United States v. Mobley

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 19, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-3234 (D.C. No. 6:17-CR-10142-EFM-1) BOGDANA ALEXANDROVNA (D. Kan.) MOBLEY,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, Chief Judge, LUCERO and MATHESON, Circuit Judges. _________________________________

Bogdana Alexandrovna Mobley has been charged with international parental

kidnapping in violation of 18 U.S.C. § 1204. She appeals from the district court’s

order affirming the magistrate judge’s pretrial detention order. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3145(c), we remand for further

proceedings.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. I. Background

Mobley is a 36-year-old woman with dual citizenship in Russia and the United

States. She has one child from her first marriage and two children from her second

marriage. In April 2014, in the midst of contentious divorce and custody proceedings

with her second husband, Mobley took her children from Kansas to Russia; at the

time, she was pregnant with their second child together, who was born in Russia.

Mobley lived there with the children for over three years in violation of court orders

issued in her domestic case, which gave her husband joint legal and shared residential

custody pending the dissolution of their marriage. In September 2017, Mobley left

the children with relatives and returned to file child-support paperwork in Kansas,

where she was arrested by the FBI. The children remain in Russia.

At Mobley’s initial appearance before the magistrate judge, the government

moved for detention under 18 U.S.C. § 3142(f)(1)(E) of the Bail Reform Act.1 The

magistrate judge conducted a detention hearing and ordered pretrial detention. The

detention order, which takes the form of a checklist, concludes that the government

proved by a preponderance of the evidence that no condition or combination of

conditions will reasonably assure Mobley’s appearance as required.

Mobley filed a motion to reconsider detention, which referenced “a

comprehensive release plan” under which she would live with her parents in the

United States and surrender her passports to the probation office. Aplt. App. at 15.

1 In previous briefs, the government stated that it also moved for detention under § 3142(f)(2)(A) and (f)(2)(B), but the magistrate judge’s order does not reference those provisions. 2 The magistrate judge denied the motion to reconsider, citing the strong weight of the

evidence against Mobley and her failure to convince the court that she is not a flight

risk. Mobley then sought review of the detention order through a motion for

revocation under 18 U.S.C. § 3145(b). The district court held a hearing and orally

affirmed the magistrate judge’s order after finding that Mobley presents a serious

flight risk. Mobley now appeals the detention order.

II. Analysis

The Bail Reform Act, 18 U.S.C. § 3142, sets out the framework for evaluating

whether pretrial detention is appropriate. In general, persons charged with a crime

are not detained pretrial. See id. § 3142(b); see also United States v. Salerno,

481 U.S. 739, 755 (1987) (“In our society liberty is the norm, and detention prior to

trial or without trial is the carefully limited exception.”). But a defendant may be

detained pending trial if a judicial officer finds that “no condition or combination of

conditions will reasonably assure the appearance of the person as required and the

safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). A judicial

officer may make such a finding only after holding a hearing under § 3142(f). United

States v. Cisneros, 328 F.3d 610, 616 (10th Cir. 2003). The government bears the

burden of proving risk of flight by a preponderance of the evidence and

dangerousness to any other person or the community by clear and convincing

evidence. Id.

Under § 3142(g), the judicial officer must consider four factors as part of the

evaluation: “(1) the nature and circumstances of the offense charged, including

3 whether the offense . . . involves a minor victim”; “(2) the weight of the evidence

against the person”; (3) “the history and characteristics of the person”; and (4) “the

nature and seriousness of the danger to any person or the community that would be

posed by the person’s release.” 18 U.S.C. § 3142(g). A detention order must include

“written findings of fact and a written statement of the reasons for the detention,”

id. § 3142(i), but a reviewing district court can state its reasons for detention “in

writing, or orally on the record,” Fed. R. App. P. 9(a). A district court conducts a

de novo review of the magistrate judge’s order. Cisneros, 328 F.3d at 616 n.1.

Mobley opposes the pretrial detention order on three grounds: (1) the

government did not meet its burden to establish that no condition or combination of

conditions could assure her appearance at trial; (2) the district court did not properly

consider the § 3142(g) factors and whether any release conditions could assure

Mobley’s appearance at trial; and (3) the district court failed to consider Mobley’s

statutory affirmative defense that she “was fleeing an incidence or pattern of

domestic violence,” see 18 U.S.C. § 1204(c)(2), when it considered “the weight of

the evidence against” her under § 3142(g)(2).

We review the district court’s ultimate pretrial detention decision de novo

because it presents mixed questions of law and fact. Cisneros, 328 F.3d at 613.

However, we review the underlying findings of fact for clear error. Id. Applying this

standard, we conclude the district court’s ruling was insufficient under § 3142.

The record does not contain a transcript of the initial detention hearing, so we

are unable to assess whether the government met its burden to establish that no

4 condition or combination of conditions could assure Mobley’s appearance at trial. It

is clear from the record, though, that neither the magistrate judge nor the district

court provided sufficient findings to justify pretrial detention.

The initial detention order does not adequately address the § 3142(g) factors or

Mobley’s proposed release conditions. The magistrate judge checked a box

indicating that the government proved “[b]y a preponderance of the evidence that no

condition or combination of conditions will reasonably assure the defendant’s

appearance as required,” Aplt. App. at 13, with very little supporting analysis and no

discussion of why the proposed release conditions could not assure Mobley’s

appearance at trial. The order contains only scattered, cursory references to the first

three § 3142(g) factors and does not mention the fourth. See, e.g., id. at 14 (“The

nature of these charges weigh in favor of the Government for purposes of

detention.”) (first factor); id. at 13 (box checked next to “[w]eight of evidence

against the defendant is strong”) (second factor); id. at 14 (“Defendant is alleged to

have fled the jurisdiction of a competent court. As the Court does not have sufficient

information about the Defendant’s background, it is concerned she will also flee this

Court’s jurisdiction.”) (third factor). In addition, there is no mention of Mobley’s

affirmative defense that she was “fleeing an incidence or pattern of domestic

violence,” see 18 U.S.C. § 1204(c)(2), despite its potential effect on the weight of the

evidence against her.

The district court’s consideration of the § 3142(g) factors during the review

hearing was also incomplete. It affirmed the detention order based solely on the

5 nature of Mobley’s offense (i.e., a flight out of the country), her history of

noncompliance with court orders, and the court’s fear that she would flee again. It

did not consider whether any release conditions would assure Mobley’s appearance at

trial—even though she offered to submit to electronic monitoring, to have her parents

pay a bond, and to turn in both her American and Russian passports. It declared only

that it was “not a huge fan of electronic monitoring because [it sees] those cut off all

the time,” Aplt. App. at 54. It then referenced Mobley’s “demonstrated history to not

comply with court orders and to flee,” together with her Russian citizenship, and

stated that no conditions or combination of conditions would assure her appearance

in court. Id. at 60.

The district court also erred in failing to consider Mobley’s affirmative

defense to international kidnapping as part of its analysis of the second § 3142(g)

factor. At the hearing on the motion to revoke, Mobley clearly articulated her

position that prior abuse by her ex-husband constituted an affirmative defense to the

kidnapping charge. She referenced two police reports filed against him (one on

August 3, 2013, for rape, and one on December 5, 2013, for domestic violence) and

claimed those reports were substantiated by photographs of bruised wrists and

evidence of threats. The district court did not evaluate whether the allegations of

abuse might support a valid affirmative defense. To the contrary, it repeatedly

discounted their relevance, referring to Mobley’s flight as “self-help” and “vigilante

justice.” Aplt. App. at 38-39, 42; see also id. at 46-48, 55 (admonishing that Mobley

6 should have pursued abuse charges against her ex-husband in the American court

system, “not flee the country”).

III. Conclusion

For the foregoing reasons, we remand for the district court to issue findings of

fact and to explain the reasoning behind the detention decision or, alternatively, to

order Mobley’s pretrial release subject to appropriate conditions.

Entered for the Court Per Curiam