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United States v. Persaud

April 5, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ESTHER PERSAUD, DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Defendant Esther Persaud appeals the February 28, 2007 Decision & Order of Magistrate Judge Homer denying her objections to disclosing information to Pretrial Services. Defendant requested an expedited appeal, which this Court granted. At Defendant's request, this matter was made returnable on April 9, 2007. Defendant also sought, and received, a stay of Judge Homer's Order. Defense counsel has now informed the Court that, despite having asked for an expedited appeal and having personally selected the return date, he is unavailable on April 9 or the rest of that week. Because the Court does not wish to unnecessarily delay this case, the Court will dispense with oral argument and now issues this Decision and Order on Defendant's appeal.

I. Reasonableness of the Conditions of Release

Defendant was released on her own recognizance subject to an order setting forth conditions of release that included the following specific conditions:

(X)(i) You shall provide the probation officer with access to any requested financial information.

(X)(ii) You shall not open additional lines of credit without the approval of the probation officer.

(X)(iii) . . . [I]f deemed necessary by your probation officer or Court, you may be directed to notify your employer of risks that may be occasioned by your criminal record, personal history or characteristics, and the Court further authorized the probation officer to confirm your compliance with this notification requirement.

Defendant contends that these conditions are not the least restrictive conditions that will reasonably assure her appearance and the safety of other persons and the community. Judge Homer found that these conditions were necessary to ensure that Defendant would appear for these proceedings and not cause further economic harm.

Judge Homer held, and Defendant disputes, that economic harm qualifies as a danger within the contemplation of the Bail Reform Act. This Court agrees with Judge Homer. See United States v. King, 849 F.2d 485, 487 n.2 (11th Cir. 1988); United States v. Provenzano, 605 F.2d 85, 95 (3d Cir. 1979) ("[A] defendant's propensity to commit crime generally, even if the resulting harm would be not solely physical, may constitute a sufficient risk of danger to come within the contemplation of the Act."); see also United States v. Giordano, 370 F. Supp.2d 1256, 1270 (S.D. Fla. 2005).

The Court further agrees with Judge Homer that, in light of the nature of the allegations against Defendant, the requirements that she maintain employment, that she notify her employer of the risks occasioned by her history and characteristics, and that she not open any new lines of credit constitute the least restrictive further conditions, or combination of conditions, that will reasonably assure Defendant's appearance and ensure the safety of other persons and the community.

However, the Court fails to see why the extensive financial disclosures are reasonably necessary to ensure Defendant's appearance or to protect the community. Judge Homer found that the disclosures were necessary to identify Defendant's credit status and her ability to incur and pay additional lines of credit. This requirement is not necessary and is not the least restrictive because Defendant has been ordered not to open any new lines of credit during the pendency of this action. Ensuring compliance with this condition can be accomplished in a less restrictive means; namely, by requiring Defendant to execute a general release or consent form that does not specify specific banks, accounts, or documents and that allows Pretrial Services to obtain her credit report and other financial information on a regular basis. By removing this condition, Defendant's contention that the financial disclosure requirement violates her Fifth Amendment privilege becomes moot. To the extent Defendant might object to a general release form as a violation of her Fifth Amendment privilege, provided Pretrial Services uses a release form that substantially conforms to the type used in Doe v. United States, 487 U.S. 201 (1988) (not making reference to specific accounts, not identifying specific documents, not identifying particular banks), such an argument was squarely rejected by the Supreme Court in Doe.*fn1

II. Fifth Amendment Claims

Although the Court has removed the financial disclosure requirement, Defendant, nonetheless, contends that the requirement that she disclose her employment violates her Fifth Amendment privilege. To establish a fifth amendment violation, Defendant must demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication. In re Grand Jury Subpoena, 826 F.2d 1166, 1168 (2d Cir.1987). Because Defendant is obligated to speak pursuant to a court order, the compulsion element is clearly present here. Id. at 1169. Judge Homer further correctly concluded that providing information about her employment would be testimonial.

Having found that the consent forms at issue here are compelled and testimonial, the Court must next consider whether the information requested would be self-incriminating. Judge Homer held that the demands are not because Pretrial Services could not release the information to others. Defendant argues that there are exceptions under which 18 U.S.C. ยง 3153(c) permits the disclosure of information to others, including ...


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