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United States v. Colbert

United States District Court, N.D. Florida, Pensacola Division

May 3, 2017




         This 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).

         The 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.

         The 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.

         The 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.

         Defendant 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.

         In 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).[1] 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).

         The 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.

         Because defendant has pled guilty, the weight of the evidence in the case is strong. 18 U.S.C. § 3142(g)(2). Such cannot be disputed.

         The 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.

         The 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.

         Physical 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.

         In his 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.

         The 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 ...

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