
ANDREW JOSEPH WORKMAN,                                        (D. Colo.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, BACHARACH, and MORITZ, Circuit Judges.
                   _________________________________

      Andrew Joseph Workman challenges the denial of his motion for release

pending the government’s appeal of the district court’s order suppressing the

evidence against him. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3145(c), we affirm the district court’s order.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I

      A federal grand jury returned an indictment against Mr. Workman, charging

him with both receipt and possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(2) & (a)(5)(B).

      The magistrate judge conducted a detention hearing. He noted the rebuttable

presumption of detention applies to Mr. Workman’s charges. The magistrate judge

then found that Mr. Workman presented a risk of nonappearance in light of the nature

of the charges, his “lack of contacts to the community, his current living situation

(having been asked to leave his apartment by his roommate), and the information

from the file concerning suicidal ideation.” Supp. App. at 3. He concluded no

combination of conditions could reasonably assure Mr. Workman’s appearance,

“especially in light of the presumption of detention in this case.” Id.

      Mr. Workman later moved to suppress all the evidence against him on Fourth

Amendment grounds. The district court granted the motion and the government

appealed that determination to this court in Appeal No. 16-1401. Mr. Workman

sought release pending the government’s appeal, arguing the magistrate judge’s

findings supporting detention were no longer valid. Specifically, he contended that,

“[b]ecause the evidence in this case is suppressed, the presumption [of detention] has

shifted back in favor of release.” App. at 26–27 (emphasis omitted). Mr. Workman

also noted the strength of the evidence against him had been undermined and

maintained that specific release conditions, such as residence at a halfway house,

would mitigate the magistrate judge’s concerns that he was a flight risk. With regard

                                           2
to suicidal ideation, he argued that any concern over his mental health would be

“properly addressed by a condition of release mandating mental health treatment and

medication.” App. at 28.

       The district court denied the motion, holding that the factors the magistrate

judge relied upon had not changed. In so holding, the court noted:

       I accept that placement in a halfway house with mental health treatment
       would provide Mr. Workman a place to live and would potentially
       reduce the risk of flight. However, it would not eliminate the latter risk,
       nor would it eliminate Judge Hegarty’s concern about suicidal ideation.
       The Court was informed by government counsel that Mr. Workman has
       attempted suicide twice.

App. at 47. The court found that the suppression of evidence was the only change,

but concluded under an unpublished decision of this court that “it is not improper for

the district court to consider the suppressed evidence in evaluating the weight of the

evidence for detention purposes while the appeal is pending.” App. at 47 (citing

United States v. Pina-Aboite, 97 F. App’x 832, 835 (10th Cir. 2004) (per curiam)).

The court noted that courts are split over the constitutionality of the nationwide

warrant at issue in this case.

                                           II

       We review the district court’s ultimate pretrial detention decision de novo

because it presents mixed questions of law and fact; however, we review the

underlying findings of fact for clear error. United States v. Cisneros, 328 F.3d 610,

613 (10th Cir. 2003). “A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court, on review of the entire record, is left with


                                            3
the definite and firm conviction that a mistake has been committed.” United States v.

Gilgert, 314 F.3d 506, 515 (10th Cir. 2002) (brackets and internal quotation marks

omitted). We review the district court’s findings with significant deference,

cognizant that “our role is not to re-weigh the evidence.” Id. at 515–16.

      Where the government takes an appeal from a suppression order, we generally

treat the defendant as we would a pretrial defendant. 18 U.S.C. § 3143(c). The Bail

Reform Act sets out the framework for evaluating whether pretrial detention is

appropriate. See id. § 3142. The charges against Mr. Workman establish a rebuttable

presumption “that no condition or combination of conditions will reasonably assure

[his appearance] as required and the safety of the community.” Id. § 3142(e)(3)(E).

Mr. Workman bears the burden of producing some evidence to rebut the presumption.

See United States v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991) (per curiam). At

the same time, “the burden of persuasion regarding risk-of-flight and danger to the

community always remains with the government.” Id. at 1354–55.

      Mr. Workman presents three arguments in support of his release.1 First, he

contends the district court committed legal error by asking whether conditions of

release would “eliminate” the risk of flight instead of following § 3142(e), which

merely asks whether conditions of release would “reasonably assure” appearance.

      1
         Mr. Workman argued before the district court that the suppression order
resulted in a presumption in favor of his release, thus changing the rebuttable
presumption found in § 3142(e)(3)(E). On appeal, he notes in a footnote that, though
he maintains this argument, the “issue does not appear to be material to this appeal.”
Mem. Br. at 7. We consider this argument abandoned. See United States v. Seminole
Nation of Okla., 321 F.3d 939, 946 n.5 (10th Cir. 2002) (refusing to consider an issue
a party did not brief on appeal).
                                          4
Opening Br. at 5 (emphasis omitted). Mr. Workman next insists that it is improper to

consider his past suicide attempts when deciding whether he is a flight risk. Finally,

he argues weight of the evidence is no longer helpful in deciding whether he will

appear because it hinges solely on the government’s success on appeal.

       We cannot find fault with the district court’s determination that the

government met its burden or the manner in which the court reached its decision.

While the court discussed whether the magistrate judge’s original concerns had been

eliminated, it did so in the context of an overarching point — that Mr. Workman’s

situation had not changed. Indeed, the court expressly noted that the suppression of

evidence is the only thing that changed. Mr. Workman is therefore mistaken about

whether the district court complied with § 3142. We conclude the district court did

not commit legal error.

       We also do not fault the district court for considering Mr. Workman’s past

suicide attempts. Though he may well be correct that “[t]here is no indication

Congress was concerned with a defendant’s risk of suicide when crafting” the § 3142

factors, Opening Br. at 8, Congress was certainly concerned with a defendant’s risk

of nonappearance. Though such a risk is normally conceived in terms of a

defendant’s willful flight of the charges against him, suicide is, technically speaking,

one way that Mr. Workman could not appear in court. See United States v. Cody,

498 F.3d 582, 591 (6th Cir. 2007) (recognizing that it is “logical” to extend rules that

“treat suicide as a form of flight”). The district court is thus within its discretion to

consider suicidal ideation and previous suicide attempts in determining whether it

                                             5
can reasonably assure Mr. Workman’s appearance. To be sure, we might view the

question differently if the district court considered only Mr. Workman’s suicidal

ideation, but it also considered “Mr. Workman’s lack of contacts with the community

[and] the fact that he does not have a non-custodial place to live.” App. at 47. It is

far from certain that Mr. Workman’s placement in a halfway house with mental

health treatment would sufficiently mitigate his risk of flight by suicide. In any

event, the district court’s finding on this issue is factual. Deferring to such findings

as we must, our review of the entire record does not leave us “with the definite and

firm conviction that a mistake has been committed.” Gilgert, 314 F.3d at 515

(internal quotation marks omitted). We therefore see no basis to overturn the district

court.

         Mr. Workman also argues that the district court erred in weighing the evidence

once the court granted the motion to suppress. But the district court was entitled to

balance the evidence as it did. Though we might have weighed the evidence

differently, the district court did not clearly err in its balancing of the evidence.

                                            III

         Mr. Workman produced no evidence supporting his release; he rested the bulk

of his argument on the district court’s suppression order. We are satisfied that the

district court carefully considered the parties’ positions presented in conjunction with

the relevant statutory factors and the detention presumption, and it made the required




                                             6
findings to support its pretrial detention order. We affirm.


                                            Entered for the Court
                                            Per Curiam




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