USA v. Fesolai

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LETANE FESOLAI,
Defendant. Case No. 3:14-cr-00006-SLG
ORDER ON DE NOVO REVIEW OF DETENTION DETERMINATION
Before the Court at Docket 32 is Defendant’s Notice of Bail Appeal to the District
Court and Request for a De Novo Bail Review Hearing filed on March 21, 2014. 	Mr.
Fesolai seeks a de novo review of his bail request and a de novo bail hearing, in
response to the Magistrate Judge’s order of continuing detention that was entered on
March 7, 2014. On March 28, 2014, the Government responded.1 A delay in receiving
the transcript of the bail review hearing then ensued, with the transcript of the hearing
provided to this Court on April 10, 2014.2 Mr. Fesolai is currently also being detained by
a separate order entered in United States v. Fesolai, Case No. 3:09-cr-00055, in
connection with a Petition to Revoke Supervised Release that has been filed in that
case.3
Section 3145(b) of Title 18 provides that “[i]f a person is ordered detained by a
magistrate judge, . . . the person may file, with the court having original jurisdiction over
the offense, a motion for revocation or amendment of the order.” This Court has original
1 Docket 34.
2 See Dockets 37, 38.
3 See Docket 100 in Case No. 3:09-cr-00055.
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jurisdiction over the offense. 	Consideration of the bail request is de novo;4 meaning
that the Court does not to apply the standard of review appropriate to an appellate
court. 	Rather, the statute confers a responsibility on the district court to “explore and
redetermine factual issues if that proves necessary.”5 The district court is to “review the
evidence before the magistrate and make its own independent determination whether
the magistrate’s findings are correct, with no deference. 	If the performance of that
function makes it 	necessary or 	desirable for 	the 	district 	judge 	to hold additional
evidentiary hearings, it may do so, and its power to do so is not limited to occasions
when evidence is offered that was not presented to the magistrate.”6 But “[e]ven under
the proper ‘de novo’ requirement, the district court, while empowered to do so, is not
required to hold an evidentiary hearing when no evidence is offered that was not before
the magistrate.”7
This Court has reviewed the case file, including the transcript of the bail review
hearing held before the Magistrate Judge on March 7, 2014, as well as the Revised
Pretrial Services Report dated April 1, 2014.
Mr. Fesolai has proposed that he be released pretrial subject to the following
conditions:
 	Released to the custody of his mother, Pamamao Luafau, and step-father, as
well as his employer John Mahaney;
4 United States v. Koenig, 912 F.2d 1190, 1191-92 (9th Cir. 1990).
5 Id. at 1193.
6 Id.
7 Id.
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 	$50,000 cash appearance and/or performance bond;
 	24-hour electronic monitoring;
 	Curfew from 9:00 p.m. until 6:00 a.m.;
 	Random urine analysis for illegal drug use; and
 	Maintain employment with Jiffy Lube, under the supervision of employer John
Mahaney.
Mr. Fesolai has been charged with drug trafficking offenses in this case for which
the potential term of imprisonment is ten years or more. 	Therefore, pursuant to 18
U.S.C. § 3142(e)(3)(A), there is a rebuttable presumption “that no conditions will
reasonably assure the appearance of the person as required and the safety of the
community.” 	That presumption shifts a burden of production to the defendant, which
Mr. Fesolai fulfilled when he presented the testimony of his step-father, his mother, and
his employer, at the bail review hearing before the Magistrate Judge. 	But “[t]he
presumption [of the defendant’s dangerousness] is not erased when a defendant
proffers evidence to rebut it; rather the presumption ‘remains in the case as an
evidentiary finding militating against release, to be weighed along with other evidence
relevant to factors listed in § 3142(g).’”8 This Court is to apply the four statutory factors
listed in § 3142(g) to determine if pretrial detention is warranted: (1) the nature and
circumstances of the offense charged, including whether the offense is a crime involving
a controlled substance; (2) the weight of the evidence against the person; (3) the history
and characteristics of the person, including the person’s character, physical and mental
8 United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008).
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condition, family and community ties, employment, financial resources, past criminal
conduct, and history relating to drug or alcohol abuse; and whether the person was on
probation 	or 	parole 	at 	the 	time 	of 	the 	current 	offense; 	and 	(4) 	the 	nature 	and
seriousness of the danger to any person or the community that would be posed by the
defendant’s release.9 “A finding that a defendant is a danger to any other person or the
community must be supported by ‘clear and convincing evidence.’”10
Consideration of those factors here, based on the evidence proffered by Mr.
Fesolai together with the information set forth in the Court files and the Revised Pretrial
Services Report, demonstrates the following:
(1) The offenses charged are all felony drug trafficking offenses, two of which
carry a mandatory minimum sentence of 10 years, which would be increased
to 20 years in light of Mr. Fesolai’s previous federal conviction for conspiring
to distribute methamphetamine, pursuant to 21 U.S.C. § 841(b). 	The Court
has no other information at this time regarding the nature and circumstances
of the offenses charged.
(2) The weight of the evidence against Mr. Fesolai with respect to the current
charges is unknown, except that a grand jury returned a true bill that indicted
Mr. Fesolai for each of these crimes.
(3) Mr. Fesolai was born in 1985, and has been convicted of two felony offenses
as an adult – attempted sexual abuse of a minor in the second degree and
federal drug trafficking conspiracy. 	It appears that he has been incarcerated
9 Id. at 1086 (citing 18 U.S.C. § 3142(g)).
10 Id. at 1086 (citing 18 U.S.C. § 3142(f)(2)(B)).
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for several years of his adult life. He was also convicted of disorderly conduct
in 2007, and shortly after was determined to have violated the conditions of
his probation in that case and was sentenced to 80 days in jail. The Revised
Pretrial Services Report indicates at one place that Mr. Fesolai was released
from custody on June 7, 2012, but indicates in another place he was not
released until the following year – June 7, 2013. 	In either event, it is of note
that Mr. Fesolai is alleged to have paid $51,000 in cash for a new garage in
September 	2013, 	not 	long 	after 	his 	release 	from 	several 	years 	of
incarceration, and where he lists his income as $1,200 per month from Jiffy
Lube. 	And it is of considerable concern that the current offenses are alleged
to have occurred when Mr. Fesolai was on both federal supervised release
and state probation for his earlier felony convictions. And yet Mr. Fesolai has
demonstrated that he has a supportive family and an available employment
opportunity. 	Nonetheless, this Court was left unpersuaded, upon reviewing
the testimony of Mr. Fesolai’s parents and the Jiffy Lube employer, that these
individuals could adequately supervise and control Mr. Fesolai at all times so
as to ensure that Mr. Fesolai remained in full compliance with his conditions
of release. 	In particular, Ms. Luafau testified, at least at one point, that she
was Mr. Fesolai’s third party custodian when he was found to have violated
the conditions of his release.11 And Mr. Mahaney, while to be commended for
seeking to help convicted felons reenter the job market, described a business
11 Ms. Luafau later testified that she was Mr. Fesolai’s third party custodian for the attempted
sexual abuse charge.
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in which he is so busy that meaningful and constant supervision of Mr.
Fesolai during working hours would appear to be unattainable.
(4) Mr. Fesolai’s prior criminal history demonstrates that the community would be
at considerable risk with respect to both potential sexual abuse and drug
trafficking were he to be released pending trial.
Upon 	consideration 	of 	the 	foregoing 	factors, 	and 	based 	upon 	this 	Court’s
independent evaluation of the evidence and information in the Court’s file, and the
rebuttable presumption militating against pretrial release for these charges, the Court
finds that the evidence is clear and convincing that the continued detention of Mr.
Fesolai is warranted. 	The combination of conditions proposed by Mr. Fesolai will not
reasonably address the safety of other persons and the community. 	Mr. Fesolai’s
request for an additional evidentiary hearing to present the same witnesses that testified
before the Magistrate Judge is denied, as it is unnecessary to the Court’s determination
of this issue.
DATED this 11th day of April, 2014, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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