                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2030
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United
      v.                                * States District Court for the
                                        * District of Minnesota.
Troy Kisling,                           *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: June 6, 2003

                                 Filed: July 1, 2003
                                  ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

      Troy Kisling (Kisling) appeals his pretrial detention. Kisling is charged with
one count of conspiracy and multiple counts of mail fraud in violation of 18 U.S.C.
§§ 371 and 1341 (2000). After hearing evidence and finding Kisling posed a risk of
flight, the magistrate judge1 ordered Kisling’s pretrial detention. On appeal of the
pretrial detention order, the district court2 affirmed.

      Kisling requests we independently assess the merits of his application for
release on bail pending trial. See United States v. Maull, 773 F.2d 1479, 1486-88
(8th Cir. 1985) (en banc). Kisling contends the magistrate judge and the district court
erroneously determined the factual situation warranted pretrial detention.

      Additionally, Kisling argues the magistrate judge’s and the district court’s
opinions were erroneously based upon the wrong burden of proof. Specifically,
Kisling argues the correct burden of proof for the government on the issue of
detention based on risk of flight is clear and convincing evidence. Kisling is wrong.

      Only if the government shows by clear and convincing evidence that no
      release condition or set of conditions will reasonably assure the safety
      of the community and by a preponderance of the evidence that no
      condition or set of conditions under subsection (c) will reasonably
      assure the defendant’s appearance can a defendant be detained before
      trial.

United States v. Orta, 760 F.2d 887, 891 & n.20 (8th Cir. 1985) (en banc) (internal
footnotes omitted); see also 18 U.S.C. § 3142(c), (e)-(f).3

      1
      The Honorable J. Earl Cudd, United States Magistrate Judge for the District
of Minnesota.
      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      3
        Perhaps counter-intuitively, the government’s evidentiary burden is lesser to
prove a flight risk than to prove risk of harm. The statute specifies the burden for risk
of harm, clear and convincing, but is silent with regard to flight risk, implying use of
the standard used in other pretrial proceedings, preponderance of the evidence. See
Orta, 760 F.2d at 891 n.20.

                                          -2-
       The magistrate judge determined Kisling was a risk of flight based on the
following facts. Kisling’s mother told federal agents that neither she nor any member
of the family wishes to have continuing association with Kisling. Kisling was
unemployed and had no substantial assets in the community. Kisling evaded service
of process by the Federal Trade Commission (FTC) after he observed the June 2000
FTC raid of his business from across the street. Kisling failed to appear for a
scheduled jury trial in a February 2001 domestic assault charge, for which a bench
warrant remained outstanding at the time of the detention hearing. In December
2002, when federal agents went to Kisling’s apartment to serve his arrest warrant he
failed to open the door, requiring agents to procure a key from the apartment
manager.

       Based on the above facts, the magistrate judge determined Kisling had
attenuated community ties and a history of fleeing his legal troubles. Kisling
attempted to supplement the evidence adduced at the detention hearing by attempting
to secure employment and family support from jail and by explaining the
circumstances surrounding events relied upon by the magistrate judge. However, the
magistrate judge’s opinion remained unchanged. The district court agreed with the
magistrate judge. After reviewing the district court’s order, we agree the government
met its burden to show by a preponderance of the evidence that no condition or set
of conditions would reasonably assure Kisling’s appearance for trial. Therefore, we
affirm.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -3-
