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U.S. v. ANDERSON

United States District Court for the District of Columbia


April 1, 2005.

UNITED STATES OF AMERICA,
v.
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 substantial.

  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 DENIED.

 

SO ORDERED. [Page 1, ]
20050401

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