United States District Court for the District of Columbia
April 1, 2005.
UNITED STATES OF AMERICA,
WALTER ANDERSON, Defendant.
The opinion of the court was delivered by: PAUL FRIEDMAN, District Judge
MEMORANDUM OPINION AND ORDER
On March 16, 2005, after a hearing, this Court entered an
Opinion and Order denying defendant Walter Anderson's motion to
impose conditions of release. The Court explained in some detail
the reasons why it found by a preponderance of the evidence that
Mr. Anderson poses a most serious risk of flight and by a
preponderance of the evidence that there is no condition or
combination of conditions that will reasonably assure the
defendant's appearance as required by the Court.
The defendant filed a motion for reconsideration of his motion
to impose conditions of release on March 21, 2005; the government
filed an opposition on March 22, 2005; the defendant filed a
reply that same day; the government filed a supplemental
opposition on March 23, 2005; and the defendant filed a
supplemental reply on March 24, 2005. In addition, the Court has
received correspondence and copies of correspondence from the
defendant dated March 23 and March 31, 2005, and correspondence
and copies of correspondence from the government dated March 23
and April 1, 2005. The Court understands from the filings that
counsel for the government has consulted with representatives of
the Pretrial Services Agency, but counsel for the defendant has not. The Court also has had
conversations with Janice Bergin of the Pretrial Services Agency.
Defendant's counsel proposes that Mr. Anderson be placed under
house arrest and that his apartment condominium (which is on the
seventh floor of his building) be effectively converted into a
prison monitored by surveillance cameras installed in his
apartment and guarded by a retired or off-duty police officer,
corrections officer or other law enforcement officer 24 hours a
day. Mr. Anderson's lawyer will meet with him only at the
apartment condominium, and Mr. Anderson will not be permitted to
leave the apartment without the permission of Pretrial Services
or the Court; even then he would be accompanied by the former or
off-duty law enforcement officer. The theory behind the proposal
is that Mr. Anderson could not flee because he would be a
prisoner in his own home.
The first problem with Mr. Anderson's proposal is that the
condominium association opposes it. The government says the
opposition is because the condominium association cannot and will
not permit an armed guard to remain outside the door of any
resident's apartment around the clock. The defendant says the
condominium association opposes his proposal only because it is
concerned about media attention. The Court, of course, has no way
of knowing why the condominium association opposes the proposal
or whether the rules or by-laws of the association are an
insurmountable obstacle because they prevent either the
roundthe-clock guard or the security cameras the defendant
proposes to install in his apartment. Suffice it to say that
there is no basis in the record for the Court to conclude that
the lynchpin of the defendant's proposal is workable in his
current residence. The Court also is not entirely certain from the submissions
whether Kroll Inc. or Pickett & Associates LLC will be
responsible for hiring, training, supervising and being held
accountable for the actions or inaction of the off-duty or
retired law enforcement officers which the plan contemplates.
Before approving any such plan, the Court would want at a minimum
to have background checks done on each individual proposed to
provide such services by Pretrial Services or some other
court-related entity and would want the individual officers or,
more importantly, Kroll Inc. or Pickett & Associates LLC, to
assume the responsibility of being the third party custodian for
Mr. Anderson. The Court would want the responsible organization
to post a substantial, forfeitable money bond. In addition, any
plan would have to include the posting of a substantial money
bond by Mr. Anderson himself.
Most importantly, even if the foregoing conditions were
satisfied, the Court is not persuaded that the plan submitted by
the defendant provides any assurance that Mr. Anderson will not
flee. In fact, as today's letter from the government suggests, it
appears that the plan submitted by the defendant does no more
than provide that, in the event of an emergency, the offduty or
retired police officer would contact Pretrial Services and the
United States Marshal's Service. The government notes several
other legitimate concerns:
The Kroll plan proposes that "in the event of an
emergency, the subcontractor security provider will
contact Pretrial Services and the U.S. Marshal's
Service to obtain the names and phone numbers of
persons who should be notified. In an emergency those
persons designated by Pretrial Services and the U.S.
Marshal's Service will be immediately contacted.". . .
However, as we learned from Deputy Director of the
Pretrial Services Office Janice Bergin, it is her
experience that the U.S. Marshal Service will not
divert its resources to respond to a call from a
private security firm. Additionally, Ms. Bergin
explained that should Pretrial Services receive a
call that Mr. Anderson has chosen to not comply with
the conditions of home arrest, Pretrial Services
would simply notify the court within reasonable business hours. In
reality, nobody exists to pursuit [sic] the defendant
should he choose to leave Washington D.C.
The Kroll plan is adequate to ensure that the
condominium is impenetrable, but is woefully
inadequate to ensure that Mr. Anderson will be kept
there against his will. Private security guards are
not trained for the task of detaining an individual
who does not want to remain, are not vetted against
possible corruption or compromise, and do not have
the statutory authority to detain or pursue the
defendant should he decide to leave. . . . Unlike the
U.S. Marshals, private security guards are not agents
of the government, are not subject to the
jurisdiction of this court, do not have the ability
to use force to stop a fleeing suspect, have no
arrest powers, much less the ability to use deadly
force, and are not protected by qualified immunity.
If anything, they are merely subcontractors to Mr.
Anderson, paid for by Mr. Anderson a fact that can
not give this court comfort in ensuring that Mr.
Anderson will appear for trial should he choose not
to do so.
In sum, the defendant has suggested a number of disparate
conditions that have not been drawn together in any sort of
comprehensive plan, and that gives the Court no more comfort than
it had when it issued its Opinion on March 16, 2005 that Mr.
Anderson will not pose a serious flight risk. There is no common
thread that holds the pieces of the proposal together. There is
no assurance that it can be implemented in Mr. Anderson's present
living arrangement. There is no third party custodian that has
assumed the responsibility for assuring Mr. Anderson's
appearance. There has been no consultation or coordination with
Pretrial Services. The problems identified by the government are
For all the foregoing reasons, and for the reasons previously
stated in the Court's Opinion of March 16, 2005, it is hereby ORDERED that defendant Walter Anderson's motion for
reconsideration of his motion to impose conditions of release is
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