United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE.
matter was referred to the undersigned (doc. 113) for a
hearing and report and recommendation on the Government's
Motion to Revoke Defendant's Pre-Trial Release (doc.
111). The undersigned conducted the hearing on May 3, 2017.
The Government moves for revocation of pretrial release under
18 U.S.C. § 3148. The statute provides that where, after
a hearing, probable cause exists to believe the releasee
“has committed a Federal, State, or local crime while
on release;” and where the court finds that no
combination of conditions of release will assure the releasee
will not flee or pose a danger to the safety of any other
person or the community, the order of pretrial release should
be revoked and the defendant should be detained. 18 U.S.C.
§ 3148 (b)(1), (2). The statute further provides that if
probable cause exists to believe the defendant has committed
a felony, “a rebuttable presumption arises that no
condition or combination of conditions will assure that the
person will not pose a danger to the safety of any other
person or the community.” 18 U.S.C. § 3148(b).
standard being probable cause, I find such exists to believe
the defendant has violated Section 454.31, Florida Statutes,
which provides that any person who is knowingly under
suspension from the practice of law by the Florida Supreme
Court, who then practices law or holds himself out as an
attorney at law or qualified to practice in Florida, commits
a felony of the third degree. I also conclude, however, that
despite the defendant's significant missteps, shown not
only by the evidence at this hearing but also by the
defendant's pleas of guilty to the indictment, the
rebuttable presumption has been met, and conditions of
release may be fashioned.
Government's evidence shows that on January 31, 2017,
almost 2 weeks after the defendant's license to practice
law had been suspended by the Florida Supreme Court, the
defendant appeared in Santa Rosa County before Circuit Judge
John Simon and successfully argued on behalf of a client for
summary judgment. Worse, by providing Judge Simon with an
excerpt from a string of emails between himself and The
Florida Bar, the defendant necessarily led Judge Simon to
believe he was still authorized to practice law. In making
this finding, I adopt the representations set out in the
Government's Motion to Revoke at paragraphs 8-9. These
matters have been proven.
defendant's position is further complicated by his
submission to the Bar of required affidavits failing to
disclose either the Santa Rosa County case or the presiding
judge, as required by the Bar.
also appeared before Judge William F. Stone in the Okaloosa
County Circuit Court on February 24, 2017. Defendant and his
solely owned P.A. had been named as defendants in the case
there at issue. Defendant appeared on behalf of himself and
his P.A. I do not find probable cause to believe a felony was
committed in this instance. Defendant was not in a position
to represent the P.A., but, based upon my experience, I
sincerely doubt a prosecuting attorney would bring felony
charges on the facts as presented. Although the P.A. was
named as a defendant in the civil case, the acts of the
defendant, as a lawyer, appear to have been at issue in the
case. Unfortunately, the defendant acted unwisely and even
deceptively by failing to disclose to the Bar the Okaloosa
case, the name of the presiding judge, and the name of
opposing counsel. Were the sole issue here the
defendant's dishonesty, he could not prevail.
finding conditions of release may be fashioned, I have
considered the rebuttable presumption and the factors set
forth in 18 U.S.C. Section 3142(g). I recognize the statute
on its face pertains to release pending trial, but the
factors enumerated at Section 3142(g)(1)-(4) apply where the
judicial officer acts to determine whether conditions of
release can be fashioned “that will reasonably assure
the appearance of the person as required and the safety of
any other person and the community. . .”
3142(g). More to the point, Section 3148(b)(2)
requires the court in this revocation proceeding to consider
the Section 3142(g)factors in determining whether conditions
of release may be fashioned. I also realize that even where
the rebuttable presumption is met, it nonetheless remains in
the case to be considered with all other evidence. U.S.
v. Hurtado, 779 F.2d 1467, 1479 (11th Cir. 1985).
crimes to which the defendant has pled, although clearly
crimes of dishonesty, are not among the crimes enumerated in
Section 3142(g)(1). Through the collection of crimes in that
subsection, Congress sought to place the focus on crimes of
violence, crimes involving minor victims, and crimes
involving firearms and explosive devices.
defendant has pled guilty, the weight of the evidence in the
case is strong. 18 U.S.C. § 3142(g)(2). Such cannot be
statutory sections concerning “history and
characteristics” of the defendant, and “the
nature and seriousness of the danger to any person or the
community that would be posed by the person's release,
” are of particular importance here. 18 U.S.C. §
3142(g)(3), (4). Accordingly, this report and recommendation
will carefully consider those provisions in light of the
evidence presented at the hearing.
judicial officer is directed, under the heading of history
and characteristics of the defendant, to consider “the
person's character, physical and mental condition, family
ties, employment, financial resources, length of residence in
the community, community ties, past conduct, history relating
to drug or alcohol abuse, criminal history, and record
concerning appearance at court proceedings. . .” 18
U.S.C. § 3148(g)(3)(A). Defendant admitted during his
allocution that his character is not what he hoped it would
be. The underlying charges are all crimes of dishonesty, and
the indication is that substantial monetary loss was
occasioned by his criminal acts. The violation which I have
found also involves dishonesty in representations made, and
disclosures not made, to the court and to the Bar. Although
this factor weighs against defendant on the whole, I have
considered the character testimony of Ted Borowski, a
Pensacola lawyer and longtime professional and personal
acquaintance of defendant, as somewhat tempering the judgment
that might be made solely upon consideration of the acts with
which the defendant has been charged.
health of the defendant does not appear to be a factor here.
Mental condition, though, most certainly is. Defendant is now
under the care of a mental health professional and has begun
to confront the substantial shortcomings that have led him to
where he is today. I am persuaded the defendant will continue
with his treatment pending sentencing, and that incarceration
at this point would erase the possibility of such treatment.
Based on statements of counsel, defendant recognizes that the
day of reckoning is coming.
statement to the court, the defendant emphasized his
wife's condition and his need to be with his wife in the
time he has remaining before sentencing. Although little
would be gained by a detailed account, the defense has shown
the defendant's wife and the couple's adult children
have suffered greatly as a result of the defendant's
transgressions. I find the defendant has close ties to his
family and has realized the harm, emotional and financial, he
has caused them. Family ties weigh heavily in favor of
imposing conditions of release.
employment factor cuts both ways. The evidence shows the
defendant is involved in a title company, Gulf Title. He has
every reason to make efforts that might allow that business
to persevere, even after sentencing in this case. The
evidence might allow an inference that defendant engages in
some practice of law through the title company, but the proof
as to that is not sufficient. As a related ...