Kobayashi detention order

Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 1 of 14 PageID #: 128

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA, ) MAG. NO. 13-00207 LEK-RLP
)
Plaintiff, )
)
vs. )
)
BENJAMIN PIERCE BISHOP, )
)
Defendant. )
_____________________________ )

ORDER GRANTING MOTION TO REVOKE
MAGISTRATE JUDGE’S DETENTION ORDER, FILED MARCH 27, 2013

Before the Court is Defendant Benjamin Bishop’s

(“Defendant”) Motion to Revoke Magistrate Judge’s Detention

Order, filed March 27, 2013 (“Motion”). Plaintiff United States

of America (“the Government”) filed its memorandum in opposition

on March 28, 2013. This matter came on for hearing on March 28,

2013. Appearing on behalf of the Government was Assistant United

States Attorney Kenneth M. Sorenson, and appearing on behalf of

Defendant was Birney B. Bervar, Esq. Defendant was present in

custody. After careful consideration of the Motion, supporting

and opposing memoranda, and the arguments of counsel, Defendant’s

Motion is HEREBY GRANTED because the Court concludes that there

is a combination of release conditions that can be imposed to

address the risk of flight, and the safety of any person and the

community.


BACKGROUND

Defendant was arrested on March 15, 2013, pursuant to a

sealed criminal complaint filed by the Government on March 14,

2013. [Dkt. nos. 1, 10.] On March 18, 2013, he made his initial

court appearance and was appointed legal counsel to represent

him. The Government, on that same date, filed its Motion to

Detain Defendant Without Bail. [Dkt. no. 4.] A hearing on the

Government’s detention motion was scheduled for March 22, 2013,

and Defendant was placed in custody.

On March 19, 2013, the criminal complaint was unsealed.

[Dkt. no. 9.] In the complaint, Defendant is charged with two

counts: Count I - Communication of Information Related to the

National Defense to a Person Not Entitled to Receive It, in

violation of 18 U.S.C. § 793(e); and Count II - Unlawful

Retention of Document and Plans Relating to the National Defense,

in violation of 18 U.S.C. § 793(e). [Dkt. no. 1.]

The detention hearing was held on March 22, 2013,

during which further information was requested by the magistrate

judge and the hearing was continued to March 25, 2013. [Dkt. no.

11.] At the second detention hearing, the Government provided

documents for the magistrate judge to review in camera. The

detention motion was thereafter granted and Defendant was ordered

detained.

On March 27, 2013, the magistrate judge issued his

Detention Order Pending Trial in which he concluded that


Defendant must be detained because the testimony and information

submitted at the hearing established by “clear and convincing

evidence” that “[t]here is a serious risk that the defendant will

endanger the safety of another person or the community.” [Dkt.

no. 14.] Defendant filed his appeal of this detention order that

same day. [Dkt. no. 15.]

In the instant Motion, Defendant argues that the

Government originally sought detention because of three reasons:

“(1) Serious risk defendant will flee; (2) Danger to other person

or community; and (3) Serious risk obstruction of justice”.

[Mem. in Supp. of Motion at 1.] He submits that the magistrate

judge found that Defendant did not pose a flight risk, questioned

whether any danger to the community or of obstruction of justice

existed because Defendant did not have access to any classified

information, and gave the Government additional time to provide

evidence of Defendant’s dangerousness. Defendant contends that,

unless he is charged with one of the offenses enumerated in 18

U.S.C. § 3142(f), the Government cannot seek his detention unless

it can first demonstrate that there is a serious risk he will

flee or attempt to obstruct justice. Further, Defendant argues,

pretrial detention is not authorized solely on proof of danger to

the community and the danger alleged by the Government, that he

could disclose classified information from memory, is unsupported

by legal authority. [Id. at 3.]

The Government, on the other hand, contends that at the


detention hearing on March 22, 2013, the magistrate judge did not

address the Government’s argument that Defendant is a flight

risk, but instead focused on the Government’s assertion that, if

released, Defendant posed a danger to the community because he

“could easily recollect and communicate national defense

information.” [Mem. in Opp. at 3.] As a result, the magistrate

judge gave the Government until March 25, 2013 to submit

additional information, and “asked the parties to address the

case of United States v. Wen Ho Lee, 79 F. Supp. 2d 1280 (D. N.M.

1999), where the district court found the defendant was a danger

to the community and ordered him detained because classified

computer tapes that had been under his control were missing.”

[Id. at 3-4.] The Government argues that Defendant is a serious

flight risk because (1) he is charged with serious crimes

involving communicating national defense information to a foreign

national and removing classified information from the United

States Pacific Command, partly at the direction of his

girlfriend, who is a foreign national; (2) there is substantial

evidence against him because he has admitted to agents that he

disclosed classified information to his girlfriend, classified

materials were recovered from his residence and computer, and the

Government has direct evidence of Defendant’s email and telephone

communications with his girlfriend; (3) his character is

questionable because, at the time of the alleged offense, he had

a top level security clearance and was obligated to report all


contacts with foreign nationals, but instead engaged in an

extramarital affair with a foreign national, deceived his

employers about this relationship, lied to agents in a statement

given after his arrest regarding this relationship, and

disregarded security oaths he took and non-disclosure agreements

he signed regarding classified national defense information,

including by failing to report his arrest for soliciting a

prostitute in Honolulu in 2003; and (4) he is a world traveler

and speaks a foreign language. In short, the Government submits,

Defendant has the motivation, experience, resources and ability

to leave the United States. [Id. at 5-8.]

In addition, the Government is highly critical of the

proposed third party custodian and argues that Defendant’s

advanced age and vacation plans to be in Norway for three weeks

in April 2013 do not lend assurance that Defendant will not flee

or communicate classified information while on pretrial release.

It argues that Defendant also presents a danger to the community

because of the information that he knows about cyber defense

technologies for use within the U.S. Pacific Command theater of

operations and Department of Defense.1 Defendant has held top

level security clearance since 2003 and “has the ready ability to

recall and disclose sensitive national security information which

1
In support, the Government provided the declaration of
Major General Anthony Crutchfield, Chief of Staff, U.S. Pacific
Command (“Crutchfield Decl.”). [Mem. in Opp., Exh. A.] The
Government also provided a substantial number of documents for
this Court’s in camera review prior to the hearing.


will long survive his loss of access.” [Mem. in Opp., Attachment

A (Government’s Supplemental Submission of Materials and Argument

in Support of Detention), at 2 (citing Crutchfield Decl.).] If

released, the Government argues, Defendant will be able to

“‘refresh his recollection’ with material provided to him for his

defense.” [Id. at 6.]

Finally, the Government submits that conditions of

release such as a third-party custodian and electronic monitoring

are woefully inadequate to address the danger to the community

because Defendant has a history of disregarding security oaths

and obligations, and these conditions cannot guard against

“digital age” threats of undetected communication via secret

email, Facebook and Twitter accounts, or disposable cell phones.

[Id.]

STANDARD

A magistrate judge’s order under 18 U.S.C. § 3142(e) is

reviewed de novo. United States v. Eischeid, 315 F. Supp. 2d

1033, 1035 (D. Ariz. 2003)(citing United States v. Koenig, 912

F.2d 1190, 1192-93 (9th Cir. 1990). “The court must ‘review the

evidence before the magistrate [judge]’ and any additional

evidence submitted by the parties, ‘and make its own independent

determination whether the magistrate [judge’s] findings are

correct, with no deference.’” Id. (quoting Koenig, 912 F.2d at

1193.)


DISCUSSION

The Bail Reform Act of 1984 sets out the procedure for

pre-trial release and detention. It generally favors the

pretrial release of defendants on personal recognizance or

unsecured appearance bond, unless the Court determines “that such

release will not reasonably assure the appearance of the person

as required or will endanger the safety of any other person or

the community.” 18 U.S.C. § 3142(b).

A detention hearing can only be held under certain

circumstances. Section 3142(f) provides, in material part, as

follows:

(f) Detention hearing. The judicial officer
shall hold a hearing to determine whether any
condition or combination of conditions set forth
in subsection (c) of this section will reasonably
assure the appearance of the such person as
required and the safety of any other person and
the community -

(1) upon motion by the attorney for the Government
in a case that involves -

(A) a crime of violence . . .;

(B) an offense for which the maximum
sentence is life imprisonment or death;

(C) an offense for which a maximum term of
imprisonment of ten years or more is
prescribed in the Controlled Substances Act
. . .;

(D) any felony if such person has been
convicted of two or more offenses described
in subparagraphs (A) through (C) of this
paragraph, or two or more State of local
offenses that would have been defenses
described in subparagraphs (A) through (C) of
this paragraph if a circumstance giving rise


to Federal jurisdiction had existed, or a
combination of such offenses; or

(E) any felony that is not otherwise a crime
of violence that involves a minor victim or
that involves the possession or use of a
firearm or destructive device (as those terms
are defined in section 921), or any other
dangerous weapon, or involves a failure to
register under section 2250 of title 18,
United States Code; or

(2) Upon motion of the attorney for the Government
or upon the judicial officer’s own motion, in a
case that involves -

(A) a serious risk that such person will
flee; or

(B) a serious risk that such person will
obstruct or attempt to obstruct justice, or
threaten, injure, or intimidate, or attempt
to threaten, injure, or intimidate, a
prospective witness or juror.

18 U.S.C. § 3142(f)(1)-(2).

Here, pursuant to Section 3142(f)(2)(A), the Government

filed the motion to detain on the basis that Defendant is a

serious flight risk. The Government is not seeking detention

pursuant to any provision of Section 3142(f)(1). This is a

distinction with particular significance, as Congress clearly

defined a group of defendants for which “a rebuttable presumption

arises that no condition or combination of conditions [of

release] will reasonably assure the safety of any other person

and the community . . . .” 18 U.S.C. § 3142(e)(2). The

Government concedes that Defendant does not fall within this

category.


Thus, this Court starts its analysis with the mandate

that a judge “shall order the pretrial release” of a defendant on

personal recognizance or unsecured appearance bond unless this

release “will endanger the safety of any other person or the

community” or “will not reasonably assure” the defendant’s

appearance. 18 U.S.C. § 3142(b). If the Court finds that such

release is not appropriate, then pretrial release shall be

ordered “subject to the least restrictive further condition, or

combination of conditions, that such judicial officer determines

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(c)(1)(B). After a hearing is held, should the

Court “find[] 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[,]” then it must

order detention. 18 U.S.C. § 3142(e).

Section 3142(g) sets forth the factors that the Court

must consider to determine whether conditions can be fashioned to

assure that Defendant appears as required, and address the safety

of any other person and the community. 18 U.S.C. § 3142(g). The

Court examines each in turn:

The first factor is the nature and circumstances of the

offense charged. 18 U.S.C. § 3142(g)(1). This factor weighs in

favor of release. Admittedly, the offenses in the criminal

complaint are serious, but the same can be said of all felony

Case 1:13-mj-00207-LEK-RLP Document 25 Filed 04/22/13 Page 10 of 14 PageID #:
137

charges. Even for certain types of charges that may be repugnant

(e.g., child pornography or human trafficking) or notorious

(e.g., corruption or bribery), there are reasonable conditions of

release that can be fashioned. The same holds true for

Defendant, even in light of the nature and circumstances of the

specific offenses alleged against him.

The second factor is the weight of the evidence against

Defendant. 18 U.S.C. § 3142(g)(2). In Defendant’s case, this

factor is essentially married to the dangerousness factor and

does weigh in favor of detention. Based upon the Government’s

representations, the weight of the evidence is substantial.

Defendant has apparently given statements that the Government has

described as admissions, and inculpatory documents were found in

Defendant’s home and on his computer.

The third factor is Defendant’s history and

characteristics, which include character, length of residence in

the community, drug or alcohol abuse history, criminal history,

and community ties. 18 U.S.C. § 3142(g)(3). This factor weighs

largely in favor of release. Based upon the Government’s

representations about Defendant’s admission that he violated his

security oaths and non-disclosure agreements, the Court concludes

Defendant’s character is such that he is unlikely to comply with

conditions of release that rely exclusively on his cooperation.

In light of Defendant’s history, however, the Court believes that

conditions of release can be fashioned. Defendant has resided in

138

this community for a significant period of time, he owns a

residence in Hawai`i, he has substantial community ties through

his church, and he does not have a history of substance abuse,

mental illness, violence, or significant criminal arrests and

convictions.2

The fourth and final factor is the nature and

seriousness of the danger to any other person or the community

that would be posed by Defendant’s release. 18 U.S.C.

§ 3142(g)(4). The Government argues that Defendant’s extensive

knowledge of classified national defense information places

public security at risk. [Mem. in Opp., Attachment A, at 4

(“Nothing short of the security of the Pacific, and U.S. Forces

in the Pacific, are placed at risk by the nature of the

information known to this defendant.”) (citing Crutchfield Decl.

at 4-7).] As such, the Government concludes, “there are no

conditions that can reasonably assure this Court that he will

abide by his security oaths, or by the Court’s conditions.” [Id.

at 5.] This factor weighs entirely in favor of detention, as the

risk to the community is both substantial and extremely serious.

The Bail Reform Act does not, however, “[authorize]

pretrial detention without bail based solely on a finding of

dangerousness.” United States v. Twine, 344 F.3d 987, 987 (9th

Cir. 2003)(citing United States v. Byrd, 969 F.2d 106, 110 (5th

2
Defendant’s criminal history appears to be limited to one
conviction for solicitation of prostitution.

139

Cir. 1988) (“There is no doubt that the Act places a risk on

society: a defendant who clearly may pose a danger to society

cannot be detained on that basis alone. In such instances, the

Act requires that society’s interest be safeguarded only by a set

of conditions imposed on his release.”); United States v. Ploof,

851 F.2d 7, 11 (1st Cir. 1988)(“We believe, however, the

structure of the statute and its legislative history make it

clear that Congress did not intend to authorize preventive

detention unless the judicial officer first finds that one of the

§ 3142(f) conditions for holding a detention hearing exists.”);

United States v. Himler, 797 F.2d 156 (3d Cir. 1986)).

None of the § 3142(f) conditions are present here.

Preventative detention therefore is inappropriate, unless the

Court finds that there are no conditions of release can be

imposed that reasonably address both flight risk and the danger

to any other person and the community. This Court does not so

find. It finds instead that conditions which reasonably address

both flight risk and dangerousness do exist. While the

Government is correct that only detention can guarantee that

Defendant will neither flee nor communicate his knowledge of

national security matters in a harmful manner (particularly in

light of the fact that the Government has instructed the Federal

Detention Center in Honolulu to isolate Defendant in the Special

Holding Unit), the charges that the Government has chosen to

bring requires only that the Court find that there are release

140

conditions that reasonably address flight risk and danger.

The Court finds that placing Defendant in Mahoney Hale,

a community detention facility, with restrictive conditions will

reasonably address the risk of non-appearance and danger to any

other person and the community. These restrictive conditions

shall include, but not be limited to, the conditions that he

shall not leave the premises without being accompanied by his

third-party custodian or his attorney, that he shall leave the

facility for limited purposes only (such as religious worship and

participating in his legal defense), that he shall not have

access to communication by the internet, that he shall be allowed

only monitored communication with others via telephone and

traditional mail, and that he shall be subject to other

appropriate conditions.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Revoke

Magistrate Judge’s Detention Order, filed March 27, 2013, is

hereby GRANTED. As there is a waiting list for placement at

Mahoney Hale, Pretrial Services is directed to place Defendant on

the wait list. Once bed space is available for Defendant, the

Court will hold a pre-release hearing to address the reasonable

conditions of release that will be imposed to address the risk of

non-appearance and danger to any other person and the community.

IT IS SO ORDERED.

141

DATED AT HONOLULU, HAWAII, April 22, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

USA V. BENJAMIN PIERCE BISHOP; MAG. NO. 13-00207 LEK-RLP; ORDER
GRANTING MOTION TO REVOKE MAGISTRATE JUDGE’S DETENTION ORDER,
FILED MARCH 27, 2013

Kobayashi detention order

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