9th Cir. Reams Feds After Court Rescinds Bail

     (CN) – Ninth Circuit Judge Alex Kozinski called an order requiring an indicted postal inspector to have no contact with potential witnesses “unjustified and probably unconstitutional” in a decision ruling the trial court must justify the inspector’s pretrial confinement.
     Quan Pham Howard, a U.S. Postal Service inspector from San Jose, was indicted on charges of stealing items, including prescription drugs and valuable items, in July 2014.
     In January 2015, prosecutors moved to revoke Howard’s supervised release, saying he repeatedly violated requirements prohibiting contact with current postal service employees who are potential witnesses in the case.
     U.S. District Judge Lucy Koh granted the request, but on Friday a three-judge panel of the Ninth Circuit ordered Koh to clarify why she revoked Howard’s release.
     “The nature of the conduct on which the district court based the revocation order is not clear from the record,” the ruling stated. “In particular, it is not clear whether the district court found that there is probable cause to believe that appellant has committed a crime while on release. Nor is it clear whether the district court found that there is clear and convincing evidence that appellant violated any other condition of release. We therefore remand the matter to the district court for clarification and for further findings to the extent further findings are necessary.”
     Kozinski went further in a concurring opinion, saying he was “troubled” by the conditions of release Howard was accused of violating.
     “According to our law, there are only two considerations the district court may take into account in determining whether to release a defendant, and what condition to impose on such release: (a) ensure that he is not a flight risk; and (b) ensure that he is not a danger to the community,” Kozinski wrote.
     He said Howard’s counsel “unwisely consented” to conditions of release requiring Howard not to contact any postal service employees except his supervisors.
     “Preventing the defendant from talking to individuals who are potential witnesses at trial falls into neither of these categories,” Kozinski wrote. “It certainly does not show a propensity to flee nor, of itself, is it evidence of being a danger to the community. Merely talking to a potential witness, even about the subject of his likely testimony, is not illegal.
     “The government does this again and again with every potential witness, as long and as often as it wishes. It seems wholly inappropriate and unfair to give the government unhindered access to witnesses yet throw the defendant in the slammer for doing the same,” Kozinski wrote.
     He said there was no evidence that Howard engaged in witness tampering.
     “I see nothing wrong with Howard’s behavior. If he is not encouraging witnesses to lie or testify in particular ways, how is this “pressure”? Why isn’t he entitled-just as well as the government-to test the witness’s memory and let him know the facts as he (Howard) remembers them? If this amounts to pressuring witnesses, it is far less than the pressure the government often puts on witnesses when it tries to prep them to testify in its favor. The government does such things all the time,” the former chief judge wrote.
     He added that judges “have no dog in this fight,” and are only interested in applying the rules fairly.
     “If Howard is to be prevented from talking to the post office witnesses, then there must be an equal prohibition applied to the government. But if the government is going to be allowed to talk to the witness, defendant must have equal access. It’s only fair,” Kozinski concluded.
     Howard’s attorney, Daniel Barton with Nolan Barton Bradford & Olmos in Palo Alto, California, and the U.S. Attorney’s Office in Sacramento did not immediately respond to requests for comment.

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