UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
April 5, 2007
UNITED STATES OF AMERICA, PLAINTIFF,
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. § 3153(c) permits the disclosure of information to others, including for purposes of compiling presentence reports, to the U.S. Attorney's office, and to law enforcement agencies.
The Court agrees with Judge Homer that the restrictions on disclosure of any information obtained by Pretrial Services adequately protects Defendant's Fifth Amendment privilege. Pursuant to the § 3153 and the Confidentiality Regulations, information obtained by Pretrial Services is inadmissible on the issue of guilt in a criminal proceeding unless the proceeding is a prosecution for a crime committed while in the course of obtaining pretrial release or a prosecution for failure to appear for the criminal justice proceeding with respect to which pretrial services were provided. Further, as a general rule, pretrial services officers are prohibited from disclosing pretrial services information absent an order by a judicial officer upon good cause shown. The Court finds that these restrictions and safeguards on disclosure, together with Defendant's right to raise her Fifth Amendment privilege at trial if such information is offered against her, and the government's assurances that it has no objection to the Court excluding any disclosures made to Pretrial Services from its determination of any sentence in this case, adequately protects her right against self-incrimination. Stated otherwise, Defendant will preserve her right to challenge in a court of law the use of such statements as violations of her Fifth Amendment rights. In other words, Defendant must answer the employment questions, but, by answering, she will not be waiving her Fifth Amendment rights with respect to her criminal prosecution or some future criminal prosecution.
For the foregoing reasons, the Court modifies the conditions of pretrial release such that she is not required to complete the Form 48 financial disclosures, but, if requested by Pretrial Services, must executed general releases that conform with this Order and the Supreme Court's decision in Doe that enable Pretrial Services to obtain credit reports and/or other financial information concerning Defendant by the independent labor of its officers. In all other regards, Defendant's appeal is dismissed.
IT IS SO ORDERED.